Friday, June 29, 2012

Understanding OBAMACARE and SORNA: Undue influences?

6-29-2012 National:

OPINION: Undue Influences?

Are we again being bamboozled? I took it upon myself to actually try to read the U.S. Supreme court decision on Obamacare, maybe I shouldn't have done that, here is why.

I came across this portion by Justice Roberts:
For this reason, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York, supra, at 162. Otherwise the two-government system established by the Framers would give way to a system that vests power in one central government, and individual liberty would suffer.

That insight has led this Court to strike down federal legislation that commandeers a State’s legislative or administrative apparatus for federal purposes. See, e.g., Printz, 521 U. S., at 933 (striking down federal legislation compelling state law enforcement officers to perform federally mandated background checks on handgun purchasers); New York, supra, at 174–175 (invalidating provisions of an Act that would compel a State to either take title to nuclear waste or enact particular state waste regulations).

It has also led us to scrutinize Spending Clause legislation to ensure that Congress is not using financial inducements to exert a “power akin to undue influence.” Steward Machine Co. v. Davis, 301 U. S. 548, 590 (1937). Congress may use its spending power to create incentives for States to act in accordance with federal policies. But when “pressure turns into compulsion,” ibid., the legislation runs contrary to our system of federalism.
[T]he Constitution simply does not give Congress the authority to require the States to regulate. New York, 505 U. S., at 178. That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.
Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system. “[W]here the Federal Government directs the States to regulate, it maybe state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” Id., at 169.
Spending Clause programs do not pose this danger when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds. In such a situation, state officials can fairly be held politically accountable for choosing to accept or refuse the federal offer.
But when the State has no choice, the Federal Government can achieve its objectives without accountability, just as in New York and Printz. Indeed, this danger is heightened when Congress acts under the Spending Clause, because Congress can use that power to implement federal policy it could not impose directly under its enumerated powers.

SORNA 42 USC 16925:
(a) IN GENERAL.—For any fiscal year after the end of the period for implementation, a jurisdiction that fails, as determined by the Attorney General, to substantially implement this title shall not receive 10 percent of the funds that would otherwise be allocated for that fiscal year to the jurisdiction under subpart 1 of part E of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3750 et seq.).
This penalty is a FOREVER penalty. So the question: Is this a undue influence?

If so, would it invalidate SORNA?

For now, have a great day and a better tomorrow.

PS: Are the lawyers of the world watching???????????????

Monday, June 25, 2012

Is it constitutional to FORCE sex offender registrants to carry the governments message?


During oral arguments of Smith v Doe, US Supreme court case (2003), there were things said by the Justices and lawyers which TODAY makes us question the legality of certain things registrants are forced to do TODAY which was not part of registration at the time of the US Supreme court case (2003).

We will not be able to answer these questions, but, lets say this is a heads up for folks to get lawyers to look for the source of the US Justices comments, and raise them in a new court action today.

The FULL text of the Oral Argument can be found HERE, however we are only addressing the portion below. Further discussion after the Justices' comments:

Mr. Roberts: Could... could the State require a special mark on your license plate?

Mr. Olson: --No, I... well, I don't know,
Justice Kennedy, but I would say that would be considerably different than what's here because that would--

Mr. Roberts: I don't think it's very different.

Mr. Olson: --Pardon me?

Mr. Roberts: I don't think it's very different.

Mr. Olson: I... I respectfully submit that it's a great deal different.

That mark on your license plate, or mark on your forehead would go wherever you would go.

It would require you to carry the government's message rather than the government supplying the message.

Mr. Roberts: Well, this statute requires you to make the government's message four times a year.

Mr. Olson: It only... it doesn't require you to make the government's message four times a year.

The government's message, I respectfully submit, is made when a citizen submits an inquiry to the State through the Internet listing.

All... it is required four times a year is to advise the government of a current location or current information so that the information on the registry is accurate and... and up-to-date.

This is information that citizens have requested of their government.

Their government has the information of people who have committed certain types of crimes, who society has perceived as particularly dangerous.

It's a self-protective mechanism.

The... not only the--

Mr. Roberts: But they... the Megan's Laws are not all one size and shape.

I mean, some of them have the disclaimer right on the page saying we're not labeling this person dangerous and... and have a chance for a person to get off it.

Here, because there's no give, it does have a punitive feel.

I mean, as far as the Federal legislation is concerned, a State that tells the whole truth... is that... that kind of law is totally acceptable within the Federal requirement, isn't it?

Mr. Olson: --It... it would seem to... well, I think the answer is that yes, it would because the Federal statute simply prescribes a floor.

It's going to be virtually impossible and quite burdensome for the State to supply what you suggest would be complete information about any individual.

What the parents and the--

Mr. Roberts: It doesn't... at least to say what... whether the crime was a misdemeanor or a felony, the disclaimer certainly to... to say, now we are not labeling this person a forever sex offender.

We are labeling this person a convicted--

Mr. Olson: --Well, and that is all that the registry does, and I submit that to the extent that your question goes to any of the seven Kennedy Mendoza-Martinez factors, it's excessiveness is... on... on the scale.

Mr. Roberts: --Yes.

Mr. Olson: And I would submit that this registry and this information, providing truthful, public record, readily accessible information is... is minimal.

Mr. Roberts: Thank you, Mr. Olson.
In the minds of the Justices and lawyers there is a difference as to "who carries the message" the registrant or the government? That sentence implies there is something obscure in law on that point, and very likely one is constitutional and the other not constitutional. Better minds need to grasp this and resolve that distinction. With that said, here are some examples:
Judge nixes graphic anti-smoking ads " A federal judge has snuffed out a government mandate requiring tobacco companies to place graphic images about the dangers of smoking on cigarette packs. Washington, D.C., Judge Richard Leon said in Wednesday’s ruling those requirements were a violation of free speech." See also: Government Speech and North Carolina's 'Choose Life' License Plate
Sentence for theft is humiliation in Bedford town center; or Poetic key to justice? Creativity (Various types of Public Punishments as their sentence).
Traditionally when someone is forced to carry the government message it has been as part of the punishment for the crime convicted of.

Today this is important where registrants' State IDs, Drivers Licenses, License plates and more recently -social networks- are concerned.

Further excellent research by a reader:
Wooley v. Maynard 430 U.S. 705 (1977)
eAdvocate Note about this case: However, I see a couple of concerns:

1) A license plate is displayed publicly, designed to be that way. A driver's license is not meant to be displayed publicly;

2) The government does not require a person to show anyone other than police. their driver's license, merchants are the ones who want to see a DL, thats not the government, neither does the government require the merchant t do that.

Same Reader brings us this:
Signs of the Times: Scarlet Letter Probation Conditions (Note: Buried in the links of this document is further documents on this discussion)

Additional research we found this:
Do judicial "scarlet letters" violate the cruel and unusual punishments clause of the eight amendment and in it is this case: GOLDSCHMITT v. STATE about putting messages on drivers' licenses. Must read...need to do other things right now. grrrrrr

Further, notice carefully that Justices were of the belief that the state was NOT declaring registrants as being dangerous. TODAY with tiers they are!

Smith v Doe 538 US 84 2003 - Transcript of Oral Argument

TRANSCRIPT: U.S. Supreme Court case

What follows is the full transcript or Oral Arguments for this case:



Chief Justice Rehnquist: We'll hear argument now in Number 01-729, Delbert Smith and Bruce Botelho versus John Doe.

Mr. Roberts.

Mr. Roberts: Thank you, Mr. Chief Justice, and may it please the Court:

Alaska's Megan's Law makes available to members of the public who seek it certain truthful information about convicted sex offenders.

The State makes this information available to help protect against the risk that the convicted sex offender will offend again.

It says that in the law.

Sex offenses are crimes of opportunity, and the purpose of making the information available is to allow the members of the public to take steps to reduce those opportunities.

Mr. Roberts: One... one line that I... I think there is respondents seek to establish in this case is that this information has to be generated by acts that occur after the conviction.

You have to fill out the form some... four times a year, et cetera.

I... I've read in the brief... I'm sure my colleagues have too the... the problem about going to the police station.

Just assume hypothetically that you had to go to the police station four times a year.

Would that change the case?

Mr. Roberts: No, it wouldn't, Your Honor.

That's the case in... in about 14 States that... that a quarterly verification has to be in person.

It is not the case in Alaska.

And simply going to the police station four times a year, which is reserved only for the most serious sex offenses, the aggravated offenses... in all other cases it's just annually... doesn't rise to the level of a burden that is at all tantamount to what we think of as punishment under the Ex Post Facto Clause.

