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Commentary

ACSOL Board Member Ira Ellman Publishes Scholarly Work Claiming Registry Regime Is Motivated by Animus, Should Be Stricken

[ACSOL]

ACSOL Board Member Ira Ellman has published a scholarly work that claims the registry regime is motivated by animus and should be stricken.  This conclusion is based upon an analysis of four relevant U.S. Supreme Court decisions in which the Court determined what constitutes animus and struck down existing laws on that basis.

According to Ellman’s work, “(n)o similar regime has ever been imposed on any other group of law-abiding former felons who have fully served the sentence for the crime they committed years earlier”.  The work also concludes that the registry raises a “strong an inference of animus” and that inference of animus “does not survive the scrutiny of scientific studies which find the registry ineffective and often counterproductive”.

In addition to serving as an ACSOL board member, Ellman is the author of “Frightening and High,” a scholarly work published in 2017 which revealed that the U.S. Supreme Court relied in the past on unsubstantiated statements in a “Psychology Today” magazine article when it determined that the requirement to register does not constitute punishment and therefore new sex offender laws could be applied retroactively.   Ellman is also a Distinguished Affiliated Scholar at the Center for Study of Law and Society at the University of California, Berkeley.

Download a PDF of the paper

 

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I truly hope the right kind of people read this. Thank you for your work!

I’d donate funds for a case to the supreme court to hear this argument. But I think the counter argument is that it was created not with ill intent and but with the guise of public safety. Of course we all know it was created with ill intent and by politicians taking advantage of tragedy to secure their six digit a year job in a position of power.

Even if the intent was pure, we’re well past the point of sticking with it given the evidence.

Like, many people truly believed burning witches at a steak was for the greater good. Literally for public safety. Likewise when we had the Japanese concentration camps. That doesn’t mean we keep doing it once we have evidence to the contrary.

Once you have hard evidence (which we do in spades), the initial intent is irrelevant. At this point, harm is the only intent remaining since ignorance of reality can no longer be claimed.

@SR:
Let’s not forget Chastleton v. Sinclair (https://supreme.justia.com/cases/federal/us/264/543/), as well as later SCOTUS and lower-court decisions. From the Holding (i.e. Opinion), not just the dicta, of Chastleton: “A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change.” Clearly the “facts”, if you wish to call them that, from Smith v. Doe have changed, thus requiring de novo review. Though decided in 1924, Chastleton and its progeny are still good case-law, even though sparingly used.

I’m ready to donate funds as well. Glad to see others are as well.

Well if it’s counter productive that could only mean one thing. It was thought of by people who had deviant sexual interests, and were coming down hard lest anybody should ever suspect them. Just like with Dennis Hastert.

same with pages and congress and their tricks promised to move up for sexual favors within DC, Sorry Spoyses, you didn’t know? terrible…yes Jack good job ASU Alumn. Ira.
Folks, this just might makes waves and review their ignorant uneducated RULING for non factual info from a old OPINION of a writer NOT a Pyschoanalyst nor Pysch nor MD writing…How Frightening and the old Scalia and others OG believed and voted on without NO FACTUAL INFO for the numbers! Shame on the SCOTUS back then!

Looking forward to this being read among all colleagues there in the big white house.

I find this paper interesting: 1) “After reviewing these practices of other countries, as well as the social science evidence, the Council of the American Law Institute has proposed a revision to the Model Penal Code, to be reviewed by the membership in June of 2021, that would eliminate entirely all publicly accessible websites listing “sex offenders”, as well as any other forms of general public notification concerning them, and prohibits or limits other collateral consequence currently applied to them alone.” That is a follow up to the ALI article published here on ACSOL earlier this year through this paper.… Read more »

It is well established in law that both the feds and a state can prosecute for the same actions without it being double jeopardy. This is a result of constitutional federalism where the states and the federal government are separate sovereigns which can be “offended” independently. Those dual prosecutions are not uncommon. Since the military receives its jurisdiction due to it being part of the federal government, it would be double jeopardy for the military and federal civilian authorities to both prosecute. However, dual state and military prosecutions aren’t double jeopardy. The registry requirement from a UCMJ conviction attaches as… Read more »

Thanks @Ed C. I am well aware of these facts from my time in the military but appreciate it for the others here in the forum. I just beat the drum so others will hear it to realize the military legal system is sneaky about these things and no one is the wiser until trouble is brewing.

