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National

AK: Supreme Court declares law requiring all sex offenders to register unconstitutional

The Alaska Supreme Court has ruled that the state’s sex offender registry law violates offenders’ right to due process.

In an opinion handed down Friday, the court — voting 3-2 — found the law requiring all offenders to register unconstitutional unless offenders are first given the opportunity to demonstrate they aren’t a danger to the public. Full Article

Decision

Join the discussion

  1. Joe

    “…given the opportunity to demonstrate they aren’t a danger to the public”

    Bizarre. Nothing short of bizarre.

  2. CR

    “ASORA is overbroad because it imposes its requirements on all persons convicted of designated offenses without affording them a hearing at which they might show that they are not dangerous,”

    and

    “We also conclude that ASORA violates due process, but its defect may be cured by providing a procedure for offenders to establish their non-dangerousness.”

    So if the state of Alaska creates such a procedure in order to satisfy due process, will it just be a farce? How will anyone establish they are not dangerous? Isn’t that like proving a negative?

    It seems to me that due process would be served by the state having to establish dangerousness before adding someone to the list. That would lay that difficult burden at the state’s feet, where it properly belongs, since otherwise they should not be able to deprive a person of his liberty.

    • Gralphr

      I think 5 to 10 years offense free is proof enough. Some states say 25 years. But really!!!!!?? 25 years is a long time and if you eventually have children, they would be grown before youd be able to provide them with a normal childhood.

    • Dizz

      @CR that is spot on – This is positive news however, the ‘procedure’ would need to be fair and the bill should be picked up by the state or feds (polygraph, therapist analysts and recommendation, etc.).

      I feel like we are just going to be in a holding pattern in AK as we are in Michigan as they recently had the same outcome.

      That said; how would one prove they are not going to commit a crime in the future? That is impossible.. the only component the courts could use as a barometer would be the offenders past criminal history and the contents therein?

      What a mess…

    • John M.

      If you try to prove you are no risk at the time of conviction, it’s much harder to do than after the time that science says it takes to be as safe as some other population that doesn’t register.

      • Ecrc

        If you go by the offense and criminal history , many people will prob be considered a risk , but if you go by the time you been offense free and abiding by the pro or parole , been in counseling many years , has stable life with wife , job and not reaffended after so many years , it should be part the assessment in proving one is not a risk , polygraphs can fail at the slight of anxiety or health issues , they should not go by no polygraph , recommendation , my hub been on this stuff for ten years now polygraphs every 6 months , failed two passed rest , even when you tell truth and all it can pick up a deception , false ness , , , anyways , I believe this good news , maybe those who truly changed for the good been offense free many years and in compliance , this would help them prove that a past Does not dictate whom they are today and people will see that the registry was a big Unconstitutional way of punishing people for their past and present , because they make laws every year , something else that could hurt stable families and their children whom was not and is not a victim , it’s like they don’t want anyone to have a future , no wife hub child , because of ones wAy past , they ripping loving great families apart !!, I’m tired of this !! My hub taken accountability for his past he been in probation , counseling , offense free a long time , and he’s a great father and our son loves his daddy , tenn law devastated our son and they don’t care !!!! If Alaska can state this Tenn and every 52 states should do same !! Give the offenders an opportunity to prove they aren’t a risk by looking at their present life , not their past , Jesus forgiven why can’t the world !

        • Gralphr

          It should be based on your conduct post imprisonment. I’ve been out 12 years, and now married with children of my own, no probation or parole, obtained a bachelor’s degree , and have always worked a steady job, staying out of trouble. That should be enough proof I’m no threat!

    • Constitutionalist

      Not being totally familiar with the pre-release screening done by the AK DOC I presume each offender is put before “the board” and it is determined, in the absence of the inmate, whether they should be released or recommended for civil commitment. If the inmate passes “the board” review and completes the classes as mandated by the terms of 85% supervised release the State has already proven in their own records that the offender is not a danger.
      Why are these State and public records not being used to show that the State already cleared these individuals?

      • AJ

        @Constitutionalist:
        You’re exactly right. As part of the whole sentencing process, including release, the State must do some sort of risk assessment. I’d love to hear the State’s argument that I’m of such low risk as to be able to roam freely in society…but I’m such a risk that society must be notified I’m roaming freely! You can’t have it both ways folks. Keep in mind those assessments would be without any “cred” built up being offense-free in society, without getting a job, without further education, etc.
        IOW, it would be the worst-case, or roughest, assessment of an individual. Time would only help one who keeps clean and/or improves thereafter.

        That the State has risk assessments and doesn’t use them is a weakness, IMO.* If the State were truly interested in helping the public protect itself, it would let them know which are risky and which are not. Instead it just says, “here public, here’s a huge list of people who may or may not be a problem. You figure it out…even though we’ve already done the risk assessments for you, at your expense.” I get that SCOTUS said the scheme doesn’t have to be perfect, but how wise is it to make it more confusing and bloated when the data already exist to keep it a bit more precise? Oh I forgot…it’s actually about punishment, despite any and all protestations by Government.

