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Janice's Journal

Janice’s Journal: Court Decision an Important Point on Path to Tipping Point

Another court has spoken the truth: registration is punishment.

That court is Division III of the Colorado Court of Appeals. The case is People v. In the Interest of T.B. which was decided last week.

This is a case that could be overlooked. After all, this court in only one of several courts of appeal in the state of Colorado. And the plaintiff in this case was a juvenile when he was convicted.

The reason the case should not be overlooked is that it is an important data point on the path toward The Tipping Point we are all seeking. A Tipping Point where all courts recognize that registration is punishment and that collateral consequences of every kind deny the civil rights of registrants and their families as well as violate the U.S. Constitution.

The main reason this case is important is that this court clearly ruled that lifetime registration is punishment. The Court in this case carefully reached its decision that lifetime registration for juveniles is punishment by distinguishing the facts of T.B. from the facts of Smith v. Doe. In the addition, the Court recognized that a “growing number of states are revising whether sex offender registration requirements are punitive.”

Further, the Court included in its decision an in-depth analysis of the elements of punishment and determined that the requirement that a juvenile register for life has public opprobrium consequences, constitutes retribution and is excessive. For example, the Court recognized that the requirement to register often leads to unemployment and homelessness. The Court also recognized that publishing personal information about a person convicted of a sex offense is a type of deterrence which is inherent in punishment. Finally, the Court determined that lifetime registration for juveniles is excessive because it is not tethered to a non-punitive purpose.

As important as it is to note the Court’s conclusion that lifetime registration for juveniles is punishment, it is also important to note that the Court did not rule on whether lifetime registration for juveniles is cruel and unusual punishment. Instead, the Court returned the case to the lower court to make that determination.

Finally, it must be noted that although the Court’s decision in this case focused upon an individual who was a juvenile at the time he committed two sex offenses, the court’s decision does not provide support for an alleged difference in lifetime registration requirements for juveniles and adults. Instead, the court repeats unsupported statements from other courts that juvenile offenders have “greater prospects for rehabilitation”. This lack of factual support could be advantageous because there is a plethora of empirical evidence which demonstrates that the prospects for rehabilitation for both juveniles and adults is very similar. It is a point that could and should be used in future legal arguments.

— by Janice Bellucci

Read all Janice’s Journals

Related

CO: Colorado Sex-Offender Registry Takes Another Brutal Hit
CO: “The ultimate scarlet letter”: A 29-year-old could get name off sex-offender registry for juvenile crimes if Denver court decides he’s being cruelly, unusually punished

Join the discussion

  1. Tim in WI

    The approach of comparing “case”( TB) with “established precident”(Doe) is an ideal approach to take in defense of those facing FTR cases. The presumption that humans stop learning is plain convenient and all to easy a reach given distorted perception of deviance.

    The people still fail to consider the subservient disposition of registrants to states database machine. They are indeed human free persons ( at liberty) indentured to A MACHINE & IT’S MAINTENANCE and under threat of felony for not! While registrants only provide data by SOR forms, but do not directly interface with the machine; restaurant’s personal data are a COMMODITY. By utilizing the machine Agents take The commodity to market. The data demanded is personal information gathered expressly to be stored on a database and utilized by whoever and whatever. IMHO the punitive aspect was always present in the regulatory regime as plain indenture under the 13th. The cruel notion may also reside in that enslaving the human and forcing their privacy subservient to the ” people’s ” machine needs.

    AS FOR UNUSUAL PUNISHMENT
    How unusual is it to indenture sexual oriented offenders to SOR machines databases today?
    Happens daily. M -F
    Is the SOR used as a tool in plea bargaining in today’s cases?
    Happens several times daily M-F.

    If a giant database, and unfettered use thereof, wasn’t a MUST for National Security then why build the facility near Saratoga springs?

    What was approved in Smith V was nothing less than unfettered AND unconstitutional USES thereof. The proof is in the pudding. Even deprivation of speech was at stake in SMITH V. DOE!
    Today personal data is exploited on databases everywhere.

  2. Facts should matter

    They’re gonna circle the wagon around Megan’s Law as long as they possibly can. It’s a “crowd pleaser” and an easy win for LEOs and politicians. It appeases the worrywart family unit for votes while they (the authorities) can take false recognition for “protecting” children.

    It’s a sick and twisted tilt-a-whirl ride that never ends because unscrupulous lawmakers continue to modify the law in their favor of it being administrative and regulatory instead of punishment.

