Janice’s Journal: A Model Court Decision

A court in Pennsylvania ruled recently in favor of one registrant and that is a good thing.  The even better thing the court did was to provide the registrant community with a model that can be followed in other state courts.

To be sure, this week’s decision issued by the Court of Common Pleas in Chester County, Pennsylvania, is binding precedent only upon courts in that state.  It is, however, a precedent that can and should be followed by state courts throughout the land.  And it provides a model that lawyers can use in future cases challenging registry laws throughout the nation.

What is so important about this case?  There are at least three important factors.

First, the Court did not accept the false assumption upon which the state’s registration laws were based.  That false assumption is that ALL registrants have a high risk of reoffending sexually.  Instead, the court noted that individuals convicted of a sex offense have a wide range of personal characteristics and circumstances.  Some of those individuals may pose a high risk of reoffending sexually, but most do not. 

The Court also noted that due to this false assumption, everyone convicted of a sex offense carries the burden of a “scarlet letter.”  And it is this burden that compounds isolation and ostracism experienced by registrants as well as diminishes registrants’ chances of successfully reintegrating into society.

The Court reached its conclusion that the state’s registration laws were based upon a false assumption after they did what many courts have refused to do – pay attention to empirical evidence.  This should not be BIG news, but it is.  The court sifted through multiple opinions expressed by experts presented by both the state government and the registrant.  By doing so, the court found TRUTH, that is, between 80 percent to 95 percent of all registrants will not reoffend.

Second, the court looked beyond the state’s hollow assertions that the registry does not punish individuals convicted of a sex offense.  We have heard these assertions before, all the way up to the U.S. Supreme Court.  The state government based its assertions, in large part, upon the fact that registrants had an opportunity to present evidence at trial.

The Court burst the state’s bubble, however, when it correctly pointed out that although individuals required to register were provided an opportunity to go to trial before they were convicted, the same individuals lacked an opportunity to prove for 25 years or longer that they did not pose a current danger to society.  In the Court’s own words, this constituted a process that was both “inadequate and illusory.”

The Court also scolded the state government by reminding them that individuals are presumed innocent until they are found guilty by proof beyond a reasonable doubt.  The Court went on to note that in many trials involving a sex offense, “facts can be murky and most often there are no independent witnesses.”  The Court went to note that trials do not give criminal defendants an effective opportunity to contest future dangerousness.  Those are sweet words from a court and more importantly, the truth of the matter.

After addressing this important issue, the court went to decide that the registry laws in the state of Pennsylvania were not a civil regulatory scheme, but instead constituted punishment.  An important part of that decision was finding that registrants are on “de facto” probation for the entirety of their lives.  For example, they must report address changes, switching schools, purchase of a car, and a new job.  The Court also noted that this information is shared with the public via the Internet.  In summary, the Court determined that these requirements are oppressive and impose affirmative disabilities and restraints upon the state’s registrants.  The Court therefore declared that the state’s registration laws promote the traditional aims of punishment – retribution and deterrence.

Third, this Court sidestepped the binding precedent of Smith v. Doe, decided by the U.S. Supreme Court, that has caused great harm to registrants and their families.  They did so in a clever maneuver by basing their decision not upon the federal constitution, but instead upon the state constitution.  For in the constitution of the state of Pennsylvania there is a recognized right of reputation.  As the Court noted, the existence of government records containing information that might subject a party to negative stigmatization is a threat to that party’s reputation. 

This court decision gives me hope.  I hope it gives you hope, too.  Let’s use this hope to work together in challenging registry laws in every state.  Please know that we must do this important work in increments.  After all, this Pennsylvania court decision was the result of more than five years of litigation.      

The first step toward that goal is to identify all states that have a right of reputation in their state constitutions.  For those will be the easiest states in which to challenge registration laws.  Our next step may be to lobby states to add a right of reputation to their state constitutions.  And when we succeed in doing so, we will be able to challenge registry laws in all 50 states. 

If you agree with the need to eliminate all state registry laws, please consider making a donation to ACSOL today so that we can start this important work.  Online donations can be made on the home page of the ACSOL website at www.all4consolaws.org.  Donations can be mailed to ACSOL at its new address — 2110 K Street, Sacramento, CA 95816. 