Mr. Roberts: I have forms I have to fill out four times a year for the Government.

I'm always afraid I'm going to miss the deadline.

If I had to present myself to a... a policeman, which is itself I think demeaning, I... I just don't know any analogue for... is there any analogue for that in... in regulation of--

Mr. Roberts: In-person registration?

Mr. Roberts: --the regulation of regulated industries or things like that?

Mr. Roberts: I'm not sure of one where you actually have to show up in person, but the question is whether that in-person requirement is rationally related to a legitimate regulatory purpose.

That's the standard under cases like Flemming.

Mr. Roberts: Well, Mr. Roberts, do they in Alaska have to go personally or not?

Mr. Roberts: They do not.

It clearly--

Mr. Roberts: Even for aggravated offenses?

Mr. Roberts: --Even for aggravated offenses.

Mr. Roberts: And it can be filed by mail.

or how?

Mr. Roberts: Expressly can be filed by mail.

The instructions make that clear.

Mr. Roberts: Could... could the administrative authorities interpret the statute so that you would have to go to the station without amending the statute?

Mr. Roberts: I don't think so, because the statute says the initial registration has to be in person.

Typically it's in... in prison.

And then it says the later verification has to be in writing.

So I think it would be an unreasonable reading of the statute to say that the later verification had to be in writing.

Mr. Roberts: Do we have an issue here because this law was passed after a number of the people affected by it had already been convicted, and so there are allegations of retroactivity concerns?

Mr. Roberts: The question is whether the burdens that the law imposes constitute punishment.

If it's not punishment, then it's perfectly valid to apply it to people who were convicted prior to the effective date.

And this is not--

Mr. Roberts: Mr. Roberts, the only challenge in this case is to the retroactivity.

Is that correct?

Mr. Roberts: --Only the ex post facto challenge is before the Court in this case.

Mr. Roberts: And that's because these people were tried, convicted, served their time before the passage of the act.

Mr. Roberts: That's correct, and--

Mr. Roberts: And their principal complaint, as I understand it, is that this is punishment because we can't get out.

There's no escape from it.

We can prove with expert testimony that we are cured.

Nothing will get us out from under this demeaning regime, that much more than the burden of going to a police station, that that's what it's about, that we're locked into this for life and it has a devastating effect on our lives.

Mr. Roberts: --Well, for life, again only for aggravated; for 15 years for other sex offenses.

And yes, that is one of their arguments, that they can't get out of it.

But this Court's cases haven't drawn that line.

The question is whether the burdens are pursuant to a legitimate regulatory objective, or whether they're punitive.

For example, in cases like Kansas against Hendricks, couldn't get out of that, and yet that didn't make it a violation of the Ex Post Facto Clause.

Flemming against Nestor.

You couldn't avoid the sanction there, and yet it did not rise to the level of punishment.

Mr. Roberts: But there was a... there was a determination, at least in Hendricks, that you fit... currently fit into a certain category.

Mr. Roberts: A... a particular subclass, yes.

It was an individualized determination required because the depravation there, actual confinement, was far more severe than the depravation at issue here.

But neither an individual determination, nor a chance to get out of it is required to avoid the categorization as punishment.

Cases like Hawker and De Veau make clear that a... a reasonable legislature can treat a category... a category of sex offenders.

They don't--

Mr. Roberts: But in Hawker, you didn't have to do anything.


Mr. Roberts: --Hawker was--

Mr. Roberts: --I don't like to use the word "affirmative action", because that has a connotation in some other... but you have to take an... affirmative steps for the rest of your life in... in some cases.

And this... and this seems to me very, very burdensome and to differentiate this class.

Mr. Roberts: --Not true, of course, in Hendricks or Flemming or Salerno, no opportunity to avoid it there.

You didn't have to do anything to get the sanction applied to you.


Mr. Roberts: No, no, no.

I was... I was saying but the requirement of the statute is that for the rest of your life you have to take affirmative steps to... to re-register--

Mr. Roberts: --You have to register.

Mr. Roberts: --and to list all your automobiles and... and to show that you've--

Mr. Roberts: You... you have to fill out--

Mr. Roberts: --shaved your beard or something.

Mr. Roberts: --one... one side of one page.

That's the form that's involved here.

That in itself cannot be punishment.

We... as Your Honor mentioned... we do that all the time in... in today's society.

So it must be something else that makes this punishment.

Now, what the Ninth Circuit's... Ninth Circuit thought was that it was publishing it on the Internet, that that made it punishment.

But that's simply the most... most efficient and most economical way of making information available.

It also is passive.

It's not displayed to people who have no interest in the information, and in that sense is far less invasive.

The publication on the Internet will... yes, it may cause adverse consequences when members of the community learn this public fact about someone's past.

But the State is certainly free to weigh the convicted sex offender's interest in keeping that public fact from being widely known against the interest of those in the position of, say, Megan Kanka's parents.

Mr. Roberts: Well, Mr. Roberts.

I mean, "waive" is something a person does--

Mr. Roberts: "Weigh".

I'm sorry.


Mr. Roberts: --Oh, I thought you said "waive".

Mr. Roberts: I'm sorry.

Weigh the convicted sex offender's interest in keeping a public fact about his past secret against Megan Kanka's parents' interest in knowing that their new neighbor across the street had twice been convicted of sexually abusing young girls.

That's a determination for the legislature to make.

There are costs--

Mr. Roberts: But you could get that from the record of conviction.

Mr. Roberts: --Yes, and all the State is doing--

Mr. Roberts: But under the statute we have here, you have affirmative steps that have to be taken for the rest of the person's life if he's a violent offender, to report four times a year.

I just don't know any analogue for that.

Mr. Roberts: --Well, there are countless analogues in the regulatory regime where people have to file quarterly reports.

If... and... and the question is whether that requirement serves a valid regulatory purpose.

It can't rise to the level of punishment just because the legislature has determined that the triggering event--

Mr. Roberts: Well, but I suppose that's because you choose to be in a regulated industry, or you choose to have this withholding regime.

And it's... it's not imposed on a class of citizens by reason of their criminal past.

Mr. Roberts: --There are... there are many disabilities that are imposed as a result of a prior conviction that the Court has found don't constitute punishment.

Mr. Roberts: None which require affirmative steps.

Mr. Roberts: Well, the affirmative steps... it... that has never been the test.

The test has been whether it rises to the level of punishment.

Yes, the affirmative step of filling out one side of one page with the sort of information that you'd... would put on your application to join the Price Club requires.

There's nothing burdensome about that.

It must be in their argument the use that that information is put to.

Mr. Roberts: What is our test for whether it rises to the level of punishment?

Mr. Roberts: Well, when the--

Mr. Roberts: Didn't the Ninth Circuit found... find there was no intent to make it punitive, but looked to the effects?

Mr. Roberts: --That's right.

Mr. Roberts: Is it an effects test and how do we apply it--

Mr. Roberts: Well, it's called the intent effects test.

You'd first see what the intent is, and that is so critical, and nearly controlling because the same sanction can be punitive or civil depending on the purpose.

Even confinement can be civil if the purpose is protective.

So that's why purpose is so controlling.

Now, once you determined that there's a regulatory purpose, as every court has... not just every Federal court... every court to look at these laws has determined they have a valid civil regulatory purpose... then the one challenging that determination carries the heavy burden of establishing, by the clearest proof, with unmistakable evidence, that the effect is so punitive that the purported purpose must, in fact, be a charade.


Mr. Roberts: --But why isn't the evidence that this is... is a face plastered on the Internet, that in modern times that is the equivalent of the town square where you're shaming the bad actor?

And here, you have a person's face, and you have only the bad information.

You don't get the information that this person has successfully completed a rehabilitation course.

You don't get the information that this was on the scale of sexual offenses on the lighter side.

The... am I wrong about that?

Mr. Roberts: --Yes.

That information is available.

The circumstances, the crime for which the person is convicted, is available.


Mr. Roberts: Is it... that's on the page... the page with the photograph says what the crime was?

Mr. Roberts: --That's my understanding, Your Honor, yes, that... that... I'm not sure what it is in every State, but the... the circumstances of conviction is... it's one of the things that has to be registered, and is available to the public.

So if it... you can find out what the conviction was for.

Now, I don't... I'm sorry.

Mr. Roberts: In addition, on that page, what the viewer will see... you don't see on the page with the face any disclaimer, any statement that the State is not branding this person as dangerous.

The State is simply making a statement that there was a conviction in the past.