For those who are unaware of the “firepower” of ALI:

The ALI’s elite membership includes all the justices of the U.S. Supreme Court, the chief judges of the U.S. Court of Appeals, and the chief judges of the highest state courts, deans of almost all law schools, and a limited number of law professors and distinguished private practitioners. All law students study the ALI’s “Restatements” of the law of many subjects, such as torts (including product liability), contracts, and other subjects. It also frequently drafts model laws that become statutes with few questions asked.

Source: https://www.nationalreview.com/corner/little-known-powerful-american-law-institute.

Here’s the URL listing the members of the ALI’s current Council: https://www.ali.org/about-ali/governance/officers-council/list-council-members/

@AJ

Now if ALI only would address marked DLs/IDs like OK, FL, et al have and passports too…

Last edited 28 days ago by TS

@TS:
If the ALI’s proposal passes, it would certainly encompass marked DLs/IDs. Their position is all the info should be LE-only and not publicized. That would have to include DLs/IDs.

Then come on ALI, pass the proposal! We have enough splitting of hairs in the world today through various methods, there is no need for more.

Thanks @AJ

To add to what @AJ wrote:

Model Penal Code:
Sexual Assault and Related OffensesThis project is re-examining Article 213 of the Model Penal Code, which was ahead of its time when approved by ALI in 1962, but is now outdated and no longer a reliable guide for legislatures and courts.
https://www.ali.org/projects/show/sexual-assault-and-related-offenses/

Legislatures do read what this org puts out for the next generation of laws.

Can I make a sizeable donation if it helps Ira Ellman to try to take on the registry as a whole?

I’m in the Northeast, so it may not help me directly, but let’s see what can be done.

Let me know.

@Joel123:
I’m pretty sure “a sizable donation” is always appreciated. Heck, if nobody else will take it from you, give me a shout! 👍 😁 💰 💰

Last edited 28 days ago by AJ

I’m not a lawyer (I don’t even play one on TV), so please take my legal ruminations with the appropriate amount of salt. So in the 6th Circuit, at least some provisions of Michigan’s SORA constitute punishment in effect and thus can violate ex post facto. This is also the basis for the recent TN decision. A question I would like to ask is, if the registry is punishment that violates ex post facto, does it also constitute a bill of attainder? Those two are mentioned in the same paragraph of the constitution. I’ve read that bills of attainder are… Read more »

There was also a recent case where 1-2 people got off the registry as they were able to argue that being on the registry is a form of government restraint or being in custody.

It seems the pieces for taking the current system down are coming together.

I’m not too enthusiastic about donating to ex post facto litigation as it seems to be an open and shut case at this point. It also doesn’t seem to do anything for people that it doesn’t apply to.

We are indeed getting closer, Joe. There are not a lot of cases regarding bills of attainder. In a 1977 case involving Nixon, Justice Brennan concluded a bill of attainder must have three elements: 1) the law must specifically target individuals or groups (check); 2) it must inflict punishment; and 3) it must lack a provision for a judicial trial (check). The only variable in that list is whether a specific state’s registration laws inflict punishment. The Court went on to describe three avenues to determine whether a law inflicts punishment. That is the piece of any argument that must… Read more »

Very interesting and new viewpoint. I’d be ready to help fund legal efforts to a challenge like this.

Analysis of Bills of Attainder and Ex Post Facto laws are the same when it comes to judges and courts. The big difference is a BofA is an unconstitutional penalty imposed by the Legislative branch, whereas an EPF is one imposed by the Executive branch. However, in today’s bastardized system of government (“Administrative Branch”, anyone?) a BofA is hard to pull off because it would be enforced by the Executive Branch, making it an EPF violation (too). This helps explain why there’s a dearth of BofA case law. As to the rationally related argument, I go back to my favorite… Read more »

Excellent question!

The article written by Ira Ellman, who is a noted academic scholar, is a great asset to litigators who can cite it in lawsuits we prepare and file. By doing so, we educate the judges and legal staff who read them. As for taking on the registry as a whole, there is a significant danger in doing so because if one such case is lost, it will seriously harm all registrants and their families. As Justice Ruth Bader Ginsburg stated, permanent change comes about only through a series of incremental changes. If we don’t remove all of the bricks in… Read more »

Well, considering the Registry is akin to the great wall of China in regards to the brick analogy, we should start seeing cracks in about 500 yrs.

I see your Ruth Bader Ginsberg and raise you one Michael Jordan: “I missed every single shot that I did not take” or something to that effect.

Sooner or later someone will take this on. It would be nice if it were the most expert organization or personnel, but oh well.

Time to start rooting for @Mike R?