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Here is a CA Right to Privacy Review pdf: link.
(actual address: https://digital.sandiego.edu/cgi/viewcontent.cgi?article=3432&context=sdlr )

Here’s a quote on pdf page 124:

The California and federal constitutional rights to privacy are distinct. Like its federal counterpart, the state right to privacy extends to both informational and autonomy privacy.20 Although the California right is codified in the state constitution, the federal right is only implied: “The federal constitutional right of privacy . . . enjoys no such explicit constitutional status.”21 Thus, the state right should be broader than its federal counterpart.22 

The footnote 20 points to a couple of cases, including a CA case Valley Bank v Superior Court.

What is autonomy privacy? From google search:

Autonomy privacy is an individual’s ability to conduct activities without concern of or actual observation (i.e., surveillance).

Being a part of the registry is implied observation, especially with compliance checks after one is no longer under custody. Any background check where you belong to the registry is observing an individual’s act of applying for housing, loan, job, etc… There’s also divulging travel plans or going onto a school premise/zone such as a registrant parent wanting to pick up their child or children.

If we read the CA Constitution for Right to Privacy is states: “pursuing and obtaining … privacy.” The law explicitly says a CA citizen has a pathway to regaining privacy, informational and autonomous.

SB-384 and previous CA registry scheme have lifetime terms of losing one’s privacy without a pathway to regain that privacy. That is cruel and unusual punishment to lose an inalienable right for life, especially when no longer under custody. Your reputation as a monster is a lifetime label and surveillance.

Connecting this to the PA decision, it’s about defaming one’s character for a blanket set term. The moment you are put on the registry in CA, then you are given set terms of 10 years, 20 years, or lifetime term loss of privacy. There exists no individualization to contest these terms. Even with PC 1203.4, which is an individualize assessment of recidivism by the courts, an individual’s case and accusation/info are supposed to be dismissed and regain their privacy, informational and autonomous, but that is suspended to a 10-year term at a minimum. There is no scientific reasoning for denying to regain informational and autonomous privacy.

PA’s decision identifies the registry does not work and the recidivism rates are very low. Also, the registry defames an individuals character by disseminating that information, which is PA’s right to reputation. That is a loss of privacy, which is the only way any registry works. The moment one is out of custody should be the moment one regains their right to privacy once again.

The CA registry is a “loss of privacy scheme”. This is the framing ACSOL needs to do in a CA court, that the registry is a loss of privacy scheme that defames us as monsters, liabilities to be surveilled for an arbitrary term length. The compelling interest of the public is negated by PA decision that the registry does not change the recidivism rates and that the recidivism rates are very low.

What I liked about the PA decision was how the court brings up term lengths of 10 years, 20 years. From a court’s perspective, it’s just a number, but from an individual’s perspective, that’s robbing a lot of life. The judge in the PA case sees us as individuals who are ostracized for decades or longer or forever.

1203.4 and Kelly v Municipal decision, 1958.

If any such person changes his residence address he must within 10 days report his new address to the law enforcement agency with which he last registered. Such agency must within three days forward the information to the state bureau which in turn must forward appropriate registration data to the local law enforcement agency having jurisdiction of the new place of residence. Failure to observe any of these requirements subjects the convicted person to the penalties of a misdemeanor. Also, conviction of a violation of section 290 renders a person liable to inquiry as to whether he is a sexual psychopath. (Welf. & Inst. Code, § 5501.)

[1] The duty to reregister upon changing one’s place of address is a continuing duty, a burden which the convicted person carries with him until his dying day. Being thus severely limited in his freedom of movement and continuously under police surveillance, all stemming from the conviction which has been set aside, the conclusion seems irresistible that this registration requirement is one of the “penalties and disabilities resulting from the offense or crime of which he has been convicted,” from which, as a faithful and successful probationer, he is thereafter “released” by the mandate of section 1203.4. fn. *

Kelly decision was in 1958, 14 years before CA amended “right to privacy” into the Constitution. Kelly denoted severely limited freedom of movement and continuously under police surveillance as a part of PC 290 registration. Losing and obtaining privacy became a protected right when it was amended into the CA Constitution in 1972.