Mr. Roberts: It conveys simply the truthful, objective information that this individual was convicted of this crime, and the public is free to take appropriate action if they think that's... that's appropriate under the circumstances.

It is different from the historic shaming penalties because of the purpose.

And again, purpose is the nearly controlling factor.

The purpose of the shaming penalties was not to inform.

Everybody in the colonial village knew the circumstances of the offense.

The purpose was to shame.

Here, the purpose is to inform.

Mr. Roberts: Mr. Roberts, on that point you said this is truthful information, and it is.

My question is, isn't... it's not the whole truth because the successful rehabilitation in one case is not known.

It's not known in the other case that a judge determined this... this person had been cured to the extent that he could have the custody of a... a minor child.

That information is not known.

So the... the public is getting only the bad, and not the good.

Its judgment is being skewed.

And that's why it has a punitive flavor.

Mr. Roberts: Well, it conveys the information that the legislature thought was pertinent for people to take action to protect themselves if they think it's warranted.

Nothing prevents them from finding out more if they want to... if they think that's pertinent--

Mr. Roberts: But nothing would prevent anybody from going to the court, or the police station and getting a record of a particular person.

It's made easy for them by the State... access is made easy... but only access to the bad information.

Mr. Roberts: --Well, access to the information that the legislature thought was pertinent and that people wanted to learn.

There is no requirement--

Mr. Roberts: Mr. Roberts, would it be possible for a defendant to include additional information on the form, and if so, would it appear on the Internet?

Mr. Roberts: --There's no provision for that under Alaska's laws.

I am aware of situations where... where they have a more active notification, where the offenders have taken steps to say, well, here's my side of the story, but there's no provision for that on the Internet.

Mr. Roberts: Suppose they had the same statute, but instead of it... applying it to people who were convicted, they applied it to people who had been arrested, or alternatively, they applied it to people whom a policeman said he had gotten suspicious information about that he believed was accurate, no arrest... now, suppose it's exactly the same, but they just do... they apply it not in that way.

What part of the Constitution, if any, would that violate?

Mr. Roberts: Well, it might violate the Due Process Clause if there's not a rational connection between--

Mr. Roberts: Well, it's rational in the sense that a... a reasonable person would think that these... it's a way of stopping these, you know, criminals.

They're suspicious.

They're... they're... suspicious people against whom there are suspicions are more likely to commit crimes than people who are not suspected.

Mr. Roberts: --The legislature would have to show a rational basis for its categorization.

That's the standard--

Mr. Roberts: All right.

Your answer is it violates substantive due process or nothing.

Mr. Roberts: --Or... it may or may not, depending on what it shows.

Mr. Roberts: All right.

I've got that.


Mr. Roberts: Here the legislature had a solid basis, a basis that this--

Mr. Roberts: --Yes.

Mr. Roberts: --Court has recognized, as recently as last June in the McKune case, for the conclusion that those convicted have a high rate of recidivism.

Mr. Roberts: Well, are you assuming from Justice Breyer's hypothesis, Mr. Roberts, that the policeman who has spotted some suspicious... that these people have previously been convicted, or that this is just the... the beginning of the whole story is that a policeman spots someone?

Mr. Roberts: Well, I understood the question to be it's just the beginning of the whole story, and in that case, I'd question whether--

Mr. Roberts: Well, there's certainly no ex post facto problem there, is there?

Mr. Roberts: --No, there wouldn't be--

Mr. Roberts: No, what I was driving at is suppose that this statute too is... I... suppose I were to believe it was excessive in light of its purpose in respect to some... some people, but not to others.

What part of the Constitution would it violate, if any?

Mr. Roberts: --Certainly not the Ex Post Facto Clause because in Seling against Young, the Court said you look at the law on its face, not as applied.

Halper had started looking at laws as applied to determine whether they're punishment, and in Hudson and in Seling, the Court said we're not going to do that.

I'd like to reserve the remainder of my time, Your Honor.

Mr. Roberts: Very well, Mr. Roberts.

General Olson, we'll hear from you.


Mr. Olson: Thank you, Mr. Chief Justice, and may it please the Court:

Congress and the legislatures of 50 States have agreed that citizens should have access to truthful information concerning the identity and location of convicted sex offenders.

Mr. Roberts: Well, I suppose that the public in theory has access to it anyway because convictions are a matter of public record, and presumably any citizen who wanted to dig deep enough could find out who had been convicted of what.

What this scheme involves is getting a big megaphone, in effect, making it more readily available.

Is that what we're talking about here?

Mr. Olson: I don't agree with the characterization of this as a megaphone.

What I... what I would characterize it instead of saying it is the least intrusive, most passive way to provide information that is already available to citizens, and can be obtained by citizens, but to make it more accessible to them because the people have decided that they want this information.

Mr. Roberts: But it isn't passive because you have a lifetime obligation to update it.

Mr. Olson: Yes, but it's--

Mr. Roberts: It is not passive.

Mr. Olson: --But it's... but it's minimally passive and... and minimally--

Mr. Roberts: Now we're up to minimally passive.

Mr. Olson: --Well, Justice Kennedy, we have to register to vote.

We have to register to marry.

We have to register to get a driver's license.

We have to disclose our homes when we buy a car, when we get a divorce, when we fill out a census form.

Mr. Roberts: And most... most of those do not involve... involve shame or ridicule.

This does.

Mr. Olson: Well, the... that is a separate question.

I'm... what I'm saying is that the burden of registration or of keeping information current is a minimally intrusive burden.

Now with respect to the question of shame, that arises, to the extent that it exists at all, from the conviction of violating a sex offense.

There is due process in connection with that... that... to the extent that process is due... and we'll get to that I know in the subsequent case, but--

Mr. Roberts: Well, but precisely, but that... that shows that there's an added burden here that was added by the State after the conviction.

Mr. Olson: --Yes, but that... that is true of many regulatory measures.

You can lose your right to practice in the securities field... and that's been held... because of a conviction or to practice banking or the right to vote.

There are other consequences.

This Court has repeatedly said--

Mr. Roberts: If a banker or securities dealer were convicted of... of... of a crime, could the Government after the fact... prospective... pardon me... retroactively... retroactively require that he or she file their... their earnings statements for the rest of their life with some regulatory agency?

Mr. Olson: --Well, I don't... I... I don't... the Court has never addressed that question, but the Court has held that after the fact, it can... the... the legislature can prevent those persons from practicing that profession, including the practice of medicine, being a fund raiser for a union, losing the right to vote.

The fact that this... what the... this--

Mr. Roberts: But, General Olson, there's a... a difference in those... those restrictions that affect one part of one's life.

I can't practice a particular profession, but I can go out and get a job.

I... I'm not affected in where I live.

My neighbors know that I've committed a crime, but they don't... the same reaction... the notion that I am being labeled not a convicted offender... which I am... but a sex offender, a current status... a current status with no opportunity to get out.

Mr. Olson: --Well, the... well, the fact of registration and disclosure relates to the conviction of a sex offense.

The public in 50 States and the legislature and Congress have determined in response to the requests of the people... as Mr. Roberts said, the test, according to this Court's jurisprudence, is the intent.

The intent here is not to punish.

The intent is to respond to citizens who have--

Mr. Roberts: Well, I think it's... it's easy for a legislature to say that, and in part, it's right.

But in part, it seems to me that there are many indicia of punishment here as well.

That's why you just don't rest when the legislature says it's regulatory.

You must go beyond that.

Mr. Olson: --Yes.

This Court has said that only... you would go beyond that only if the evidence was the clearest proof, unmistakable evidence that the intent or effect was punitive as opposed to regulatory.

In this case, there is no affirmative restraint on motion.

There is no confinement.

There is no restriction on travel or employment or recreation, no obligation to submit to searches, intrusive supervision or questioning.

Mr. Roberts: Well, there's no formal restriction on employment, but it... in many of these cases, these people have terrible times renting a place to live, getting a job.

Mr. Olson: Well, the empirical evidence is not great that that is indeed a significant statistical problem, but the problem, to the extent that it may exist, results from the conviction of a... of an... of an offense--

Mr. Roberts: No.

With... with--

Mr. Olson: --about which an employer may want to know.

Mr. Roberts: --With respect, Mr. Olson, I mean, I think that's what's bothering us.

The... the offense has resulted in a conviction and a penalty.

Each is a one-time event, as it were, or a one-time status and each is over.

What this is doing is, in effect, imposing a status of public shame for a period of 10 years, or whatever it is, or a period of life in... in the case of certain offenses.