        As I’ve said many times, “individualized risk assessment” is a phrase that keeps coming up in these wins. That, I feel, is where registries are headed. They may not go away, but I believe they will be tailored in some manner–sadly with a bit of “overcatch” remaining.

        *Properly litigated, I think the State can be screwed coming and going. If it has data and doesn’t use it, it may get egg on its face. If it doesn’t have data and makes claims, as in Snyder at the 6th, it may get egg on its face.

      • CR

        @Constitutionalist: “If the inmate passes “the board” review and completes the classes as mandated by the terms of 85% supervised release the State has already proven in their own records that the offender is not a danger.”

        @AJ: “I’d love to hear the State’s argument that I’m of such low risk as to be able to roam freely in society…but I’m such a risk that society must be notified I’m roaming freely! You can’t have it both ways folks”

        Are you both making the incredible argument that “danger” and “risk” are wholly binary “on/off” “yes/no” “one or the other” determinations, with no consideration of degree, no gray in between?

        I see no reason why the state couldn’t argue that your risk is not high enough to warrant civil commitment, yet not low enough to escape registration and notification.

        Of course, I completely agree with you @AJ when you say “… it’s actually about punishment, despite any and all protestations by Government.”

        • AJ

          @CR:
          “Are you both making the incredible argument that “danger” and “risk” are wholly binary “on/off” “yes/no” “one or the other” determinations, with no consideration of degree, no gray in between?”
          —–
          Absolutely not. Both exist on a continuum, but they are related. Consider:

          Risk: The potential danger that threatens to harm or destroy an object, event, or person. (https://legal-dictionary.thefreedictionary.com/risk)

          Danger: assailability, crisis, defenselessness, exposure to harm, hazard, helplessness, jeopardy, lack of protection, lack of safety, liability to injury, menace, nonimmunity, penetrability, periculum, peril, perilousness, precariousness, pregnability, risk, threat, unguardedness, vincibility, vincibleness, vulnerability. (https://legal-dictionary.thefreedictionary.com/danger)

          Notice how each definition uses the other word? Risk is a measure of danger, and danger is a type of risk.

          All I’m saying is they try to have it both ways (surprise!). If a State says I’m low risk, how can I be a danger? Danger is associated with elevated risk. If I’m a danger, I say it’s incumbent upon the State to do more than just post my BS online or send out flyers. If I’m not a danger, then my risk to public safety would seem to be negligible or de minimus.

    • Q

      Huh, SCOTUS03, expressed the opinion the SOR regime ” was not dangerousness based” but based on ” fact of conviction” in determining underlying INTENT outside the acts preamble applied expost. It’s civil nature was regulatory based on those observations ( majority). This court’s opinion is directly INVERSE to precedent and perhaps another substantive change in heart as expressed by Mr. Kennedy in NC V Packingham.

  3. Steve D

    Wow! This is huge!

    • Facts should matter

      I’ve seen rulings like this before in years past only to lose momentum and fizzle out into nothing.

      Don’t get too excited.

  4. mike r @ Chris F. AJ, or ??? New Email

    Can anyone cite the most recent CA SC case where the SC has upheld or struck down CA SORA ???

    @ Chris, AJ or ?? my old Yahoo email is no longer any good. I got a new phone with new number and I am locked out of that email. Hit me at mikeys20192019@yahoo.com so we can stay in touch.

    So this case I a still reading but it is encouraging so far.

  5. mike r

    My god what a brilliant opinion and I am only half way through. This is the template I needed for a CA state action, with the modification of case law and the CA constitution. I have tried before to find case law that CA SC has had and I cannot really nail down the concluding case that it is constitutional or unconstitutional in CA.

  6. CA cool RC

    I must have misread the headline…

    The court didn’t, however, overturn the law. Instead, it sided with the state’s argument that public safety interests justify the infringement of offenders’ civil rights.The court didn’t, however, overturn the law. Instead, it sided with the state’s argument that public safety interests justify the infringement of offenders’ civil rights.

    • mike r

      Love the entire opinion until the end (but it is still encouraging and definitely a giant leap ahead for our side), and it is just in time for me to use some of it in my appeal, but definitely in a CA case if I cannot find case law in contradiction from the CA SC. The part I do not like is,
      “If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.”

      Now wait a minute, the state is violating fundamental rights but the plaintiff has to prove he is not dangerous? What happened to innocent until proving guilty and the fact of presumed innocence? If it is a punitive statute then what are the elements of the crime in the statute? The statute is also substantively defective because a criminal statute has to has the prerequisite criminal element that has to be proven beyond a reasonable doubt in front of a jury of my peers. Although the statute is triggered by an offense, the element of the statute IS re-offending or recidivism.

      Beautiful opinion though, except for the remedy is flawed in my opinion. The state should have to bring a charge and prove the offender is a recidivist in order to apply the statute beyond parole or custody. Not the other way around where a person has to prove their innocence. That is against all canons of law.

      • TS

        @miker

        Excellent summation!

