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
“…given the opportunity to demonstrate they aren’t a danger to the public”
Bizarre. Nothing short of bizarre.
“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.
Wow! This is huge!
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.
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.
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.
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.
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.
WOW…this is BIG. And from the state which helped to bring us the “frightening and high” ruling from SCOTUS. I hope this sticks!
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?
This is a decision for all to celebrate. This is a beginning to an end of EVERYONE registering in conformity for years……
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.
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.
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.
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.
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.
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.
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 !!
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.
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. 🙂
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
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.
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.
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.
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