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TX: Texas Sex Offender Registry Upheld by Fifth Circuit

[bloomberglaw.com – 12/17/19]

The Texas Sex Offender Registration Program, which requires sex offenders to make in person reports and restricts housing options, doesn’t violate the U.S. Constitution by depriving registrants of due process, the Fifth Circuit ruled.

An individual convicted of a sex crime in a trial or plea agreement has received the minimum protections required by due process, the U.S. Court of Appeals for the Fifth Circuit said Dec. 16.

Secondary harms to registrants, such as finding housing, aren’t direct infringements by the state, the court said.

The court also said the program doesn’t violate the Constitution, because it advances the purpose…

Read the full article [fee required]

Related (updated)

Commentary from Florida Action Committee

Decision

Join the discussion

  1. Anonymous

    They must have discounted the facts in order to advance their agenda.

    • Tim in WI

      Maybe, but let us read the court’s published ruling before we condemn their opinions to malfeasance.
      Texas brought to the world Lawrence V Texas539 US 558(2003). The registry can be seen as a direct result and reaction of changing constitutional disposition toward home-sex by the people which evangelical and other alt right conservative detest as unnatural.
      IML& Project Angel Watch is currently headquartered where?

      Ultimately what counts as ” deviant” is tied to perceptions which bring law to the books.

  2. Bill

    Time to appeal it to a higher court!

  3. JohnDoeUtah

    Worst part of the decision, “…even if the Does are correct that sex-offender registries have questionable efficacy, Chapter 62 still advances the nonpunitive public purpose of defending public safety. See Smith, 528 U.S. at 103. “A statute is not deemed punitive simply because it lacks a close or perfect fit with the nonpunitive aims it seeks to advance.””

    This Court made a point to ignore Snyder, in fact they said who cares if the law has no rational relation, it doesn’t have to. But, I also believe that flies in the face of Smith, as they put a heavy weight on the rational relation factor of the test. “The Act’s rational connection to a nonpunitive purpose is a “[m]ost significant” factor in our determination that the statute’s effects are not punitive,” Smith.

    What we know today, that SCOTUS did not know in 2003, is that there are mountains of evidence based on factual recidivism data of the states, that sex offenders are not a high-risk to reoffend. Furthermore, we have other empirical studies which show that the registries actually increase the risk of reoffence. It the shadow of what we know today, based on factual impartial data, one cannot conclude that the registries have a rational relation to a non-punitive purpose (key word being rational: which requires logical thinking and being reasonable).

    • Charles

      To: JohndoeUtah,
      From my own research on the issue of recidivism and the general public’s attitude towards registraints I found that even if the recidivism rate was “.000001” percent, there would still be an outcry for more and more restrictions. Therefore I concluded that something else is afoot here, something evil, something miniacal going on with all this. And a very good indicator is the fact that many federal courts (CO, MI, PA e.g.,) have come right out and said these laws violate the constitional ban on Ex Post Facto and Due Process, both Substantive and Procedural. Yet courts like the 5th circuit are hell bent on keeping these laws in place—ask yourself why? And another point, let me call everyone’s attention to “Smith v Doe 538 U.S. @ 101-102”. Here the court stated “….on its face the AK statute does not require “In Person Reporting” and registraints are free to live and work and travel without restrictions…” Now, right there, will someone, anyone explain to me exactly what that statement means? To me, my logic and reasoning tells me that if the AK statute did require in person reporting and did have job housing and travel restrictions then the statute would violate the constitional ban on Ex Post Facto and Due Process. Otherwise, with that statement, the court was just blowing smoke up our ying yang!!! Got it? So please, somebody offer insight on this. Thank you…

  4. TS

    It’s sad that the court ruled this way in this case after reading the decision published. Even more sad that the attorney did it without really thinking things through from what I’ve read. We don’t need a damaging precedent out there to be used against our efforts. I would make a comment about this is Texas but it really is the 5th circuit being on the conservative Gulf coast.

    @AJ, et al – thoughts here?

    • AJ

      @TS:
      My thoughts are it was a total waste-of-time lawsuit. Nothing new was presented to get past Smith or CT DPS, nor past previous 5th precedent. To be honest, I’m wondering why the 5th didn’t just issue a per curiam and be done with it. The suit went over tired and tried ground that is fruitless without further presentable burdens (such as in MI). I personally don’t see it as any sort of precedent-setting loss due to its being a rehash of previously held court opinions.

      I think it would have been much wiser to try to take the angle of there being no Due Process for removal. Then one could perhaps toss in some arguments about the process behind and validity of the risk tiers. (In truth, calling them “risk tiers” is a misnomer, since no risk analysis was done; it’s purely offense-based.)

      What leaped out at me in the Decision was this:
      *****
      Smith suggests that sex-offender registry statutes are generally not punitive.
      *****
      Aside from the wiggle-room inducing usage of “suggests”, note the 5th only said sex-offender REGISTRY statutes are generally not punitive. So what of sex-offender statutes besides and beyond the registry ones? What about presence and residency? What about occupational? These were left unsaid and it would interesting, were one so inclined, to dig through the other 5th case law to see how or if they’ve handled that batch of RC laws.

      All in all, I see the case as nothing but a huge waste of time and money. Were I the clients, I’d be pretty ticked off at the job this whiz-bang attorney claimed to be doing.