        The state is wrong as you say. They should do an assessment at the beginning not afterwards which I could see them, if smart enough, doing going forth. For those listed today, going to need to prove it at state expense preferred.

        This would be the time for all the “experts” to offer solutions, except the one everyone dislikes here.

      • AJ

        @mike r:
        “If Doe can show at a hearing that he does not pose a risk requiring registration, then there is no compelling reason requiring him to register, and the fact that ASORA does not provide for such a hearing means that the statute is unnecessarily broad.”
        —–
        That same sentence leaped out at me, too. I posit that “[i]f Doe can show at a hearing that he does not pose a risk requiring registration, then there is no” *rational basis* to “requir[e] him to register[.]” If I can as-applied prove, through whatever State-sanctioned processes (which there’s no way in h3ll will be done on the State’s dime), that I’m not a risk, there’s no rational argument to say I should be on the registry! So, what State-sanctioned processes exist? Well, the exact ones they use to determine risk in a Pre-Sentence Investigation and the ones used by therapists to determine whether one must continue in therapy. IOW, the State already has risk-assessment tools in its arsenal, so the only argument would be where the breakpoint is. Toss in the desistance rate Hanson modeled, and it becomes easier and easier to prove* one is no longer a risk beyond that of society as a whole.

        *Proving a negative can be done, but it’s dependent on the *type* of proving sought:

        1) https://www.psychologytoday.com/us/blog/believing-bull/201109/you-can-prove-negative. The article makes a valid point–and distinction–between “beyond reasonable doubt” and “beyond absolute doubt.” With reasonable doubt being the legal standard of our court systems, it would seem one could actually prove the required negative.

        2) https://departments.bloomu.edu/philosophy/pages/content/hales/articlepdf/proveanegative.pdf. This article is a bit more for the wonks out there, but still makes some very good points.

        • mike r

          @AJ, absolutely right. It is very easy to show that we are no longer dangerous per their own tools or authoritative/expert opinions.
          What is going to happen is these fools are going to try to manipulate the court by putting parameters that a court has to follow, i.e. use their own psychs on their payroll, require lengthy waiting periods, making arbitrary requirements, etc….

        • mike r

          I find it hard to believe no one in Nevada has challenged that state’s adoption of a offense based tiers from what I believe was an actual risk based. It is becoming a common theme in other states that you must have risk based and is becoming more entrenched with every state SC win.

        • TS

          @miker

          If AK state gov’t does what you say about using their own payroll for staff to administer this “safety test” for those who apply to be removed, then that presents potential conflicts of interest (COI) because the state has an inherent interest in keeping people on the registry out of “safety” and thus the administering the “safety test” could be skewed towards maintaining that goal vs using independently verified experts who are not in the system and have not COIs with clients or the state.

          This is where a group in AK similar to ACSOL raises issues to ensure it is fully compliant with transparency and the real ability for folks to be removed through a fair and equitable method.

          This was a big deal in CO with polygraphers on the state dole doing the testing. The CO legislature passed a bill to remove these polygraphers from state dole but Gov “Hick”enlooper, former brew brewer before Govnuh, vetoed it before leaving office (we discussed that here).

    • CR

      So perhaps that is why the court says the due process defect in the law can be cured by making the former offender prove a negative instead of having the state prove a positive. Same old BS.

      I want to read the dissents to see if the other 2 justices would have found no due process violation.

      • Rusty

        The dissent is at the end of the ruling. Essentially they say:
        1. The law should receive a low level of scrutiny because the legislature made a finding that sex offenders are dangerous and it is important to regulate them.
        2. Sex offenders already had their hearing before they were convicted.. the registration requirement is based on the conviction so it has already been tailored to the offender.
        3. It would be difficult to set standards by which someone could prove they are not dangerous, so why bother trying.
        4. If a hearing is allowed, it should only allow for removal of the public notification requirement; all the other registration requirements should still apply.

  7. AJ

    I have yet to read the Opinion, but it appears to be a nice one for us in the “win” column. I would find it supremely ironic if AK appeals this to SCOTUS, SCOTUS takes it, and then rules in a way that chips away at Smith v. Doe–which for those not in the know also came out of AK.

    What hit me between the eyes was that same phrase that seems to be bubbling to the top in more and more cases: “individualized risk-assessment.” I wholly believe the (slow) propagation of that concept is due to the 6th CCoA in Snyder.

    The AK SC hit the nail on the head about the registry laws being over broad with no means of escape and with assessment of the injury to one’s right to privacy–sanctioned by the State no less and with no determination as to its propriety or usefulness.

    • CR

      Yes, it might be good for us for AK to appeal it to SCOTUS. Or it might be bad. But I doubt they will do that since the AK Supremes told them how to get around the “defect”.

      • Rusty

        It looks like they left it up to the superior court to set the standards for the hearing. They did that because they didn’t want to overturn the law. They said that if they overturned the law, the online registry would go dark and offenders would stop registering until the legislature could pass a new law. They worried there would be challenges if the new law is applied retroactively.

    • CR

      It is a win, but perhaps with no teeth.