And that is not merely the consequence of the conviction for the crime which was defined, is over, and done with.

This is something new.

Mr. Olson: Well, to apply the seven... to the extent that the Court would apply the Kennedy Mendoza-Martinez factors, there is no affirmative disability or restraint.

Registration or publication has never been considered historically as punishment.

The... the... there is a regulatory purpose.

The... even the Ninth Circuit--

Mr. Roberts: May I ask you a question about that?

I... I understand that the... the percentage of sex offenses in Alaska with children is extremely high, and what is... has been the effect of this scheme if it's been employed?

Has it had some effect there--

Mr. Olson: --I--

Mr. Roberts: --in reducing the number of sex offenses?

Mr. Olson: --I do not know the answer to that, and perhaps Mr. Roberts does.

But what this is... and I think this is a proper way to think of this statute... in connection with a class of offenses, where the... where the rate of recidivism is significantly higher... as this Court has held very recently... than any other crime, people are asking their government please allow us to know when we have someone in our neighborhood.

When we... when we're hiring a new--

Mr. Roberts: Could... could the State require a special mark on your license plate?

Mr. Olson: --No, I... well, I don't know, Justice Kennedy, but I would say that would be considerably different than what's here because that would--

Mr. Roberts: I don't think it's very different.

Mr. Olson: --Pardon me?

Mr. Roberts: I don't think it's very different.

Mr. Olson: I... I respectfully submit that it's a great deal different.

That mark on your license plate, or mark on your forehead would go wherever you would go.

It would require you to carry the government's message rather than the government supplying the message.

Mr. Roberts: Well, this statute requires you to make the government's message four times a year.

Mr. Olson: It only... it doesn't require you to make the government's message four times a year.

The government's message, I respectfully submit, is made when a citizen submits an inquiry to the State through the Internet listing.

All... it is required four times a year is to advise the government of a current location or current information so that the information on the registry is accurate and... and up-to-date.

This is information that citizens have requested of their government.

Their government has the information of people who have committed certain types of crimes, who society has perceived as particularly dangerous.

It's a self-protective mechanism.

The... not only the--

Mr. Roberts: But they... the Megan's Laws are not all one size and shape.

I mean, some of them have the disclaimer right on the page saying we're not labeling this person dangerous and... and have a chance for a person to get off it.

Here, because there's no give, it does have a punitive feel.

I mean, as far as the Federal legislation is concerned, a State that tells the whole truth... is that... that kind of law is totally acceptable within the Federal requirement, isn't it?

Mr. Olson: --It... it would seem to... well, I think the answer is that yes, it would because the Federal statute simply prescribes a floor.

It's going to be virtually impossible and quite burdensome for the State to supply what you suggest would be complete information about any individual.

What the parents and the--

Mr. Roberts: It doesn't... at least to say what... whether the crime was a misdemeanor or a felony, the disclaimer certainly to... to say, now we are not labeling this person a forever sex offender.

We are labeling this person a convicted--

Mr. Olson: --Well, and that is all that the registry does, and I submit that to the extent that your question goes to any of the seven Kennedy Mendoza-Martinez factors, it's excessiveness is... on... on the scale.

Mr. Roberts: --Yes.

Mr. Olson: And I would submit that this registry and this information, providing truthful, public record, readily accessible information is... is minimal.

Mr. Roberts: Thank you, Mr. Olson.

Mr. Thompson, we'll hear from you.


Mr. Thompson: Mr. Chief Justice, and may it please the Court:

We believe that the Alaska Sex Offender Registration Act imposes punishment because it possesses three features which are classically considered to be punishment, and not like any other civil or regulatory measure this Court has seen before.

First of all, the sanction attaches automatically and inescapably solely on a basis of a prior conviction, without any determination of present dangerousness at all.

Secondly, the sanction is a pervasive regulation of the person themselves.

There is no attempt to try to regulate an activity or a profession here.

It's a regulation of the person himself.

Mr. Roberts: Well, to what extent do you... do you mean, Mr. Thompson?

You said to regulate the person himself.

I mean, he is not circumscribed in his activities, is he?

Mr. Thompson: He has to report four times a year.

Mr. Roberts: But not in Alaska--

Mr. Thompson: Just like they do on probation.

Mr. Roberts: --In Alaska, not in person, I take it.

Mr. Thompson: Well, we respectfully disagree with Mr. Roberts' characterization of the statute.

The statute gives unfettered discretion to the Department of Public Safety... the police... to administer it in a way that it deems appropriate.

Mr. Roberts: How... how has it been administered?

Mr. Thompson: Regulatorily they have done it by mail.

But I can cite you instances, with affidavits in a parallel case, of people that were mandated to report to the police.

They can do it and--

Mr. Roberts: Well, but that's not part of--

Mr. Thompson: --have the discretion to do it.

Mr. Roberts: --That's not... that's not part of the record here, is it?

Mr. Thompson: That is not part of the record here.

But they have--

Mr. Roberts: At least... at least--

Mr. Thompson: --the unfettered discretion by the pure statutory language.

Mr. Roberts: --When the... they have to replace the photographs periodically.

Mr. Thompson: They do, and... and they're required to... on their quarterly report to report any changes in their physical characteristics, they gain weight, they grow gray hair, they get lasix surgery, don't have glasses, grow a beard, get fat.

Whatever it is, they've got to report that information.

And you know that's going to be a triggering event.

I mean, if they look different, the police are going to have them come back in and get a new photograph--

Mr. Roberts: Well, but I mean, how is that different?

Everybody... you're sort of turning this on whether you have to walk to the police station or not.

I mean, a lot of people have to go in and report different things, send in forms, give their pictures, even give their fingerprints.

I would think that the problem is what happens to that information later, that everybody in the neighborhood knows it, that they're likely to shun the people, that... that it may be too broad.

I mean, is that... is it really the police... having to walk somewhere and write something as opposed to sending in a report that makes all the difference?

Mr. Thompson: --No.

I mean, what I... what I... the third characteristic is... is the stigmatizing characteristic, which I want to... want to talk about here.

But it's not just--

Mr. Roberts: Well, what about someone who is truly a dangerous sex offender, who poses a real risk to children in that area?

Now, what about that?

Are... is this a... a scheme that is applied to such a person that poses constitutional problems, do you think, or does public safety rise to the level where it can be responded to in this fashion?

Mr. Thompson: --Well, unlike the... the Kansas situation, Kansas v. Hendricks, there's no effort to weed out those who are dangerous from those who are not.

Mr. Roberts: Yes.

That's not the question I asked you.

Mr. Thompson: I apologize.

Mr. Roberts: I asked you whether, as applied to someone who is exceedingly dangerous, in your view does the scheme survive?

Mr. Thompson: Well, no.

It's still an evasive regulation of the individual just like probation and it's still a stigmatizing system that labels them as dangerous.

Mr. Roberts: Maybe he deserves stigmatization if... with the high recidivist rate under the facts that Justice O'Connor gave you.

The person is still dangerous.

Mr. Thompson: But not all of them are.

And that's the problem with this statute.

It applies to those people that are demonstrably not dangerous.

Mr. Roberts: If that's the problem--

--But your--

--how... how... this is... what is your response to Justice... to the argument that was made on the other side?

It said simply this, that you're... you're raising an ex post facto claim.

Now, we don't want to be nitpicking about this, but an ex post facto claim is a question of whether this is punishment, and they're saying it's not seen as punishment.

It wasn't their intent to punish.

It was their intent to inform so that the thing won't happen again.

That's not a punitive intent.

And therefore, your claims about how bad this is may be right.

And suppose I accept them.

Suppose I think they're right.

Should I not, nonetheless, wait until somebody raises a substantive due process claim?

That way you can decide if the problem with the statute is overly broad, if the problem is that some people should have it applied to them and others shouldn't.

All the things that you mentioned would come into play.

But as far as punitive intent is concerned, that's not the legislature's--

Mr. Thompson: Well, we... I'm sorry.

We disagree--

Mr. Roberts: --I mean, that's the argument.

Mr. Thompson: --Yes.

Mr. Roberts: And I'd like to... but tell me what about the relation of the substantive Due Process Clause... about why isn't that the better vehicle to make your argument?

Now, that's what I'd just like to hear you discuss.

Mr. Thompson: I mean, it certainly is a vehicle, you know, to talk about whether or not it's narrowly tailored to... to a specific regulatory goal.

I think that is a proper challenge, and it was challenged at the lower court level.

But we're here today on an ex post facto question before the Court, and the question is, is it punishment, or is it not?