      • TS

        @AJ

        Thank you for your thoughts on this case. It may not have made things worse by topic, I think it didn’t help because could be a case against our efforts using the scales of justice analogy, e.g. it went into the opposite side we need more in by count and court level, 6th CCoA cancels 5th CCoA, SCOTUS is there against us, PASC sees it differently. That’s a mathematical view and maybe not the best…

        • Tim in WI

          Constitutional challenges of due process claims must focus on liberty protection in state statute in trial and Appeals sections of codified law. The deprivation lies in the missing fair notice of potential life commitments in the original sex trial. A man can not appeal directly a ” life term” as a result of the conviction when no knowledge exists. only if he knows it is a potential outcome can he\she appeal it. DPS expressed the lack of foundation clearly in the demand for ” redeprivation hearing” not found in the constitution. A ludicrous claim to begin with. Stupid criminals make stupid “rights claims”. Why those similarly situated did not complain about ” being present at judgement ” is beyond me. One may not reasonably expect a gov not to have a database of had guys or girls but one may challenge the plain indenture to the database property maintenance a punitive.

  5. The Vampire

    To place a person on a registered list is just like placing a person in a concentration camp! Ask the Japanese people who lived here when the war was going on. Ask the indians when there land was taken over. The courts ruled it was ok for to put the Japanese people in lock down and the courts ruled it was ok to take this land from the rightful owners The Indians. Money talks to court judges who are voted in and Don’t follow the law of our constitution or our bill of rights. The oh mighty green back AKA money! Will make a voted in judge turn a blind eye just to stay in power even if they know it is wrong.. But if they side with a sex offender they doomed and will be voted out. So the Fifth is looking at the money/ votes! And Not looking at the facts!! That 99% of people our harmless to society!!! Yes people make mistakes that is how YOU Learn. And 99% of the so called sex people will NOT make that mistake again!!!

  6. TR

    Speak a little truth and people will lose their minds!

  7. Shawn

    Sadly the courts continue to be oblivious to the fact that a coordinated effort is transforming our justice system from reactive to proactive through social engineering. False statistics,moral panic and virtue signaling were all not only contemplated but anticipated. This was the true intent in 1996 and long before. They wanted registries long before 1996 but could never get it passed. Now watch registries expand to include other categories until our entire justice system is engulfed by the administrative state. If we as a nation are blind to recognize this than we deserve to fall. We are no better than Stalins Russia or Hitlers Germany at that point.

    • Tim in WI

      Yes, many technologies are ” need to know basis”. Example : Facebook, Date.com etc., in screening sexoffenders use the registered email addresses to exclude individuals thereby implicating peaceful assembly in the commons. The tax upon disposable phones by law requires a unique identifier # for each tax receipt- all electronically stored in multiple places. Metadata collection ensues upon the unnecessary on a mass scale. “IT’S ONLY METADATA” nevermind the access or accessibility rendered. The inherent nature beware.

  8. Chris f

    It’s important to follow the link above to the article by the Florida Action Committee.

    This was a useless case by a lawyer scamming registrants out of money.

  9. Anthony

    We got a Sid number just like the Jews got a number.

  10. Bill

    Here’s an article back in 2018 that some of you may have already read but it’s a good one. Here are a few excerpts:

    “SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.”

    “The right to due process can be found in the Fifth and 14th Amendments of our Constitution. Due process is commonly understood to include the presumption of innocence, the right to a fair trial and the right to counsel – ideas that ensure a defendant is treated as fairly as possible in our adversarial criminal justice system. It can be “gauged by its aim to safeguard both private and public rights against unfairness.”

    “Despite what some courts have found, the current requirements of SORNA violate due process, specifically the tenet of presumption of innocence, or the idea that a person is innocent until proven guilty. Each state differs in how it implements SORNA, so an individual’s length of registration varies by state. For example, all sex offenders in California and South Carolina register for life, regardless of the crimes committed. By demanding post-detention reporting for up to a lifetime, the court is presuming that an individual has the propensity to commit a certain type of crime in the future and therefore must be scrupulously supervised.”

    “Courts have addressed this concern when the individual required to report is a minor. The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.”

    There’s more from this article and says everything that’s true and final about the Registry. All it needed was the metaphorical mic drop.

    https://thehill.com/opinion/criminal-justice/376668-the-sex-offender-registry-vengeful-unconstitutional-and-due-for-full?amp

    • R M

      Courts have been and will continue to be bought.

    • JohnDoeUtah

      I argued this point for many years after the passage of SORNA, but there were those in community that have till this day argued that SORNA does not apply to state offenders who do not travel in interstate commerce.

      I believe that you cannot be charged with failure to register as a state offender, for not registering, until you travel in interstate commerce. The law does state that it must be knowingly, so there is a notice requirement.

      I think what they are saying here, is that while he may not be charged with failing to registered because his state has taken him off their registry, and the feds have no registration office, they feds are under no obligation to remove his information from the federal registry.

      This gives me concern because my offenses were military. My state took me off after 10-years, but federal SORNA would likely be Tier II (25-years) although my crime is not specifically listed in the code but is comparable to a federal offense listed on SMART Guidelines. SORNA applies directly to me by virtue of a military offense, but my state has no mechanism for complying with SORNA.

  11. Mike jones

    Does this have any to do with Hearn v. Castilleja?

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