@Joe:

Point of Order: It was The Great One (read: Wayne Gretzky) who said, “you miss 100% of the shots you don’t take.

The Michael Jordan quote is: “I’ve missed more than 9000 shots in my career. I’ve lost almost 300 games. 26 times, I’ve been trusted to take the game winning shot and missed. I’ve failed over and over and over again in my life. And that is why I succeed.”

AJ – Good to have you back!

I certainly agree with Janice that a premature case or an otherwise unfortunate decision could seriously hamper our efforts. The 2003 Alaska decision has repeatedly been presented as justifying contentions that no registry provisions constitute punishment. Whereas the Supreme Court only said that Alaska’s implementation at the time did not constitute punishment. Even incorrect dicta, e.g “frightening and high,” have long-lasting negative effects. Fortunately we are beginning to see decisions stipulating that some registry provisions are punishment. Implementing punishment is the central constitutional issue whether in the context of ex post facto or a bill of attainder. I’m not confident… Read more »

This paper backs up what I’ve been saying for years: We need to go after the registry as a whole, not chipping away at it. Chipping away at it helps only a few, not the whole, leaving far too many lives still affected negatively by this unconstitutional registry. Take it on as a whole, that’s the only relief that many of us can even hope for.

I’m sure this will go as far to helping eliminate the registry as all the other papers written by educated, intelligent scholars that base their findings on facts and not public hysteria. In other words, it will go nowhere.

Wow Eric,
I hope you’re just having a bad day,
Anybody that will do the work, put in the time, and share their findings, has my upmost respect !

I have been fighting this with lawyers starting back in 1995 when the list was started, first financially, then loosing my employment, I started doing the research, and I can say with complete confidence,,,,, researchers And science is the only way to truth,,,

You might want to ask yourself,
What has Eric done to improve a registered persons life ?

To play devil’s advocate is what can Eric do literally? In my situation if I start doing public things, I risk my wife being fired from her teaching position she’s had for 10 years. We are doing well, but we don’t have 50k to fund a project, we could donate a little but not enough to make a difference, some can’t do anything. There’s a proverb in the bible. Those who have nothing, what they do have, more will be taken from them. This is the risk. If we do something it may put a target on our head. If… Read more »

Ok, I get that, 1st question: what can everyone do, not just Eric, look yourself up,,set the map radius to 5 miles and hand out this website on a piece of paper to those in your area,,, 2nd: it doesn’t take 50k or any k to help fund a project. I’ve never seen a beaver dam done at once, one stick at a time one stone at a time. But the more HELP he has the faster it gets done…. none of this has to be done in public. 3rd: a proverb of the Bible ? funny coming from the… Read more »

Well Eric, Dr., and Anklebiter although I’m not on this list I agree with all 3 of you. I fight for my grandson, I just contacted the ACLU about his issue the other day for him. I’m hoping for a favorable reply but my grandson has only gotten the typical decline from the organization for years concerning his issue (which at the time he was not clear on). I told him I would try this time because I’m determined to see him off this list and able to use his degrees to help people caught on this registry like himself… Read more »

It sounds like you have done your research, now you have to wait like the rest of us for judge Cleland, meanwhile the onion of the registry is being peeled,,,

you nailed it anklebiter, so did Prof Ellman.

E/Med for me, starting back in 85′ Doc. I still renew docs for a living and other HCP’s. losing employment was my first when the CHP came to mom’s house and demand my licensure for Cali. Doing the research was limited during incarceration but post alot more can be revealed. Yes Eric needs some soul searching and applaud this ret/ Prof for all his work that he and his wife commit to ACSOL and the States! I ask what I have done and try, try to do more what limitations I have with finances and employment alsomt nil. Good thought… Read more »

Well, besides my 12 yr military career in active zones while incurring injuries ,my 14 yr career in the healthcare field as a rehab therapist, and my monetary contributions to charitable groups, not that much. I think I did enough for this miserable species. What have you done………………

I was talking about the topic,,,,
someone who will take the time to help and in courage others,,,,,,,,,,
Not dismiss someone’s work…
And you think you’ve done enough? 👌 ok

More than……. time to take care of and be concerned with myself for a change.

