ACSOL President Catherine Carpenter, who is also an endowed law professor at Southwestern School of Law in Los Angeles, has identified and analyzed a method that can be used to win registrants’ cases in court. That method, known as the irrebuttable presumption doctrine, shifts the burden of proof to governments when they make allegations such as that all registrants pose a current danger to society and are very likely to re-offend.
“Professor Carpenter has provided an extremely valuable tool to the registrant community in the research she has conducted that has now been published in a volume of the Notre Dame Journal of Legislation,” stated ACSOL Executive Director Janice Bellucci. “When the irrebuttable presumption doctrine is used, governments must prove the allegations they have made through the use of empirical evidence and when they can’t prove their allegations, registrants win.”
There is a need to use the irrebuttable presumption because of society’s moral panic that has resulted in the passage of laws at every government level, according to the law review article. These laws were based upon myths, including the myth of “stranger danger.” The fact is that very few people who commit a sex offense are strangers. Instead, they are family members, teachers, coaches and clergy.
The law review article addresses the history of the irrebuttable presumption doctrine, including the use of that doctrine in bail cases affecting undocumented immigrants. The law review article urges judicial intervention in the form of the irrebuttable presumption doctrine in order to “reject classification schemes built on false assumptions that masquerade as universal truths.”
The irrebuttable presumption doctrine was used in a recent court victory for registrants in the state of Pennsylvania, Commonwealth v. Torsilieri (2022). In that case, the court decided that the registration laws in Pennsylvania were “unconstitutional as a legislative scheme in both its use of a constitutionally infirm irrebuttable presumption and the punitive effects of its registration and notification provisions.”
Catherine Carpenter Panicked Legislation March-2023.pdf
This is exciting news! 👏🏻👏🏻👏🏻👍🏻
The big question is: when can we get some lawsuits, etc., going employing this “irrebuttable presumption”?? 🤔🤷🏻♂️
Excellent! Is this something we should maybe be telling our lawyers whenever they go in to court for us for any reason, from active cases to petitioning to get off the registry and combating DA’s denying cases because “they can”?
I’m curious if this could also be applied to lifetime parole?
It is akin to getting a comprehensive individual assessment done by a reputable independent person that shows you are not a harm to society (as I have said all along). Make that part of the evidence package where the opposition will have a chance to fight it with any direct empirical evidence (which they won’t have on you outside of what they already have) to classify you. Make the gov’t prove their point(s) you are an alleged harm beyond a reasonable doubt. When they can’t classify you by proof, their only option is to object because they can. Checkmate, you should win as you employed the method above.
Wow!
We are extremely fortunate to have Professor Carpenter, Janice Bellucci, Chance Oberstein and many others, fighting for our constitutional rights! Much gratitude and thanks to all!
can this be used at the Supreme Court level
such as a challenge to smith vs doe ?
This irrebuttable presumption can be used to sue California for unconstitutionally increasing the penalty of registration without scientific substance, but fear mongering.
California started the state sex registry in 1947. There was only one term once on the state registry, a lifetime term.
In 1958, Kelly vs Municipal gave a pathway for registrants to get off the registry via 1203.4. PC 1203.4 was designated for all low level criminals or first time criminals so as to not disrupt their lives and help them get back into society, provided they successfully complete probation. The key designation for 1203.4 is that it applies to all low level crime or first time offenders. In Kelly, the court identified that 290 (registration) is a special that differs from 1203.4 (a diversion program), a general law. The result was 290 special law cannot be an exception to 1203.4 general law.
Kelly set precedent that permits deregistration once earning 1203.4 b/c one of the three benefits in 1203.4 allowed it, “the defendant shall thereafter be released from all penalties and disabilities resulting from the offense of which they have been convicted.”
In 1972, CA passed the “Right to Privacy” law by amending it into its state constitution: the right to pursue and obtain privacy. Before Right to Privacy was enacted, a right to reputation was its progenitor with Melvin v Reid, 1931.
In 2007, CA passed 290.5 and 290.007. PC 290.007 cites: “A person required to register pursuant to any provision of the Act shall register in accordance with the Act, regardless of whether the person’s conviction has been dismissed pursuant to Section 1203.4, unless the person obtains a certificate of rehabilitation and is entitled to relief from registration pursuant to Section 290.5, or is exonerated pursuant to subdivision (e) of Section 3007.05 of the conviction requiring registration and the person is not otherwise required to register.”
There is no scientific reasoning behind not only extending the length of registration, but also creating another test to pass. The first test was passing probation to earn a 1203.4. The second test was waiting another 10 years to petition to simply de-register via the Certificate of Rehabilitation.
