TN: Tennessee argues to reinstate sex offender registry requirements at Sixth Circuit

Source: 12/7/23

CINCINNATI (CN) — Reporting requirements for sex offenders convicted before 1995, which can include in-person reporting, administrative fees and movement restrictions, do not violate the ex post facto clause of the U.S. Constitution, the Volunteer State argued Thursday at a federal appeals court.

The state sought to overturn the ruling of a federal judge who found the exhaustive regulations punitive in nature when applied to individuals convicted before the registration system was established.

A class of convicted sex offenders filed suit in 2021 and claimed the onerous reporting requirements and restrictions on where they could travel within the state were excessively harsh and overly broad.

U.S. District Judge Aleta Trauger, a Clinton appointee, agreed and granted the class’s motion for summary judgment in March 2023.

“At most,” she said in her opinion, “the defendants point to evidence establishing, unremarkably, that there is an ongoing risk that someone in Tennessee will commit sex crimes, which, the defendants argue, justifies restraining the plaintiffs and others with similar convictions since those individuals might go on to be the perpetrators. (Emphasis in original.)

“But that thin argument could just as readily support policies that would obviously constitute ex post facto punishments, such as retroactive increases in prison sentences. … [T]he act simply imposes its restrictions automatically on every person convicted by a jury of convicting a certain type of criminal offense — in other words, like a punishment.”

In its brief to the Sixth Circuit, the state argued Trauger erred when she lumped numerous pieces of legislation into a single “act” and analyzed whether the laws as a whole violated the ex post facto clause.

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I’ve said before, and will undoubtedly say a hundred times more:

Challenge the state to find one single case apart from registry violations where the registry prevented any sex crime from occurring or contributed something to the investigation of one that couldn’t be found anywhere else. Surely, after 30 years, that wouldn’t be a very tall order. But they won’t. They can’t. The only place where the registry “works” as (supposedly) intended is Law and Order: SVU.

Even among the few-and-far-between recidivist registrants, ask the state what good the registry did there? In all such cases I’ve read about, the registry status of the accused was never known until after identification or arrest.

Nor was there ever a contributing registry violation reported along with them. Has anyone ever read anything along the lines of “Recidivist X is accused of committing another act of molestation which officials believe would have been prevented had he reported that he sold his car a week prior.” Admittedly, it sounds stupid when said like that. But damned if I can find a way to say it so it doesn’t sound stupid.

Do prosecutors really need the registry to know they’re prosecuting a repeat sex offender? No. They run criminal record checks on all defendants anyway, and no state excludes sex offenses from such records. Well, maybe Mississippi, going by AG Lynn Fitch’s opposition to the American Law Institute’s registry recommendations, claiming daycares and the like would never know if they’re hiring someone previously convicted for sex crime without the registry, indicating that for some reason, Mississippi excludes sex crimes from its own criminal records as well as those it submits to the National Crime Information Center (I may write AG Fitch this weekend to ask why).

“At most,” she said in her opinion, “the defendants point to evidence establishing, unremarkably, that there is an ongoing risk that someone in Tennessee will commit sex crimes, which, the defendants argue, justifies restraining the plaintiffs and others with similar convictions since those individuals might go on to be the perpetrators.

That is an argument from silence!!
I could say the same thing about a bank robber that they should be retroactively forever forbidden to go to a bank since those individuals might rob it.
A DUI offender should retroactively never be allowed to go into a liquor store for fear since those individuals might buy alcohol, get intoxicated, and commit vehicular homicide.
Anyone convicted of domestic violence retroactively should never be allowed to marry for fear since those individuals might beat and kill their spouse.
The list could go on and on for every type of offense under the law.

The State abbreviation for CN is not a US State. Cincinnati is a city in Ohio. 909 area code is California.

The article points to Tennessee with a CINCINNATI (CN) heading from “The House Chamber of the Tennessee State Capitol in Nashville. (Ichabod/Wikipedia via Courthouse News)”.


You’re welcome ACSOL for the correction.

Tennessee also claimed Governor Bill Lee and Bureau of Investigation Director David Rausch are improper defendants because they lack enforcement powers over the registration requirements.

Attorney Gabriel Krimm of the Tennessee Attorney General’s office devoted much of his time Thursday to this point and told the panel of judges that local law enforcement officials are the parties that could grant meaningful relief to the plaintiffs.

If I’m reading this correctly, the state is arguing that its your local police department that can choose to relive you of anything having to do with the registry??? I thought cops were just drones working off a check list with zero power in regards who had to follow what? How could the regular PD department “grant meaningful relief”?

As always, baffled by the idea that this is punishment when applied to some people, but not when applied to others. It either is, or it is not. Two mutually exclusive states cannot coexist. That’s what makes them mutually exclusive.

So, in this ruling, is the court saying that:
* When applied to people convicted after the establishment of the registry, the onerous restrictions and requirements are not punishment?
– By what magic is this blessed State achieved?

* The onerous restrictions and requirements are punishment, even when applied to people convicted after the establishment of the registry, but that is OK?
– How are the additions to the registry restrictions and requirements that were added after my conviction, and especially after my probation ended, not Ex Post Facto punishment?

Questions about that:
# Did I loose my right to be shielded from Ex Post Facto punishment as part of my conviction?
# If that is the case, what is the point of the Ex Post Facto restriction? If the state can simply eliminate this restriction as part of a sentence, the restriction is clearly meaningless.
# Can the State eliminate my protection from Ex Post Facto Punishment, as an Ex Post Facto punishment?
# If they can, what, if anything, is the limit to the punishment that can subject me to for my 2013 conviction? All punishments they wish to add are constitutional acceptable, provided…?

Questions about that:
# Did I loose my 8th amendment rights back in 2013 as well?
# Even if I did not, can the State now eliminate my 8th amendment porotections as a constitutionally acceptable Ex Post Facto Punishment?

# Seriously, is there ANY LIMIT on what the State can do, or did my 2013 conviction give the State Carte Blanche rights to me for life?

I wonder if he’s successful can this effectively help RSO in Texas?

They don’t have a sound, logical argument for the registry, so all they can come up with is “what ifs.”

The registry will always fail to justify it’s existence. It will never work as intended. It’s not going “above and beyond” or being proactive. It’s simply redundant over-policing and posturing for free grants.

Last edited 2 months ago by Facts should matter

Here is oral arguments