Kelly identifies that a 290 conviction renders a person liable to inquiry as to whether he is a sexual psychopath. That is proof that being on the registry automatically labels one a sexual psychopath, and this was before the internet and information sharing!

When Kelly was passed in 1958, 290 had criminal elements. As decades passed, it transitioned to “public information being disseminated”, or a “loss of privacy scheme”. Problem is registrants never were shared the benefit of regaining “the loss of privacy” when the registry evolved from criminal elements to “loss of privacy scheme”.

The registry has drastically changed between 1958 to now, including the “right to privacy” amendment in 1972, which grants information and autonomous privacy.

Another interesting Idea? Hey my idea ARE interesting, they are just not always useful!

Thinking about another “inalienable right” I am potentially denied. My basic human right not to be murdered with government assistance? They can whine all they want. But they help facilitate murder. Proven several times over. They claim that “protect” me by arresting and jailing the perpetrator. Then they change nothing about the system that facilitated the crime. Tolerating the tidkmog it happing again and again.

Their claims that I receive the same protection bas anyone else are false. Nobody else has their name, photo and address listed on a website (means to commit) along with conviction for a crime well known to all to elicit hated and various lesser acts of vigilantism (motive to commit). How is my government not tolerating a risk to my life, and the lives of any who live with me? How can they be sure that risk nis restricted to only my residence?

Nobody will ever see me in the street and attempt a drive-by? Risking the not only my life, but everyone near me? I will never be fire bombed, or that fire will not spread? The man in Wheatland, CA (Rory Banks) would not have used any of the pipe bombs he made to facilitate his (alleged) murder had he not broke into his victim’s home to shoot him? We are also sure that the victim’s Mother, who was in the home at the time of the murder, was in no danger of any kind? Even from a planted pipe bomb?

Am I such a risk to society that I must have my very life risked in such a fashion? I, personally, am such a risk the lives of others near me must also be jeopardized in such a way? How can the Government be so certain that I personally am such a risk? Is there no way I can ever prove that I am not, ever? How can they be so sure as to endanger me, and others, in this fashion?

Nothing new there. However…one wonders what our global neighbors think? All the other countries that have no public visibility to the registry because of vigilantism risk? One also wonders if this tolerated vigilantism risk could ever warrant… asylum? Would Canada, The UK, say Barbados (might be ending public notice after 1, unconfirmed act) ever consider what my country is allowing, and assisting (unintentionally, but knowingly) grounds for asylum? Would these countries agree that I am victim of a pogrom that could lead to my murder, and others murder?

Anyone ever ask them?

Weird weird weird idea. Don’t really like it…but….

From Constitution of CA

Article: 1
Section: 28
The rights of victims also include broader shared collective rights that are held in common with all of the People of the State of California and that are enforceable through the enactment of laws and through good-faith efforts and actions of California’s elected, appointed, and publicly employed officials. These rights encompass the expectation shared with all of the people of California that persons who commit felonious acts causing injury to innocent victims will be appropriately and thoroughly investigated, appropriately detained in custody, brought before the courts of California even if arrested outside the State, tried by the courts in a timely manner, sentenced, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance.

So the courts were supposed to sentence me to sufficient punishment that the pubic safety is protected and encouraged? That is the right of victims in CA?

That goal is of the “Highest importance”?

And yet, they say, I am still a danger. Is CA screwing the victims of the state by, insufficiently punishing me so that the public safety is not protected and encouraged?

Did the State fail to meet this obligation through punishment, that is not cruel or unusual?

Told ya it was a weird idea, and thatI don’t really like it.

Yet more from CA constitution.

Article:1 Sec:7 (b)
A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens. Privileges or immunities granted by the Legislature may be altered or revoked.

It’s like they were trying to be as vague as possible. Though more explicit than the US Constitution. Am I being denied an immunity that all other people convicted of crimes enjoy? As if I am a different class of citizen? Is that equal protection?