These acts are evidences of creating a sub-class such that the registrant class cannot benefit from being identified by the courts as a low risk level as well as being rewarded for successfully completing probation. 1203.4 has two other benefits that should be awarded to a registrant recipient, which are: 1) the case changes plea to “not guilty” and 2) the accusation as well as information against the defendant is dismissed, implying it cannot be used publicly. A registrant has support of “right to privacy” laws to uphold those two benefits of 1203.4 to automatically de-register like it did before under Kelly, 1958. And since the registry in the 2000s cited it’s just a regulatory agency, then it cannot participate in any criminal agency programs. The registry is disseminating a non-conviction as a conviction as well as sharing all the details of that conviction that was changed by the courts to “not guilty”. This reveals the registry is behaving like a criminal agency is utilizing this conviction and accusation when it has no right to access that information once 1203.4 is rewarded since the registry is regulatory agency, not a criminal agency any longer.
In 2021, CA passed SB 384, another iteration of the registry scheme. There are three tiers for SB 384: tier 1 (10 years), tier 2 (20 years), and tier 3 (lifetime). There is no longer a need for the Certificate of Rehabilitation to get off the registry and there is no requirement for 1203.4 for the registry. This means the small group that qualifies for 1203.4 is blanketed into tier 1. The whole point of 1203.4 was identifying low level crimes and first time offenders to get back to society sooner, but it’s “disregarded” to mean nothing despite giving the registrant a low risk assessment.
There was no reason to extend the registration length nor create an even higher standard of proof by passing two tests to get off the registry as there was scientific reason to deny de-registration pursuant to 1203.4 with the passing of PC 290.007. This is where irrebuttable presumption should also be inserted for violating a CA registrant’s civil rights of…
CA Const. Article 1, Sec 1: “right to pursue and obtain privacy”
CA Const. Article 1, Sec 9: “law impairing the obligation of contracts may not be passed”
CA Const. 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.”
California has no right to continue fear mongering of a registrant whose sex conviction was change by the court to “not guilty” as well as have that accusation/information dismissed. The registry is disseminating false information whenever a registrant earns a 1203.4! The registry has prevented a 1203.4 registrant recipient from the pursuit of happiness for an unnecessary additional 7 or more years! SB 384 has rendered earning a 1203.4 a worthless diversionary program for the registrant class. Being on the registry weighs more than earning a 1203.4 to every entity that does a background check. Why? It makes absolutely no sense. Maybe the addition of “irrebuttable presumption” to a lawsuit against California for violation right to privacy via 1203.4 and the creation of a sub-class for 1203.4 registration recipients. Might as well include defamation in the suit too.
I’m not very smart but we do need help because government officials will continue to use registrants for political gain.
I need help I’m on registry for over 27 years I need help is there anyone out there can help me to get off to get my life back
Bravo Professor Carpenter and ACSOL!. I think we need to share this news among our connections in all states so it can become common knowledge that this tool is available! I will send to IL Voices and Mark Weinberg in IL. THANK YOU.
This is GREAT news! Thank you Catherine!
Is ASCOL aware that today Florida is introducing Legislation that will require all informaiton on the state drivers license / state ID’s to be printed in red? It’s bad enough that sex offenders have a statuate number on the license while the sexual preditors have the words “SEXUAL PREDITOR” in all caps and in bold print. Talk about double punishement causing everyone to walk around with a “Scarlet Letter”. One has to ask what’s next – will we be required to yell out Sex Offender/Preditor when we are walking around like those with Leprosy had to do 2,000 years ago.
Carpenter is on the right track with this defense. It is the exact same tact I use in my pro we FTR context. The advantage wrought from WI not having a standard waiver with my signature. The irrefutable guilt becomes fodder for FTR Jury. As worded by SCOTUS itself in Connecticut DPS… ” even per arguendo what relevant questions remain..”
Awesome and thanks to Catherine and Janice and Chance and the team for their dedication and persistence.
I have one question. After 20+ years on registry and satisfying all legal requirements in another state, I moved to NC and was again placed on registry when they re-evaluated my case. At this point I’m almost 70 years old and I’ve lost everything including my freedom to walk in town with my dog. Can irrebuttable presumption doctrine be used to reverse my resumption of registry and this daily harassment that has pushed me into isolation and violated my rights to pay for my crimes?
This is fantastic. I just worry that lazy and ill-informed attorneys won’t use this approach. I believe that registrants should start law suits based on the false presumption that certain classes of registrants pose a danger to society. Based on what?
Will this do anything for lifetime tether? This is one of the worst double standers the state could ever empose on a sex offender. Thank You