In this case I agree with Eric, I do think Dr. is right that we as family and the ones that are enduring this registration issue should have empathy for others. Let’s be real and honest about the whole situation though, when you empathize with others then you stand to lessen the effects plaguing you or minimize their impact to you or your family concerning this registry. Honestly many do not empathize with this matter if they aren’t directly effected by it or a family member of someone they truly care about that is. In saying that, I don’t think… Read more »

“…the claim that it is justified by the clearly valid purpose of reducing the incidence of sexual offending does not survive the scrutiny of scientific studies which find the registry ineffective…”. Moreover, there is absolutely nothing about the Registry itself that prevents any actual sex offenses. The Registry does not “lock” a PFR’s zipper in the event the PFR were going to expose himself. The Registry does not stop the PFR from talking to a teenager, nor stop him/her from actually soliciting the minor. The Registry does not block the PFR’s computer from accessing a porn website, nor does it… Read more »

What the registry does is give impetus for illegal actions against PFRs and their families because the very fine print tells people what they can’t do (i.e. use the info nefariously) but the registry can’t be held accountable for the “public data” already available or how people use it. However, if it’s merely civil in intent, what sort of civil case or otherwise could be filed against a legislature (i.e. the state) for the actions of a few? If the safety of the masses is more important than those on the registry (state constitution safety statement) then is it an… Read more »

I wrote this to some “people” before and got nothing. Is this what you’re thinking? “State Created Danger” In trying to think about what reasons and arguments there would be for the removal of the public registry, the first legitimate reason in my mind given the facts and knowledge that we have now would be the danger that it creates for the person listed on the registry, and his or hers cohabitants ie; family, friends, roommates, etc. and a danger to the property of the aforementioned. There is now ample evidence of murder, violence, vandalism, etc. directly related to the… Read more »

“State Created Danger” continued: I do not know whether there needs to be an affirmative act committed against plaintiffs individually. In one case that i can’t remember the plaintiffs brought a case just based on danger without any affirmative acts committed against them. In our case, there is a real history of affirmative acts committed against our group, a group that is very different than the general public at large.

@Bobby

Yes, I would say what you have written here is what I was looking for. Very well written and captures what I was thinking about. Since there is harm that has been committed against PFRs, the damaging acts are real and thus give credence to a “state created danger”.

@Bobby, et al, WRT to the “state created danger”, is there an analogous situation(s) that can be used in comparison to the registry and it’s impacts as detailed here, e.g a “tool” used in the same fashion to create punishment at the hands of others where the initial intent is civil and not punitive? If so, then please share. That could, IMO, go a long way in the argument of the actual impacts in addition to what has already been stated in court cases where the registry has been found to be punishment, e.g. Judge Matsch in US District Court… Read more »

@David⚜️:
Everything you wrote is correct; however, you’re looking at it from the wrong angle. Nowhere does the State claim the registry will stop those monsters on it from doing anything. The avowed purpose of the registry is to allow the general public to be sufficiently informed to steer clear of the monsters. It’s not a “monster prevention device”, it’s a “sheeple awareness device.” That fits right in with their “incurable” narrative and also keeps the sheeple shaking in their shoes.

With the registry byproduct keeping sheeple focused on others that don’t need the focus and allowing those who do need the focus, e.g. a recent school principal, being able to offend without issue until either caught or otherwise.

Why is there no effort to watch those who are statistically greater to offend, according to the data, and not on the registry than there is to watch those who are on the registry and don’t offend again? Don’t stats mean anything?! Ugh…

TS ~ What kind of registration card are you talking about? I thought the wallet size cards that we were supposed to carry (still not sure if this was ever required) is no longer anything anyone has to carry?

@someone Not sure where you are coming from WRT wallet cards in this particular subthread of the overall thread; however, the only cards I am referring to (in a reply elsewhere in this thread) are the DLs/IDs certain states, e.g. OK, FL, etc, have marks for PFRs which need to be done away with since they are forms of gov’t compelled speech even if coded and not in standard English or on the front/back. My specific reply here refers to the stats of those who are more likely to offend, e.g. a principal and a LEO are recent examples in… Read more »

The author makes essentially the same interpretation of the Whetterling Act as Justice Steve in his decent in Alaska v Bartello filed in 97 (Smith v Doe 2003)

Tim – couldn’t find Alaska v Bartello?? Is this a SCOTUS case? Didn’t pop up in any search

I just read footnote 1 in the article which is a brief synopsis of Professor Ellman’s bonafides. Though that single sentence is impressive, it failed to mention that he was also a Supreme Court law clerk and a legislative aide to Senator Adlai Stevenson III. I’ve tucked away all that biographical information to use against those who will invariably try to divert any discussion by diminishing the author. “Who is this guy anyway? Probably pandering to those who fund his research.” “Welllllllllll….” I have to admit I do have in mind a particular counselor who employs those sorts of red… Read more »

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