    • Tim

      What can you do with a database more contrary to individual liberty than to indenture humans to them ( database) & their mandatory maintenance?

      It was always about constitutional USES THERE OF. BIG BROTHER OPTED FOR UNFETTERED USE THERE OF! To maintain the appearance of political legitimacy via good faith. It was those who chose AK to begin with as the test case. The presumption that more was necessary evidences what was in place prior was ineffective. To presume no man learns, nor has capacity to do so, whittles away the foundations of human justice systems themselves.

  8. CR

    I’m glad that the AK Supreme Court found that the AK registration law is unconstitutional on due process grounds. I’m dismayed that the AK Supreme Court also provided a recipe to the AK Legislature to overcome the defect.

    The AK Supremes are, of course, telling the legislature how to get around the “defect” in the law. The procedure that the legislature puts in place will no doubt be one that almost no “sex offender” will be able to prevail with.

  9. G4Change

    WOW…this is BIG. And from the state which helped to bring us the “frightening and high” ruling from SCOTUS. I hope this sticks!

    • Quantized

      Not sure having the burden of proof is any “due Process” This is a good sign but it will most likely end up with a high bar that the majority will not be able to hurdle Not to mention the costs to show an individuals “risk”

  10. Mike G

    So let me see if I’ve got this straight. For everyone currently on the Alaska registry, tough luck. But before anyone new can be added, they must have a hearing?

    Sorry, I didn’t read the whole decision. Is there something which gives current registrants retro-active opportunity for a hearing?

  11. Jason

    This is a decision for all to celebrate. This is a beginning to an end of EVERYONE registering in conformity for years……

  12. mike r

    My take is that now anyone can file petition in AK state court and demand a determination hearing until the legislature sets up some judicial process. So now AK and Hawaii SC have found unconstitutional without risk assessments, these states surround CA so I would bet the CA SC would fall right in line with these other liberal courts.

    • CR

      Don’t you think it is more likely to be an administrative process than a judicial one? I’m not sure about Alaska, but in most states the point at which we are required to register is upon parole or the start of probation, and it is an administrative procedure. The judicial phase is over by then.

      As someone else mentioned, it’s going to be pretty hard to show non-dangerousness at that point, so unless the process is one that can be repeated down the road, I suspect not many will be able to do so. Yet, the courts may say that due process has been accorded.

  13. Harry

    The problem here, is that the US governments has invented a lie that most of the world believes, including the courts. There is too much egg of faces and too much money in powerful, crooked hands for this to go away soon. I am glad to hear the news and we have the truth and it will be a turtle’s pace to catch-up with the lying rabbit.

    • Tim

      @Harry,
      Their databases are viewed as key to maintaining their political security. Queer how the D’s are chiding the breakup of big tech, when they sold registrants out to big data cerca 94. Party of the little guy, me thinks not.

      FAANG firms are heading that off by lobbying efforts in congress. Amazon is bankrupting so many former big $ donors ( shopko in WI) that politicians are feeling the pinch. Billionaires fighting over unsure markets and politicians looking for votes and campaign cash. Rs these days ARE ALL BIG DATA, and attacking the surveillance saints who desperately want to keep their toys. Fact is the average American knows their IS NO SUCH THING AS A SECURE DATABASE.

  14. Steveo

    I have a question. Which of us even had this case on their radar? This sort of took us by surprise. I suppose good news is always best as a surprise, but I’m starting to wonder if there is a way to have a better database of all of the litigation going on out there. I know there has been some effort to do that, but I never saw this case on any list.

  15. Tim

    As if the founders had not considered ALL CRIMES when contemplating the RATIFICATION of a prohibition upon congressional use of ex post law making. Art1.

    As if ” legitimate public interest ” IS TRUTHFULLY reflected in the CHOICE to use ex post facto language. “Was in prison for.”

    THE RATIFICATION OF CERTAIN PROHIBITION ITSELF SUPERSEDES any notions of justifiable use by congresses thereafter. By definition use of ex post facto laws to exact retribution MUST FIRST ORIGINATE NECESSARILY from within the people’s house with intent satisfactorily demonstrated by the class being targeted – criminals.

    SOR itself was at its heart retributive, plain indenture(13th). IMHO SORNA hasn’t merely crossed the punitive bar, but more expressly displays ORIGINAL UNDERLYING AND PURPOSEFULLY OBSCURED INTENT of the ACT. To begin the enslavement of humans to gov database maintenance. Free men are paid wages to maintain machines. Some don’t like that concept. They prefer free data input.

  16. kat

    Registrants are no more at risk of re-offending than those convicted of other crimes. Why should registrants have to somehow “prove” they are no longer a risk to the community when many of them were never a risk to the community to begin with?
    We take away the driver’s licenses of those convicted of DUI’s for various amounts of time. Some have to complete safety driving courses or have devices installed in their cars in order for them to be allowed to drive again. There’s no way to know that they’re not a risk behind the wheel, but we let them drive just the same.
    Registrants shouldn’t have to “prove” anything to anyone once they’ve completed their prison/parole time.
    Just like those who drive drunk, if you mess up, expect there to be consequences, otherwise registrants should have the same freedoms as anyone else.

