WASHINGTON – A federal court Friday upheld a Cochise County man’s conviction for failing to register as a sex offender, even though the state’s the sex-offender registry law was passed the year after his sexual misconduct conviction.
A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected David Bernard Clark’s argument that applying a law that passed after his crime was an improper ex post facto application. Full Article
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The 6th Circuit Finally Said The Magic Word: Punitive
The 9th Circuit has turned into a crapshoot when it comes to sex offense decisions. I am not at all happy with this case. The complainant was a classic Rome/Juliet individual, and frankly in conjunction with the 6th Circuit’s decision in Michigan, this should have been a fairly simple case to argue and win.
I am glad that Janice has gone regional (if not national), as this type of case would defer to the expertise and experience that she and her legal teams have crafted in the past few years. Sadly, though, this type of decision makes her job that much harder, as precedents are difficult to navigate past, particularly at the federal level.
anyone still believe it’ll be a cake-walk through the 9th circuit…
My question is how did this guy stay under the radar for so long? I believe he was truly ignorant of the law because officials failed in their duty to warn him that the law retroactively applies to all offenders. You’d think he would have gotten a letter or something from the convicting court back in 83 regarding the new changes. Now since he went so long (33 years) they figured he had to know something about the regisration regiment so state officials just threw the book at him. 3.5 years for an offense that didn’t involve any jail time. Pretty sad however you look at it
They still believe in “frightening and high” in that neck of the woods.
Even using logic and the law, it’s not going to be so easy to end the registry. It will take years of public education and many smaller wins in court to make changes. Don’t expect any judges to be willing to make major changes to registration anytime soon. The public will clearly crucify any judge that stands up for our constitutional rights. Just look at what has happened to Judge Persky.
Don’t let this bother you… the 6th won’t be the only ruling like it’s kind. I’d wager we’ll get more judges/rulings going our way very shortly.
Even this court used the magic word “… that Arizona Court of Appeals was not unreasonable in holding that the statute’s punitive efforts failed to outweigh its regulatory purposes.” PUNITIVE
Maybe perhaps it is time we all rally to get a DUI hit list where they can’t live within 2000′ ft. of anywhere that servers alcohol, etc… instead of attacking the SOR lets get more people placed on more hit lists then perhaps it might wake people up. after all drunks have injured and killed more children than any other group combined. thus if it saves one child.
Here is video of the oral argument, so you can see these judges — in all their great majesty — uphold Justice Anthony Kennedy’s “freighting and high” lie in Smith v. Doe:
https://youtube.com/watch?v=NUqp5-JJCnA&ebc=ANyPxKoTeVuKnMo-Dvm4zPWA84Qw0OmrWNZlPo4ai1Fm8mN-q4ts5zss74yqsnEUiowHGV90e87s
The Sixth Circuit is more Republicans than Democrats, as you said, 4sensiblepolicies. Yet, the makeup of the 3 Judge panel that made the decision in the 6th Circuit was 1 Republican appointed by Bush, 2 Democrats, one appointed by Carter and one appointed by Obama in 2011. I agree with the sentiment you expressed. However, Judge Richard Posner, appointed by a Republican, but considered more a moderate now I guess, said that , but later apologized for a few months ago, the Constitution is worthless and should not even be studied by law students.
It is clear after watching the video, that the lawyer for the individual was very poorly prepared. I think with 30 minutes preparation, I would have been more knowledgeable and presented a better case. Same as to the attorneys in the Alaska case in 2003. Not hammering the validity of the recidivism rate claims, and shining a little light on the truth, I think in large part is why we now live with this nightmare.
Quite fascinating to read 9th Circuit’s decision here in contrasted with their 2009 decision in US v. Juvenile Male. Are we to believe that because the age of this Arizona man was 18 at the time of his offense that Ex Post Facto is not punitive but if he were just a few months younger and qualified as a juvenile under the law that Ex Post Facto would now be punitive as the 9th Circuit found in 2009? Simply defies all logic and reason.