So I guess it depends on what they determine constituents an “immunity” and “class of citizens”? I guess. Is an immunity restricted to travel and trade? “Fundamental rights”? Worthlessly vague. Why even write something so nebulous it cannot be understood or understood to be anything?

All I know is we are being treated uniquely all over the place. Like every single time something says you have to treat everyone the same, we are not. We are the exception to every rule.

I’ve gone to International agreements

International Covenant on Civil and Political Rights, to which the US is a signatory. Potential issue

Part III
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

So lifetime website based on offense only with no possibility of release isn’t arbitrary?

Those news article that call us various libelous things. Unlawful attack on honor?

I am being protected from either exactly how? This is limited to State Actors only?

An idea, the most dangerous thing I do, other than talk too much. I just posted a reaction to the latest SORNA hearing postponement that included a long list of assumptions being made about PFRs and this system. In it, there is some talk about constant challenges to this whole idea. Got me thinking…an idea…an overly long post…oh I am a menace!!!

At any point, doesn’t the staggering volume of case law this system has produced mean anything? Fundamentally sound, constitutionality anchored laws that prevent crimes are not challenged constantly! Nobody is really petitioning the courts to do away with police, or facilities of incarceration. They might challenge what exactly the police do, or what precisely happens in prison, but very little case law being generated around the idea of eliminating these institutions. Fundamentally sound, constitutionality anchored and vital systems for promoting public safety are not repeatedly challenged in court. What petitions maybe be presented to the courts requesting this are bring denied without hearing. Not this system, the challenges get their day in court. Suggests there is something about this system, its methods and goals? Even when that State prevails, it is only a temporary victory before the next challenge forces yet another defense.

It would seem that the state has little to no concern that this system is not viewed in the same way police and prisons are by all. They willing defend this system against any and all attacks made. They refuse to back down on anything, and balk at the suggestion there may ever be a need to. Even after loosing several court cases on constitutional grounds, the State refuses to admit that there is anything about this system that is even questionable constitutionality. As if the only thing that matters is that it continues, no matter what.

So long as they can win most or at least some of the challenges, they will continue to maintain and expand this system. No particular need to be especially cautious in their efforts has ever be displayed. No need to avoid anything that may seem questionable even if it is unique to this system. No need to ever question the need to require new methods added to the system. No concern displayed about creating requirements that have never even been considered for any other post-release/post-conviction individuals ever. No concern displayed about the burdens these requirements place on the PFR, or their families. No concern evidenced that many of these ever expanding requirements are often imposed for life with no mechanism to avoid them or gain relief from them.

So long as they can convince a court that a particular requirement is constitutionality acceptable, they will do it, then add more later. No matter what the challenges, the system will continue to expand seemingly endlessly, with no need to ever question anything ever. Nor provide any proof of need for, or effectiveness of the system. Even when they loose a particular case, their behavior remains unchanged. The only thing a loss seems to cause is complaints from the state about how the courts got it wrong and how vulnerable society is without the requirement(s) that were just declared unconstitutional. Almost as if the constitutionality of the system is less important than the expansions they wish to make.

The State has behaved like this before. When has this state behavior ever been in defense of something valid? I will not insult those that have suffered before me by suggesting comparison to any other system similarly defended. I may have it bad, but I live in a paradise compared to what others have suffered, and I will not suggest, imply, infer, or intimate in any way that I do not. My life is a carefree dream in comparison to the Hell on Earth that others were locked into for life.

I just look to older ideas and see similarities in the State’s defense of this system. That is all, nothing more. I would hope others agree and not trivialize the inhumane destruction others have suffered by suggesting there is any other comparisons possible to older ideas.

I believe, we can compare the states dogmatic defense of this system, to their similarly stubborn defense of older systems without comparing the systems themselves.

Right? Wrong? Discuss?

Even more from CA state Constitution
Article: 1
Section: 26.  
The provisions of this Constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.

(Sec. 26 renumbered from Sec. 28 on June 8, 1976, by Prop. 14. Res.Ch. 5, 1976.)

Liking this… Mandatory and prohibitory. Means the State had no choice but to abide by this?

can you please provide the case number