    • P

      SOs are actually far, far less likely to re-offend yet this ridiculous and life-altering registration regime persists.

    • Dave

      So true! Imagine if a drunk driver had to prove they are not a danger to society. It’s very expensive for a registered citizen to have to do this and in most cases we don’t have jobs in the bad states.

      I recently registered as I have for almost two decades. I decide to read my registered emails. Low and behold they mis spell one of my emails so I tell them. They ask how long has this been wrong? I respond….. I don’t know because I didn’t mis spell my email you did. Then they go get a detective to decide if I committed a crime. I say…. My crime is you can’t spell? So she says…. it’s ur responsibility to make sure everything reported is accurate.

      I catch typo mistakes all the time when I checked. Then I stopped checking because if I catch a typo how do I correct it? I only have a few days to correct it. After twenty years I have many things I have to report so I just keep things the same. I don’t want to be missing typos because now I’m old and I miss stuff. If I spell it correct and they mis spell it after entering it wrong that’s just not my fault nor should it be. Trying to make the governments clerical errors a registrants fault is just wrong. I tell my politicians about my real life situation and they say something stupid like don’t be a sex offender then. I usually get mouthy and say….. When I pled no contest they didn’t even have a public registry or photos. Politicians just don’t care. I never would have agreed to this nonsense twenty years ago if I had known all these stupid added traps would exist. I did my 90 days and thought I was done. Now I can get ten years for typos. I couldn’t get that long on my original charge. These politicians are nuts. My original charge was two years max. Some how now a state failure to register is four years and federal is ten years. Heck I can’t even keep track of all the changes. I have PTSD now as a old man from being shell shocked from when every political season I had to dread what new insane laws would happen and apply to me. These changes are harder than when I was on probation. I’m suppose to get off in five more years if I don’t get charged for crap I can’t even control or notice. What a crazy country we live in.

      Drunk drivers really have it easy. My neighbor has five DUI’s and he has a pretty good job. I seen him riding around in his boat with a twelve pack of Coors. The police just left my house for the yearly verify of my address.

    • ReadyToFight

      Kat, I was reading this thinking the same thing. It’s really annoying and inflammatory to think how so many people in our boat get the shit end of the stick when it comes to “justice” “due process” and moving on with our effing lives.

  17. Bay Area Resident

    This is huge!
    Sure, it sides with the Legislature, but if we can tie this in with Kelley v Municipal in CA, maybe we can show how this may be done. Maybe it could be shown as a way to give judges leeway.

    Rome was not built in a day. I will take due process over waiting years any day.

  18. travis

    plain and simple 99% of our government is EVIL !!!

    Im incarcerated ONCE a year when I have to WASTE MY TIME, MONEY FOR GAS and FORCED to goto the PIG DEPARTMENT and ANSWER Questions in front of a PAPER PUSHER !

    In time this will make it around and be challenged ALL OVER and thrown out EVERYWHERE, At least here in CA any NEW law can not be retroactive, and eventually the WHOLE Registry will have to be done away with !!

  19. Same Stuff

    Same stuff. These “hearings” to prove a negative will be like the petitioning process and Certificate of Rehabilitation process.

    I’m pretty jaded, unfortunately, when it comes to our corrupt government.

  20. AK

    As this AK decision has swirled around in the back of my cob-webbed brain the last few days, it struck me that Doe didn’t challenge the validity of the regulatory scheme (Smith) nor, beyond the ridiculous “you can’t make me because I’m from VA” claim, his having had his Due Process (DP) opportunity somewhere along the line (CT DPS). What Doe seems to have done is gone the next step and challenged the ongoing DP deprivation and the lack of any procedure to escape it. An interesting take, and obviously one with which a majority of the AK SC agreed.

    This may be a possible winning path going forward. One case that may give some help is Humphries vs. County of LA (https://law.justia.com/cases/federal/appellate-courts/ca9/05-56467/0556467-2011-02-25.html). In that case, the 9th CCoA found that the absence of a removal process from a “registry” violated a person’s 14th Amdt. Due Process rights. Granted, the Humphries were exonerated of the charges placing them on the “registry” so there’s a significant difference between their DP deprivation and ours. Still, part of that decision included the determination that mandatory checking of a “registry” and following prescribed procedures thereafter implicated one’s liberty interest and thus was a DP issue.

    [[Note: do not bother with the SCOTUS case involving the same parties. SCOTUS reversed other grounds, not the Due Process portion. The reversal was about a technicality involving a Section 1983 suit against County employees as defendants.]]

    Other cases that appear to provide some possible help or guidance include:
    Dupuy v. Samuels (https://law.justia.com/cases/federal/appellate-courts/F3/423/714/489834/)
    Valmonte v. Bane (https://law.justia.com/cases/federal/appellate-courts/F3/18/992/530989/)

    Whacking away at the DP deprivation is certainly a tall order, but apparently not an impossible one given the AK SC decision. If a DP deprivation is not a one-time, static event but an ongoing one, it seems perhaps challenging the sufficiency of the original DP deprivation is a way forward (see: https://supreme.justia.com/cases/federal/us/490/454 at 460).