And we... we respectfully disagree that this is intended to be purely a regulatory measure.

And we disagree because the State's sole reliance is on the language found in the preamble of the statute, that it's designed to protect the public.

That's one of the penal goals under the constitution in the State of Alaska for criminal justice system.

Mr. Roberts: Of course, that's true, but in my mind rings a case, in which I was in dissent, but the majority has the law, and that's Hendricks.

If, after all, it's not punishment to put a person in a cell... and I thought it was, but the majority thought it wasn't... why is it punishment, following the law, to simply require the person to make reports four times a year?

Mr. Thompson: Well, it is... it is... probation requires the exact same thing, and that's our point.

Mr. Roberts: And it... it required less than putting the person in what was, in effect, a jail cell.

I'm... I'm looking at the precedent on ex post facto.

Mr. Thompson: Certainly.

And... and... and you know, Hendricks and Salerno present the types of cases that are steeped in the pedigree of this Court looking to the need to protect the public from those people that are actively dangerous now, and that's why it was important in Hendricks that there was, in fact, those protections afforded to the individual.

I mean, it doesn't happen automatically that Hendricks was going to be put in jail.

There had to have been a jury trial, or trial by a judge with a preponderance beyond a reasonable doubt, and he's allowed an annual review.

He can petition at any time.

The secretary, at his own discretion, can remove that restriction.

So the duration of that is solely limited and... and looks to the purpose to protect the people from those... the public from those people that are dangerous.

None of those protections are here.

In fact, this is a wide-sweeping statute that takes everybody in.

And... and we have to look--

Mr. Roberts: I... I guess that one of the problems I have with... with your side of this case is that this is public information insofar as a conviction is concerned.

Insofar as addresses, credit card companies, and driver's license bureaus have this stuff all the time.

It would seem to me that if the Court were to strike down these laws, some private business could have a web... a web page, just like credit card companies do.

There may be some Privacy Act concerns, but still, this is truthful information.

Mr. Thompson: --It's not truthful information, and respectfully, I... I agree with what Justice Ginsburg was saying earlier.

I mean, it's... it's false--

Mr. Roberts: It's... it's truth as far as it goes.

There's nothing false in the information reported.

I questioned whether it was the whole truth because it has the bad side, but none of the good.

Mr. Thompson: --It's sort of the sin of omission, particularly when we look... we look to--

Mr. Roberts: Well, I... I suppose a lot of credit--

Mr. Thompson: --Well, and... and it goes further than that.

Mr. Roberts: --the credit reports are misleading too.

Maybe the person is now very successful, and is paying all their bills.

You don't know.

Mr. Thompson: But the legislatures made it clear that they are telling the public that these people weren't just someone who once had a conviction.

They're telling the public that these people are actively dangerous now, presently dangerous to be actively avoided.

And how do they do that?

If you know someone is on the registry... and the idea being make my own informed choice.

Now that I know this information, get some more information.

And if you know they're on the registry and you get the rest of that information, you know they're cured, you know they've been great--

Mr. Roberts: Well, does... does any entity in a society, a... a nursery school have an interest in... in knowing the background of their employees?

Mr. Thompson: --Readily available, and it has always been available and it was available before the statute.

Mr. Roberts: Well, they have an... they have an interest in knowing that.

That isn't... that isn't somehow punitive or... or half the truth.

They make the... they make the inference that there's... that there's a hazard here, a risk they don't want to take.

Mr. Thompson: What I was getting at earlier was... is that the State of Alaska makes it a crime, felony child endangerment, if you leave your kid alone with someone who's on the registry.

And it doesn't matter that that person is safe.

It doesn't matter that that person is not dangerous.

So the State is telling you that they are to be avoided.

Mr. Roberts: Well, but that... that issue is not... not before the Court, and if that's so, this... this just shows that it's a regulatory scheme which has another valid purpose.

Mr. Thompson: We disagree.

What we think that demonstrates is that it's a clear proclamation because it came at the same time as the amendments in '97, a clear proclamation of a legislative intent to tell the public that everyone on that registry is currently, presently dangerous.

Mr. Roberts: Well, you disagree with... you disagree with the court of appeals then when they said it was not a punitive intent on the part of--

Mr. Thompson: Yes, we do disagree with that and we... we briefed that in our brief.

Mr. Roberts: --Well, you would... you would concede that it is least ambiguous because the legislature said our purpose is regulatory.

So you're not going to say that's... that's incredible.

Mr. Thompson: Well, the legislature never said it was a civil regulatory measure.

What the legislators said and what their sole reliance on intent is, is in the preamble where it says it serves to protect the public.

And... and it's clear that protection of the public in... in Salerno was... was viewed as a proper regulatory goal, but in... in Brown it's also viewed as a proper criminal goal.

And in Alaska, it's the goal... one of the stated goals under article I, section 12 of the penal administration... it is a criminal goal to protect the public.

So I don't think that... that's... that's--

Mr. Roberts: But it's a civil goal too, I--

Mr. Thompson: --It is a civil goal too.

Mr. Roberts: --You rely to some extent on the placement in the criminal code both that the information about this registry system has to be part of every criminal judgment and part of every rule 11 colloquy.

Mr. Thompson: That's... that's true.

The legislature, you know, in our view considered it such an important component and consequence of any criminal conviction, that in fact, that's the only information that a judge has to give to someone convicted of a sex offense in writing.

Mr. Roberts: So I thought it might be fair for you to say, well, it's... it's mixed.

It's ambiguous.

In some respects, it's... looks regulatory.

In other respects it looks punitive.

I thought that's what would you say instead of... so we have to look further.

But are you saying right from the very reading of this law, it is necessarily punitive?

Mr. Thompson: We do believe that.

I mean, it was intended, again, to protect the public, but when you look to a law that's... that's geared directly at individuals or groups of individuals and not set out to regulate any kind of activities, you know, that is an intent in our view to... to punish--

Mr. Roberts: Would it affect--

Mr. Thompson: --solely based upon a prior conviction.

Mr. Roberts: --Your claim is an ex post facto claim, a retroactivity claim.

Suppose this scheme, the Alaska scheme, did allow people... like the parties here... to say, I'm no longer dangerous.

Here's the documentation of that.

Take me off the list.

Would you say, nonetheless, it's still punitive?

Are you saying that even if someone made no showing at all of lack of dangerousness, this is... it would be ex post facto and therefore must fall?

Mr. Thompson: If I... Justice Ginsburg--

Mr. Roberts: You... you are asserting that Doe I and II are people who are no longer dangerous.

Mr. Thompson: --Yes.

Mr. Roberts: But I'm asking you about the people in this large category who are still dangerous, or at least have made no showing that they are not dangerous.

You would have the same ex post facto argument with respect to those people?

Or does it depend, to some extent, on the ability to show that you are not dangerous?

Mr. Thompson: First of all, I think we would... we would take the position that in the absence of any criteria of actual present dangerousness demonstrates that... that the legislature is aimed at the prior conviction and tacking on certain responsibilities to the prior conviction as opposed to really trying to fit the goal here of protecting the public from dangerous people.

Mr. Roberts: But if the legislature says we don't want this to be punitive, therefore we will give everyone who was a convicted sex offender an opportunity to show that they're no longer dangerous, and then there will be a determination made, yes, you are, no, you're not, would you still be making the ex post facto argument for the people who have not shown they're no longer dangerous?

Mr. Thompson: I think it would certainly be a closer call, and--

Mr. Roberts: Why would it be a--

Mr. Thompson: --and my clients would certainly invite that hearing.

Mr. Roberts: --Why would it be a closer call?

Why would it be a closer call?

Is everything that is bad regulation punishment?

I mean, all that would show... all you're claiming is that some people who are not dangerous are... are wrongly covered by this regulatory measure.

That still doesn't prove that the regulatory measure is punitive.

It just shows that it's stupid.


That doesn't make it violate the Ex Post Facto Clause.

Every regulatory measure that goes too far is... is not criminal punishment.

Mr. Thompson: It is if it looks just like probation and has the same consequences as probation because probation is historically--

Mr. Roberts: That's... that's... the question Justice Ginsburg started with is every time... you just replied to Justice Scalia... and what I hear are words that seem to apply with equal force to a perfectly-tailored statute that would catch only the most dangerous sex offenders who everyone agrees are virtually uncontrollable and might repeat their offense many, many times.

See, if it applies... if the argument... the question people are asking you... I'm simply repeating it... is, on your argument why isn't that just as much an ex post facto law?

What has it got to do with the matter that it's overly broad, et cetera, which sounds to me like a substantive due process argument, not an ex post facto argument?