  3. Eric

    Thank you Janice, because of you I believe our turn is coming in California. Too many people are seeing that grouping and categorizing all of us together is nonsensical, and that the registration is not only punitive but not working as it was intended to work. In Sand Diego a female acquaintance said she looked to see where in her neighborhood any sex offenders might be living and she said it was red dots everywhere. It was useless. Something is about to give.

  4. J

    Janice,
    You bring hope to a hopeless situation. Thank you for your work.

  5. Gralphr

    Personally, I’m tired of them making talking points concerning minors that also directly apply to adults. They said can lead to homelessness when the kid grows up and other things like lack of employment and harassment. Well, the adults are facing just that so why is it ignored and considered “just a part of the Registry” when it comes to adults? Why is there the usual “it’s not a punishment ” statement with a wink of the eye?

    I’ve been out now for 13 years, with no incidents, married, and have children of my own I take care of, but it still takes an act of God to get off the registry. I was 22 at age of conviction and am 43 now. Just how long do I have to prove I’m not a danger? Will I be 70 years old registering because of a conviction at 22 years old, nevermind I would have been out free for over 40 years without any misconduct!? Just like many laws of the past like Jim crow, the Government will eventually say they went overboard and constitutional rights were illegally denied. My biggest fear is it will be when I’m too old to truly apply myself as a law abiding second class citizen……..

    • CR

      @Gralphr, it’s good that they make these positive judgements regarding registration of those who were juveniles when they committed their offense. We want more of this. And we want these judgements to stick. Because, … see Janice’s article post. It’ll help make the same case later for all of us.

      The fact is, it’s easier for people to think more rationally about registration and to acknowledge its punitive nature when considering its effect on those who were 11 when they committed their offense. Its not so easy when it concerns an adult. But the fact is, most of the same arguments apply.

    • Notorious D.I.K. / Kennerly

      Gralphr, in most cases it is because they are seeking political cover. Arguing for the right of adults to be free from oppressive sex laws is not something they are yet willing to do because it would immediately invite ostracization and, in their minds, who knows what else? And who could blame them? We live in a fear-motivated call-out culture to an extent unknown for many decades.

  6. Harry

    This is a little drop of good against the rising sea of bad.

    • Anon

      Harry, I understand the sentiment, but there was a time when we dreaded election year when terrible things happen and breathed a little during non-election years when nothing happened. The kind of sickness that enrages the body public is still there, but is now set in a different direction. This rage has now hurt enough people that there is a strategic and sustained effort to end the nightmare. We have a ways to go, but this is an opportunity to pause and thank those who are pouring their total effort into this cause.

      • Harry

        When someone is 70 years old and been on the registry for over 30 years and are under much greater and new restrictions now than when I was probation it hard to get excited about pebble splashes.

  7. USA

    Murderers who get released are eventually released from Parole? Yet, we have people 25 years later released on Summary Probation with expunged misdemeanors still on the registry?

  8. Mike

    I got a question, if the federal government tells all the states if they dont enact a law or program they will lose 10% funding but if the states do enact a law or program the states get to keep that money, isn’t that the very definition of bribery? Webster’s dictionary: ” to influence the judgment or conduct of (someone) with or as if with offers of money or favor : to induce or influence by or as if by bribery ” Anyone have idea’s or comments, Thank you

    • CR

      The Federal government position is that Article 1 Section 8 clause 1 of the constitution gives it the power to withhold funds to the States in order to persuade them to adopt Federal mandates that are not otherwise required by the constitution. It’s called the “Taxing and Spending” clause.

      It says:

      “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; ”

      It’s the part about providing for the general welfare that the Federal government relies upon to hold federal funds hostage in order to persuade States to adopt these mandates.

      SCOTUS has gone along with the practice, saying essentially that providing for the general welfare means whatever Congress says it means, and it can structure its spending to achieve it.

    • AJ

      @Mike:
      Per usual, @CR explained it quite well. SCOTUS ruled on it back in 1987 in SD v. Dole (https://en.wikipedia.org/wiki/South_Dakota_v._Dole). In that case, Congress withheld 5% of Transportation funding if a State didn’t enact a drinking age of 21. For whatever reason, 10% seems to be the number used anymore. I guess anything above that is deemed coercive(?). SCOTUS has on occasion found Congress’ use of the ‘power of the purse’ to be excessive/coercive, but it’s few and far between.

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