    So ends my woefully sorry armchair legal exercise. 🙂

    • AJ

      Correction: the above was by me, AJ, not AK. Between the abbreviation for Alaska and the proximity of the J and K keys, I mistyped my own moniker. I knew I was getting tired and needed to do one more proof. I didn’t realize I needed to proof my own name. 🙂

    • AJ

      While reading the Wayne Logan piece the AK SC mentioned in Footnote 134, Mr. Logan makes the exact point I was fumbling for:
      *****
      [CT DPS v. Doe], while of critical importance, concerned government refusal to allow individuals to contest placement on a registry, not lack of access to relief postregistration. Surprisingly, to date the latter issue has seemingly been directly addressed on only three occasions, once in Tennessee and twice in West Virginia, and was rejected.
      .
      .
      .
      Despite the large shadow cast by [CT DPS], a persuasive claim can be made that a finding of current dangerousness, postregistration, would not be in the Court’s words a “bootless exercise.” Even if a conviction is the sole basis to justify registration in the first instance, as in Connecticut and the majority of state registration schemes, the fact that for at least some registrants state law allows for postregistration relief, based on rehabilitation in some shape or form, suggests the legal materiality of a subsequent evaluation. Likewise, in jurisdictions where registrants are placed in tiers, affecting either or both registration requirements and the extent of community notification, postregistration evaluation would appear material.
      *****
      So there does indeed seem to be a Due Process opportunity regarding relief. However, one would need to show what liberty interest or fundamental right would be restored were relief granted.

      As an update to what Mr. Logan says, we’re now 1-3 in court thanks to the Alaska ruling.

      I’ll probably have further thoughts and input about all this, but for now I’m off to read the Gamble Opinion…

      • Chris f(@ AJ)

        @AJ

        But, procedural due process challenges dont require a right being fundamental like a substantive due process challenge. So wouldnt they just need to show that the burden and deprivations by being put on the list did not get the adequate amount of due process based on whatever deprevations are claimed?

        • AJ

          @Chris F:
          I’m not 100% sure I get what you’re getting at…but I’ll take a stab anyway. 🙂 Yes, SDP is probably the “meatier” of the two. In the thumbnail understanding I have of them, SDP challenges go after the power the State claims it has in doing this or that, while PDP challenges go after the procedure in which the State administers this or that. Put another way, SDP goes after the law itself; PDP goes after how the law is applied.

          What I gather from Humphries and find perhaps helpful is there was no SDP violation (the law is a proper exercise of the State’s power), there apparently was no PDP violation for the deprivation (the law was properly applied in placing someone on it), but the was a PDP violation for not having a post-deprivation avenue for challenge and/or escape.

          Did I make any sense? (I gotta quit writing when tired!)

      • CR

        @AJ can you just explain for now what you mean by “… we’re now 1-3 in court …”? Sorry, it’s just not registering with me.

        • AJ

          @CR:
          I wondered if I was a bit too vague on that 1-3, but obviously I ran with it anyway. It’s a reference to the statement from Mr. Logan that a post-deprivation challenge has been tried three times (1x TN; 2x WV) and failed every time. Now we have the Alaska challenge, so we have one in the win column. Ergo 1-3.

  21. KM

    Everyone is missing the most important point. Since every challenge to the registry has evoked the SCOTUS case for Alaska, having Alaska now say that their original scheme is wholly different then originally permitted means…….EVERY SCHEME IS NO LONGER SAFE UNDER SMITH v DOE

    • AJ

      @KM:
      “having Alaska now say that their original scheme is wholly different then originally permitted means…….EVERY SCHEME IS NO LONGER SAFE UNDER SMITH v DOE”
      —–
      Not true. The exact AK law (Smith v. Doe) that SCOTUS upheld as Federally Constitutional in 2003 was found as-applied unconstitutional by the AK SC in 2004. Did that change anything regarding Smith? Absolutely not. The only thing cases like this show me is that there may be better traction in State Courts versus Federal ones. While all courts must abide by SCOTUS rulings, State constitutions and courts many times provide better, broader rights than at the Federal level. Key SCOTUS rulings have been reversals of State court rulings (Loving v. VA and Lawrence v. TX come to mind).

      What I feel is needed is a State court decision mirroring Muniz (PA) but with an opposite finding. Given SCOTUS already denied cert. on Muniz, it would be in a tough spot to deny cert on the opposite conclusion. As long as the lower Federal Courts and State courts keep getting it right (i.e. to our benefit), SCOTUS will have little or no reason to take up a case. However with growing Federal splits and State Court splits, SCOTUS will “have to” take up a case at some point to decide it once and for all. When it does, I believe it will shoot down a number of RC burdens for those off paper, and in an ideal world will walk back Smith some. (I don’t think registries will be found unconstitutional; I do hold out hope public dissemination may go away.)