That's the same question.

But I would like you to focus right on it.

Mr. Thompson: --Well, I apparently have not been doing a very good job of it, but I'll try.

When we look to whether or not the statute imposes a punishment, I think it's important that we look to whether or not it... it's... fits with the umbrella things which have historically considered to be punishment.

And that's one of our starting points, and that's why I keep going back to the concept of probation and parole because historically there's no dispute that probation is a depravation of liberty.

Not... it's not like going to jail, but it's a depravation of liberty.

And... and it's been considered as punishment, and that's what this thing does to people.

Now, if it was a perfectly-tailored... such that it could weed out the dangerous from the non-dangerous... well, we would invite that because my clients wouldn't be here today.

My client has been determined, you know, to be not dangerous by a superior court family judge.

But would it still be punishment?

I think we'd have to look at the... a little bit closer at it.

But, you know, if there's a closer nexus between the public purpose and there... there is a weeding out, maybe it wouldn't be punishment because maybe it's... it's escapable, it... it's--

Mr. Roberts: But then... then you might--

Mr. Thompson: --at that point, it's not regulating him for life.

Mr. Roberts: --Well, at that point at least there would be... I... I assume your... your point would be that there... there is at least a... a credible basis to say that if it covers only those who are affirmatively shown to be dangerous, the object is simply to apprise the public to who is dangerous, and that doesn't sound very punitive.

But if there is no attempt to weed out the dangerous from the non-dangerous, then the claim that the object is simply to apprise the public of who is dangerous is not so credible.

I mean, isn't... isn't--

Mr. Thompson: That is my point.

Mr. Roberts: --that one of your points?

If that's your point, then how do you respond to their argument which is that that's just too tough to do?

We don't know enough about it.

It... it would invite endless hearings.

It would be impossible to administer this statute.

I'm not making the argument.

I'm repeating it--

Mr. Thompson: Right.

Mr. Roberts: --for you to respond to.

Mr. Thompson: I guess that would make the... the due process hearing or the... the hearing that is established in... in Hendricks, and the hearing that's established in Salerno futile as well.

I mean, judges are called upon every day to make determinations as to whether or not people are presently dangerous.

They do it every day in the context of evaluating the sentencing criteria in the State of Alaska.

It's called the Chaney Criteria.

They have to look to whether or not someone poses a risk to the community.

That's what they have to do in--

Mr. Roberts: How many Megan's Laws have that regime?

I... I understand that some of them do.

Some of them are like Alaska.

They say this is based solely on your past conviction.

Others say you have an opportunity to show that you're no longer dangerous.

What... in... in the range of Megan's Laws that all the States have, how many treat this as something you can get out of by showing you're not dangerous?

Mr. Thompson: --You know, I don't have a... a number for you.

I can't tell you if it's 23 States or not.

I don't... I'm sorry.

I don't--

Mr. Roberts: What's wrong about--

Mr. Thompson: --I don't know that.

Mr. Roberts: --What's wrong about warning the public about who may be dangerous?

You... you seem to say that it's only... it's only okay if the State warns the public about who is dangerous.

What's wrong about warning the public about who may be dangerous?

Let the public make... you know, the later... later determination.

Mr. Thompson: I guess we get down to this who determines who they're... who may be dangerous or not.

I mean, what... what's the criteria for that?

Mr. Roberts: What is irrational or unconstitutional about warning the public about a category of people who may be dangerous as to whom... as the entire category of whom, there's more likely to be danger than... than with respect to other people?

Where is it written that you can only warn the public about those whom you have... are sure are dangerous?

Mr. Thompson: Part of the problem with the statute, it's not just a warning of the public.

I mean, it... it's... there are really various components.

It's not just a notification statute.

I mean, you know, the public right now has access to... through another statute that we have... to offender information.

All they've got to do is request.

And this is an unnecessary statute in... in one sense.

Does it broadcast it on the Internet?


But the same information is available, and it's information that's available not just going to a courthouse, but you can actually request the State for that information.

And... and for some people, information may be limited.

There are some restrictions.

Mr. Roberts: I'm... I'm not sure if it helps you or hurts you.

It... it indicates that... that the most distressing and damaging fact that you have... that you have the conviction is available to the public anyway.

And this is just a regulatory scheme to... to make that information more clear as to how many people are in the community have suffered that conviction.

Mr. Thompson: What I was going to say is that the information as to serious offenses that are beyond 10 years is limited.

There's some sense of limitation, some sense of it's been a long time.

So that information is limited to those people that have a need to know, like for example, the day care providers and the teachers and... and schools who want to know--

Mr. Roberts: Well, but I take it under the registration form we're talking about, that the date of the conviction is there, and the... the citizen can make up his or her own mind as to whether the conviction was so long ago that they're no longer worried about it.

Mr. Thompson: --They really don't have the right kind of information to make that decision.

I mean, what they have is only the conviction--

Mr. Roberts: You want... you want more information on this form?

Mr. Thompson: --Absolutely not.


The... you know, I don't.

I don't want more information.

And the... the tribunal that should be making the determination of dangerousness really ought to be in a thoughtful, rational process in front of a... of a judge.

Mr. Roberts: What... what if the State simply decided we're going to put on the Internet, the same way that Alaska does here, the names of all the people who had criminal convictions of any sort without any more information in... in the last 5 years?

Now, if they applied that to people who were convicted after they passed it, would that be ex post facto?

Mr. Thompson: I don't know that it would.

It would probably have the same stigmatizing effect.

I mean, I just... I want to share with you the State has already done that in the State of Alaska.

You can get information as to anyone in the State of Alaska by a click of a mouse by going on the Internet, if their convictions were in the State of Alaska.

That information is already available.

Mr. Roberts: If it had the same stigmatizing effect, why would your answer be different?

Why... why would it not be ex post facto in that case, whereas it is in this?

I'm not sure what line you're drawing.

Mr. Thompson: Well, the stigmatizing effect here is that these people are being currently labeled as... as sex offenders.

Mr. Roberts: No.

I... I realize that, but you said in answer to the Chief Justice's question that there would be the same... in your judgment, there would be the same stigmatizing effect if they put every criminal conviction on... on the Internet.

And if... if the stigmatizing effect would be the same and the information would be just as readily available, why would your answer be different, that that would not be ex post facto whereas this is?

That would not be punitive.

This is punitive.

Mr. Thompson: Well, perhaps it would, but you know, our analysis of this ex post facto argument is really a composite of a variety of components of the statute and not simply the public notification provision.

Mr. Roberts: Well, what--

Mr. Thompson: It's certainly an important part.

Mr. Roberts: --You're tapping everything, the register and--

Mr. Thompson: Yes.

Mr. Roberts: --So you would say even just the requirement that they register, even if it's just circulated to law enforcement people, that's impermissibly retroactive as well.

So there can be... is there any scheme for keeping track of ex-offenders that would pass the ex post facto test in your judgment, or is it just they've served their time, they've done whatever, parole is given to them, and that's it?

Mr. Thompson: You know, if... if the requirements of the individual subject to the registration requirements alone were not as onerous as here where they have to report on every 90 days all kinds of personal information, and if they don't, then they're going to be... go... go to jail, it may be a closer call.

I mean, there was the... the history of the felony registrations, but they've never really been approved by this Court as somehow being a proper regulatory measure.

Mr. Roberts: On the other hand, I don't know of any precedent... perhaps you can tell us if there is... from this Court saying that a measure with a declared regulatory purpose is, nonetheless, impermissibly retroactive.

I don't know of any case that so holds.

Mr. Thompson: Nothing is jumping out at me either.


Mr. Roberts: Let me ask you to comment on... on one thing--

Mr. Thompson: But these are unique statutes.

Mr. Roberts: --I'm sorry.

One... one thing that makes it more difficult perhaps than it might be to see your side of the argument... go back to the Chief Justice's question.

What if they put every criminal conviction on the Internet?

Well, there's one difference between the situation that would obtain then and the situation that... that you're objecting to here.

That is, that there is not the same high recidivism rate for crimes generally that there is, apparently undisputedly, for sex crimes in the State of Alaska.

And therefore, when you earlier made the argument that there is something very... something less than credible in the State's claim that it's merely trying to inform the public when, in fact, it makes no differentiation between current dangerousness and un-current dangerousness, the answer is there is... or an answer is... there is a very high recidivism rate, and that high recidivism rate does support the claim that there is something that... that it is credible to say that by publishing this information, we are simply trying to inform people of a probability of dangerousness, leaving them to do what they want.