United States v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009) decision:
“The retroactive implementation of SORNA’s provisions will most certainly wreak havoc upon the lives of those whose conduct as juveniles offended the fundamental values of our society but who, we hope, have been rehabilitated. For these reasons, we conclude that the retroactive application of SORNA’s juvenile registration and reporting requirement violates the Ex Post Facto Clause of the United States Constitution.”
link: https://www.courtlistener.com/opinion/1264863/united-states-v-juvenile-male/
This was not a good case for Sex Offenders and overturning Smith at all.
The lawyer was nervous and not prepared. She wasted valuable time repeating things and going off on issues that would not affect the case. She did not dispute the State’s lawyer bringing up recidivism being high for SO and not murderers.
This was also a bad case because the S.O. apparently didn’t register just to avoid being arrested on outstanding warrants, after being registered somewhere else and knowing that he had to register when he moved. The judges won’t care to even look into the overall problem with registration being punitive for all when this case is about one individual trying to find an excuse not to do time for blatantly breaking the law to avoid getting caught for other warrants.
If bad cases with unprepared lawyers keep getting to appeals and lose then we cannot overcome these setbacks any time soon.
We need a good lawyer to cherry pick some good S.O. cases and argue them as well as what happened in the 6th circuit case….even then…we need more than just ex-post-facto challenged. We need the entire scheme challenged because nobody should have constitutional rights violated when they haven’t been determined to be threat in need of any civil regulations placed on them.
There must be a similar case somewhere in 9th circuit court like in the 8th court:
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U.S. v. DAVIS•452 F.3d 991, 995 (8th Cir. 2006)
Federal law requires the district courts to consider the “nature and circumstances of the offense and the history and characteristics of the defendant” when crafting a special condition of supervised release. See 18 U.S.C. §§ 3553(a)(1), 3583(d)(1); cf. United States v. Heidebur, 417 F.3d 1002, 1004-05 (8th Cir. 2005). That inquiry must take place on an individualized basis; a court may not impose a special condition on all those found guilty of a particular offense.
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If you can’t slap a generic list of special conditions on someone that is on probation or parole based solely on an offense, how can you do it to someone that has completed their sentence and supervision and should be free to live their life?
Chris F excellent points. Good lawyers and a good case and check every box.
I haven’t heard this question addressed. Suppose a person like this Arizona man did avoid registering for nearly 30 years. Do states have some type of amnesty provision for offenders who haven’t registered for so long and they decided to walk into a cop shop to to come clean & register? Kinda of like the pregnant women who drop there unwanted babies at a hospital are immune from prosecution.
Maybe I’m just dreaming. Instead of offering offenders immunity, the cops probably arrest them on the spot and send them off to be prosecuted and sent to prison for many years
Hummm…Timmr…incentives, that is really smart of you…and would be good social policy.
I will keep this argument in mind.
Best Wishes, James
Agree with the prior comments about the attorney being unprepared and this being the wrong plaintiff to bring such an appeal. Each time one of these judgements, for non-sympathetic plaintiffs, happens, it makes the task at hand that much more uphill. Not impossible, just more difficult. I wish these attorneys would choose their battles carefully, and prepare accordingly.
azdailysun.com/news/local/imprisonment-for-failure-to-register-as-sex-offender-upheld/article_9a48051c-9bc7-5501-84e9-f0639dbd90c1.html
Seriously?!! This decision is insane. How is this NOT punishment?? Oh, because its “Public Safety”?? “Public Safety” with no validation, no supporting research, no supporting evidence…… Only instinctive “feel good” emotional appeal.
(In theory, judges are supposed to be some of the best and brightest. In theory. So, dear Arizona general public, if others assume you are a bunch of radical, knee-jerk, unthinking conservatives, this is one reason why: because of decisions like this made by 3 of AZ’s “best”.)