      • Mike G

        @AJ

        Okay, so the registries may not be found unconstitutional and go away, but is there any chance the retro-active application of the registries could be challenged as ex-post facto violations (for those of us convicted before registries were implemented or those of us who were not required to register at time of sentencing)?

        • AJ

          @Mike G:
          IMO, unless and until it’s deemed something other than a non-punitive regulatory scheme (whether LEO-only or public), no. Or unless and until SCOTUS overturns Calder v. Bull (221 years of stare decisis staring decidedly at us–and SCOTUS has reiterated how important THAT is, Constitution and rule of law be damned), no. I’d pin my hopes on some sort of wisdom developing in the State Courts before I would expect either of the others to occur.

      • KM

        I disagree. This new case essentially says that the decided aspects of the AK registry by SCOTUS aren’t applicable anymore because the registry is very different than originally decided by SCOTUS. This means, new cases aren’t protected by Smith v Doe because, as we all know, the registry has expanded in ways never considered by SCOTUS.

        • AJ

          @KM:
          “This means, new cases aren’t protected by Smith v Doe because, as we all know, the registry has expanded in ways never considered by SCOTUS.”
          —–
          I respect your disagreement, and I personally agree with the tendency and trend. However, show me where in Smith SCOTUS put a limit on what a State can do. Smith merely said what the State already *had done* was kosher. Show me in AWA where Congress put a limit on what a State can do. AWA merely says “do at least this or you may lose Federal funding.” Both are floors, not ceilings. Furthermore, this is an AK SC decision using AK case law and constitution. That means any and every court outside AK can ignore it.

          While I do think the expansion beyond Smith is indeed unconstitutional, SCOTUS has never said that. It made oblique reference in Packingham, but that was a parenthetical inside dicta. A handful of State courts of last resort have said the expansion is unconstitutional *based on their State case law and constitutions* and some Federal courts have too, but that’s it. I do think SCOTUS has tipped it’s hand a bit in denying cert on Snyder and Muniz, but that’s nothing solid. That also means we have to take the long way around.

      • Tim in WI

        @Fed court splits,
        Alaska was chosen specifically to disguise ” showing up” aspects of SOR supervision.
        Avoiding the ” custody” extensions promulgated ” in it’s necessary operation” was key to maintaining a civil intent, but that was part 2of the courts initial question as a prima facie issue. Was there an easily recognizable ex post statute. SCOTUS acknowledged that part in the affirmative given ” A person who was in prison for,…..P&P for,….A sex crime. ” One obvious clue had to be countered by another thus the ” preamble. ”

        This reminds me of the time in biology dissection of baby pigs, my partner and I did the best job only to have our near perfect sample, switched by my H.S. national honor society prez. No honor left!

    • Chris f (@AJ)

      No problem AJ, you have been very active and busy jumping from discussion to discussion. 🙂

      Actually, what I was pointing out, is that, while a Substantive Due Process argument has the high hurdle to overcome of proving fundamental rights have been affected, a Procedural Due Process claim does not. PDP can be any type of deprivation of liberty or increased burdens where you just need to show that procedures were not adequate when compared with the deprivation and burdens placed on you. For instance, it might be fine for a court clerk to decide you shouldnt have a parking ticket dismissed for some excuse you have where only a $100 fine is involved, but it isnt ok for that clerk to take away your drivers license for a year.

      I brought this up because you mentioned “liberty interest or fundamental right would be restored” and I was thinking it didnt really need to be that extreme for PDP to kick in.

      • Tim in WI

        @Chris,
        The key to maintaining substantive ground for appeals( direct or indirect) is having not entered into plea bargain and the waiver of rights. While the plea ” bargain” often decreases vulnerability to incarceration ( exposure) for The presumption indicted it also has two caveats:
        1.ADMITTANCE OF GUILT
        2 VOLUNTARY WAIVER OF RIGHT.
        Each are found in Trial codes and are highly standardised
        The Substantive rights are found in state’s trial, sentencing and Appeal codes. Others can be found in statutes of limitations, by class or ” crimes” section.

  22. Chris f

    While it is a great step forward that a court recognizes the lack of due process to allow removal from the registry, it falls way short of the need for due process to be put on the list in the first place.

    The judiciary needs to grow the balls to insist it, not the legislature, should decide the need to be on a registry and the duration during the fair sentencing portion of the trial where both sides state their case. Then, like any judicially determined restriction, it can be requested in the future to be re evaluated and removed by the judiciary.

  23. mike r

    Yeah AJ you made the brilliant point that it is the ongoing public notification and ongoing liberty interest being violated because of the continuous registration and notification that is unconstitutional without a determination hearing.
    This is how the Hawaii SC court explained it point blank. State v. Guidry, 105 Hawaii 222, 96 P.3d 242, 251-52 (2004) and of course the Bani case.
    “The type of deprivation that flows from Hawaii’s [California’s] absolute lifetime registration statute does not involve stigma, but rather, infringes upon an individual’s right to be free from perpetual government intrusion. This goes to the very heart of liberty and does not fall within the ambit of the “stigma plus” analysis.”