What is... is there any... do you have any response to this claim that the high recidivism rate itself supports the argument that, in fact, this is nothing but a safety information kind of measure, whereas broadcasting all criminal convictions would not be justified as having a good fit between the object and what the State was doing?

Do you have any response to that?

Mr. Thompson: I certainly don't profess to be an expert on the statistical recidivist rates.

I think that is--

Mr. Roberts: You don't dispute the State's recidivism figure, do you?

Mr. Thompson: --Well, actually vis-a-vis the brief that was submitted by Massachusetts as an amici in this, sets forth a very different pattern of recidivist rates.

I mean, when we say recidivist rates, are we talking about repeat sex offenses?

Are we talking about repeated crimes?

I mean, there are all different ways in which--

Mr. Roberts: They're making specific... they're making specific claims.

They... they set out specific percentages with respect to Alaska.

Are you disputing those figures or not?

Mr. Thompson: --We do.

Mr. Roberts: You do.

All right.

Mr. Thompson: We do, but I don't think we did it directly in our brief, but I think other... other briefs--

Mr. Roberts: That's... that's the trouble.


Mr. Thompson: --do.

You know, even if we accept--

Mr. Roberts: Do you take into account that the degree of harm, if you make a mistake?

That is, suppose somebody is a pickpocket and you have a list and say, pickpockets have to register, the same thing as here.

So if you make a mistake about a pickpocket, somebody is out of some change.

If you make a mistake here about a person's dangerousness, the consequences could be very grave.

Mr. Thompson: --And there's a solution to that, and the solution is have... is to look to the individualized determination of the person's present dangerousness.

And, you know, in the McKune case, the--

Mr. Roberts: Would it be all right to have the person report every 90 days to have a determination of present dangerousness?

Mr. Thompson: --It certainly wouldn't be necessary for John Doe I.

He's already had a determination that he's not dangerous by a court.

I don't know why you'd have to continue to redo that.

I mean, the idea is you get progressively--

Mr. Roberts: I'm interested in the Chief Justice's hypothetical.

Mr. Thompson: --No, it wouldn't be all right.

Mr. Roberts: It wouldn't be all right?

Mr. Thompson: No, not every 90 days.

That's... that's awfully burdensome to require someone not just to come into the police station or fill out a written form, but to require someone... as a direct consequence of a prior conviction, to require someone to come and... and be subject every 90 days to a judicial scrutiny as to whether or not you're still dangerous, that seems to be a pretty big disability.

Mr. Roberts: It is a way out.

Mr. Thompson: It is a way out.

Mr. Roberts: And one of your complaints is this system provides no way out.

Mr. Thompson: That's absolutely correct.

It is a way out.

The Alaska Sex Offender Registration Act really is nothing other than tacking on... for my clients... a lifetime of probation, a lifetime of community supervision, having to report to the police... my time is up.

Mr. Roberts: Thank you, Mr. Thompson.

Mr. Roberts, you have 4 minutes remaining.


Mr. Roberts: Thank you, Mr. Chief Justice.

I think it is very important to place the various points that have been touched on this morning in the proper legal framework.

The question, Justice Kennedy, is not whether it's burdensome to require someone to fill out a form and verify it.

The question is, is that so punitive that you don't believe the legislature when it says that we're doing this to prevent future harm?

The question, Justice Ginsburg, is not whether it might be a better system if it included other information, or whether that would be too burdensome for the State.

The question is, does the failure to put on ameliorative information convince you that the legislature was simply not telling the truth when it said we're doing this to prevent future harm?

And the question is not whether you should have an individualized determination or a group determination.

It is, is the group determination so irrational that you think the legislature was not really interested in preventing future harm, it was just doing this to punish?

In fact, as Justice Ginsburg pointed out, this Court has never found a law with a civil regulatory purpose to violate the Ex Post Facto Clause.

Mr. Roberts: Is the effects test used to impeach the finding that the legislature had a regulatory intent?

Mr. Roberts: I think that is--

Mr. Roberts: I... I thought that it was an additional step that you had to take if you... even if you find the legislature had the... the permitted intent.

Mr. Roberts: --I think it only makes sense if you view it as impeaching the intent because, as Chief Justice Warren pointed out in Trop v. Dulles, the evident purpose is controlling because the same sanction can be civil or criminal.

$10,000 civil penalty is not criminal.

A $10,000 fine is.

You don't look at the perspective of the individual because--

Mr. Roberts: So long as the legislature has a pure intent, it can have as burdensome a regulation as it wants based on previous criminal convictions?

Mr. Roberts: --I think if the regulation is so burdensome that it causes you to doubt the intent, then you do have a problem, but that is the purpose.

Mr. Roberts: You're not saying... you're saying if it's... it wouldn't violate the Ex Post Facto Clause in your view.

It might violate some other clause like the substantive due process.

Mr. Roberts: But again, with respect to both the Ex Post Facto Clause and the Due Process Clause, the question is whether there's a rational connection between the sanction and the legislative purpose.

Now, if it is too extreme, it may cause you to doubt that connection.

For example, it may be... the legislature may say we think safe crackers present a risk of recidivism, so we're going to cut off their hands.

There may be a rational connection there, but it's too excessive given the purpose.

There's no way in which this law can be regarded as too excessive.

It simply makes available information that is already a matter of public record, and publicly available because criminal trials under our system have to be public.

Thank you, Your Honor.

Chief Justice Rehnquist: Thank you, Mr. Roberts.

The case is submitted.


Thursday, June 21, 2012

Can Failure to register as a sex offender get expunged?


This question and answers come from an online "Ask a Lawyer" site.

Question by its Texas viewer:
As a minor I was charged with a aggravated sexual assault "this is not on my record" what is on my record is a failure to register as a sex offender. I was in the middle of moving houses and I didn't comply with my registration, is there anything I can do about the failure to register as a sex offender that is on my record? I would no longer have to register as a sex offender in 2013 because i was a minor when this happened.

Answer Lawyer-1:
If your Failure to Register charge resulted in a criminal conviction, you cannot expunge the arrest. Unfortunately, the conviction and the arrest will remain on your record. If the charge was dismissed or you were acquitted, you should speak with an attorney about getting an expunction of your arrest record on that charge. Good luck to you.

Answer Lawyer-2:
Unfortunately, you're not going to be able to get those records expunged if you were convicted or received any kind of felony probation, including deferred adjudication. I was prepared to answer that you wouldn't even qualify to have the records nondisclosed ("sealed"), because being required to register will normally make you in eligible. I went to look at the statute that says that so I could quote you the exact language, and now I'm not so sure about that. Here's the statute section that potentially disqualifies you:

Section 411.081 Texas Government Code

(e)...A person is not entitled to petition the court under Subsection (d) if the person was placed on the deferred adjudication community supervision for or has been previously convicted or placed on any other deferred adjudication for:

(1) an offense requiring registration as a sex offender under Chapter 62, Code of Criminal Procedure;

If you were adjudicated for a sexual assault case as a juvenile offender, rather than being handled as an adult, I believe you'd only be considered to be "convicted" if you ended up going to TYC or got certified as an adult. I could be wrong about that, and I'd have to look it up to be sure, but I think there may be a loophole there specifically because of it being a juvenile offense. I would imagine that the DA would probably oppose it, realistically, which would mean you'd have to have a contested hearing so the judge could decide 1) if my theory about your actually not having a sexual assault conviction is a valid way to look at the situation, and 2) whether it would be "in the best interest of justice" (which means the judge can do whatever seems right to them, and there's no way to appeal the decision). But given your lack of other options, I think a nondisclosure might be worth going after. Good luck.
Page cited from which may have more Answers

Reform Sex Offender Laws creates legal fund in response to murders of Gary Blanton and Jerry Ray in Washington State

OPINION: Press Release

Cambridge, MA -- Reform Sex Offender Laws (RSOL) Spurred on by the June 3 murders of two registered sex offenders, RSOL has created a legal fund dedicated to challenging the ever increasing restrictions imposed by legislatures throughout the United States. RSOL’s top priority will be attacking the expanding reach of sex offender registries because it is clear that these Internet websites have contributed to a steadily increasing number of murders of persons registered on that list.

RSOL’s Executive Director Brenda Jones pointed out that this is not the first incident where a person’s name being listed on Washington's sex offender registry has led to his murder. In 2005, two men on that registry were shot and killed in Bellingham by a vigilante who gained access to their home by posing as a law enforcement officer. Authorities investigating that shooting called it “one of the nation's most serious cases of vigilantism aimed at sex offenders.” (Seattle Times, August 30, 2005)

“Washington State expressed concern in 2005,” says Jones. “But what has the state done in the intervening years to prevent this from happening again? And what will they do now that two more registrants have been murdered at the hands of a vigilante using the sex offender registry as a tool?”