    This completely bypasses Ct v Doe.

    Then of course we have what I believe your point being addressed by Guidry,
    ““This court concluded that Bani demonstrated that the public notification provisions of HRS chapter 846E will likely cause harm to his reputation, and to “tangible interests” in his personal and professional life, employability, associations with neighbors, and choice of housing. Id. As these interests are not implicated by mere initial registration alone, we must analyze registration anew.” at footnote 15.”

    I used a few other arguments as well but just what I posted should be enough to score in state court.

    As far as the AK case, I believe it was on state constitutional grounds so it is sealed deal regardless of SCOTUS just as Muniz was/is.

    Same with the Hawaii cases, Hawaii had to have determination hearings I believe and have since then sustained those hearings as far as I can tell.

    @ Fedup,
    mike r,
    Try this:
    https://capcentral.org/secure/search_advanced
    I also have all their weekly cases summaries saved dating back to 2012 and they are searchable.

    Thank you for the link but I am looking for CA SC cases specifically. I have not started really researching this yet but AJ makes the great point that it is going to be on state grounds and state constitutions in state courts (which I will be filing in CA soon) that are going to force the hands of the legislature to have determination hearings or procedures and stands the best chances for relief.

    • mike r

      @Fedup, I will definitely check out the source you linked as it appears you can maybe search cases for CA SC as well. I have not tried it yet to see if it is fairly easy to find related 290 decisions and the most up-to-date decisions.

  24. American Detained in America

    It seems to me, the burden of proof that a sex offender is or is not dangerous should be on the prosecution, not the sex offender himself.

  25. FinallyOffTheReg

    I have thought long and quietly about this “ruling”. I must approach it from the standpoint of something non-emotional. I have read the voluminous comments as well. All good ones and from all corners of the spectrum.

    Now, I may not be the brightest or most Legally adept, nor may I be the most introspective (often accused by the wife, LOL), but I have a thought.

    I feel this ruling is a “foundation”. Why do I say this? Regardless, it’s a nod to “Due Process”. Now, it’s not a perfect ruling by far. It still has gaps the size of Montana (sorry Montana folks). But isn’t this something that at least gives TEETH? It at least gives something to further carry the proverbial sword into battle.

    Heck yes it’s flawed. Heck yes it’s got a lot of “Guano” and messiness and imperfections. BUT, it’s something to grab ahold of in a *hitstorm of times when the pendulum swung all the way over.

    But it’s “Something”. Now the rest is up to us. The problem being, like what is being faced here in Connecticut with the same ideolog of basing the Reg on “Risk” versus “Offense-based” is: Who are the Arbiters of Such a Model? What tools are going to be used, what methods, what evaluations (all fatally flawed) and how much of this do WE foist upon ourselves in learning just what is needed in order for an average RC to defend oneself in the face of such a “Grim Jury”.

    I feel that this is an individual fight. That each person must learn how to counter and fight and defend and counter again, and fight again and LEARN the evil underbelly of the *hit that is used to justify this continued imprisonment.

    Look, these are INDIVIDUAL victories that are being made. They form the basis for further victories. It’s up to each of us to ride the Coat-tail of them. It’s a tough process, but there is now at least some “meat on the bone” of which to chew. It’s not the best, but at least it’s something. And I would at least proffer that we all as a Collective, get creative and get really laser focused and blow the roof off the dump.

    Fight, don’t settle. Be educated when a 500 dollar a week, full tank of gas and a shiny badge Parole Officer wants to give you *hit. Fight, don’t settle. Be educated when a Federal Probation Officer want’s to make some off the cuff comment or a snide remark during a home visit. Asking, “why do you have a gallon of peanut oil”? Type of stupid question. I would say in my normal life “for your mom”, but I can’t say that. LOL. But I do say and it’s true because I cook a lot of Thai Food. Open the fridge, I got more Nam Som than the local restaurant.

    So, I guess my misanthropic wanderings are summarized as follows: FIGHT! Do so with a firm grasp on the facts, and never ever “leave the boat”.

    Cheers

    • AJ

      @FinallyOffTheReg:
      Thank you for the post and analysis, and I’m solidly in your camp. It is only persuasive outside the AK courts, but it’s another persuasive case on the heap for us to offer a judge. IMO, every win, EVERY win, is another grain of sand on our side of the scales. Those scales are starting to tip ever so slightly our way. I wholly believe there will come a critical mass of State and lower Federal decisions that will “compel” SCOTUS to react (@Roger (I think it was him) is right, SCOTUS follows societal shifts, it doesn’t start them). Though this was only a State decision, it’s one of many that have found this, that, or another element of RC laws to violate some sort of rights in some manner or to be punitive in effect. As these cases pile up and get cited, the snowball can start building and rolling.

      Though I remain skeptical registries will ever go away, I do hold out hope they may return to being LE-only, and even then winnowed based on assessed risk.
      =====

      Finally…
      “why do you have a gallon of peanut oil”?
      —–
      “Because I can’t find 2-gallon containers to save my life.”

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