Clallam County prosecutor Deborah Kelly said in a recent court hearing that Patrick Drum, the self-proclaimed vigilante in the June 3 incident, had told investigators that he “planned to keep killing sex offenders until he was stopped.”

Gary Blanton's recent murder in Washington State left his young wife Leslie alone to raise their sons Gary, Jr. and Skylar, both under the age of three. The murder of Jerry Ray left his aging father alone with no assistance. News accounts have come in from as far as Maine showing that murders and other acts of vigilantism against registrants have occurred and are increasing. ***

“People on the registry are citizens, too,” Jones says. “The majority have completed serving their sentences. Their children, like Skylar and Gary Jr., are entitled to the same protection as any other citizen. They certainly do not deserve to have their parents marked as helpless targets for vigilantes.”

According to Jones, there is scant evidence that sex offender registries enhance public safety. “In fact, there is considerable evidence to the contrary. Public registration provides little more than a taxpayer-financed tool for vigilantes wishing to commit horrendous acts of vigilantism against registrants and places their innocent children in danger.”

RSOL believes that the full home address of registrants should be available only to law enforcement, not the general public. RSOL calls on Governor Gregoire to immediately issue an emergency order removing street addresses from the sex offender website. In addition, the Sex Offender Policy Board must commit itself to assuring the safety and well being not only of the men and women on its sex offender registry, but also the innocent family members of those registrants.

Reform Sex Offender Laws ( is a national organization with affiliates in 39 states. RSOL advocates for the civil, constitutional, and human rights of roughly 750,000 registrants on the public sexual offender registry, not to mention millions of their family members-- including their children.

Any legal case RSOL undertakes must deal with registration itself and potentially impact a significant number of similarly situated persons. With its limited resources, RSOL cannot undertake any case where an individual simply wishes to challenge his/her conviction.

Contact: Brenda Jones, Executive Director
Reform Sex Offender Laws
(443) 579-7765

Tuesday, June 19, 2012

Murders of Gary Blanton and Jerry Ray blamed on Sex Offender Registry

OPINION: Press Release

Cambridge, MA-- Reform Sex Offender Laws (RSOL) condemns in the strongest terms the recent murders of Gary Blanton and Jerry Ray by self-proclaimed vigilante Patrick Drum. According to Paul Shannon, Director of RSOL, "Washington State’s Sex Offender registry does not protect the public and in fact provides a taxpayer-financed tool for vigilantes wishing to commit murder and other horrendous acts of vigilantism.”

“Gary Blanton is not a rapist. He was only 17 years of age himself when he engaged in consensual sexual contact with a17-year-old girl he was dating,” Shannon said. The girl’s parents filed charges, however, citing that she could not give legal consent due to a handicapping condition. Gary’s death leaves his young wife Leslie alone to raise their sons Gary, Jr. and Skylar, both under the age of three.

“What is most troubling,” says Shannon, “is that this is not the first incident where a person’s name being listed on the public sex offender registry has led to his murder.” In 2005, two men who were on the Washington State Sex Offender Registry were shot and killed in Bellingham by a vigilante who gained access to their home by posing as a law enforcement officer. Authorities investigating that shooting called it “one of the nation's most serious cases of vigilantism aimed at sex offenders.” (Seattle Times, August 30, 2005)

The two men murdered in 2005 (Hank Eisses and Victor Vasques) were a “success story,” according to Kit Bail, the Department of Corrections field supervisor for Whatcom County. In an interview at the time, Bail said, “These guys were doing fine. They were employed. They were living according to the conditions.” She went on to state that the killings should “not be the basis on which we change the laws on registration, but if it is a vigilante act, it gives one pause.”

Examining the 2005 murders, John La Fond, an attorney who had opposed Washington’s public registration law on behalf of the American Civil Liberties Union, uncovered dozens of assaults and harassment incidents against sex offenders, including one case in 1993 where the house lived in by the family of a registrant was burned down just as he was moving back home. It is too late to save the four individuals who died in these carefully planned vigilante attacks, Shannon acknowledges, but he wonders, “How many must die before Washington acts?”

Shannon asks, “What has the state of Washington done during the intervening seven years to prevent this from happening again? RSOL is not aware of any action taken subsequent to the 2005 murders that would ameliorate the risk to registrants and their families. If they were concerned then, why was no action taken? And what will they do now that two more have been murdered at the hands of a vigilante?”

RSOL believes that the ultimate solution is that access to home addresses of registrants should be available only to law enforcement rather than the general public. While this dramatic change in policy would require legislative action, RSOL calls on Governor Gregoire to immediately issue an emergency order removing home addresses from the sex offender website. In addition, the Sex Offender Policy Board must commit itself to assuring the safety and well being not only of the men and women on its sex offender registry but also the family members of those registrants. Shannon says, “These people on the registry, and especially children such as Skylar and Gary Jr., are citizens entitled to equal protection the same as any other. They do not deserve to be made deliberate and helpless targets for vigilantes.”

June 18, 2012
Contact: Paul Shannon

Sunday, June 17, 2012

Do you believe Tiers and Levels have the same meaning and purpose?

TRUTH: No, Proof follows:

No, tiers and levels have different meanings and serve different purposes.

Traditional Risk Assessments:
Compared to clinical methods, actuarial risk instruments are a preferred method to discern sex offenders risk for sexual as well as violent recidivism because, unlike clinical practices, they are considered inexpensive, objective and modestly accurate. Scientists argue that risk instruments that employ only static, or historic measures of offender characteristics, rather than dynamic, are certainly sufficient for the purposes of gauging individuals’ likelihood of recidivism. See Sex Offender Risk Assessment Institute of Public Policy Truman School of Public Affairs University of Missouri – Columbia

Risk assessment systems result in defining "Levels" of risk:
Level 1 (low risk of repeat offense), or

Level 2 (moderate risk of repeat offense), or

Level 3 (high risk of repeat offense and a threat to public safety exists).
See NY Risk Level & Designation Determination
All traditional risk assessment systems will use words like, risk, assessment, dangerousness, recidivism etc. which defines their intended purpose. The result of these assessments are levels of risk likelihood of recidivism, clearly defined.

However, under the Adam Walsh Act we find something never before heard of in history. A tier assignment system, a wolf in sheep's clothing, without any stated intent of risk assessment, in fact, its stated intent is otherwise.

SORNA's Tier Assignment System (TAS): Everything you thought you knew is about to change, truths revealed, this is an expose of its real -but hidden- purpose. It is cunning, devious, cruel, and genius at the same time; its real purpose is not what it seems.

SORNA does not use these words "classification, risk, dangerousness, punishment or 'offense based'" in its discussion of tiers! Accordingly, tier assignment purpose has to be other than flagging registrants as dangerous or a risk. Right?
In SORNA it clearly says, tier assignment is used to inform registrants when they are required to verify their information, in person(42 USC 16915(a)), and their term of registration (42 USC 16916).

So why does the public need to know something, whose only purpose is, to tell registrants when to do their verification and for how long? Registrants' tier levels have no public safety value?
Public Perception of Tiers: There is no doubt the SORNA/TAS system is a risk based classification system of a devious kind, a wolf in sheep's clothing, resulting in a dangerousness rating, even though certain words are purposely omitted from SORNA discussion on tiers. Historically the public has been primed to believe "Levels" meant levels of dangerousness, because of states that have/had traditional risk assessment systems (which arrive at dangerousness levels of 1-2-3, meaning likelihood of re-offense). Now with the coming of SORNA/TAS tiers and all the political and media hype, tiers are now believed to have the same meaning and purpose as levels. Levels 1-2-3 = Tiers I-II-II.
In a recent news article Target 8 News had this to say:

"One of ___' rape victims says he's dangerous and belongs on the list as a predator, though she'd rather see his name in an obituary. But there is nothing on the registry that actually says Tier 3 is the most dangerous. That's something you have to figure out for yourself." "Michigan sex offender tiers confusing" (5-8-12 by Ken Kolker)
Here we see a law firm believing -tiers mean dangerousness-:

Michigan law calls for sex offenders to be registered in three tiers, based on the crime committed, their risk of reoffending and their perceived danger to the public. For example, Level 1 offenders have a low risk of committing future crimes and pose a minimal public safety risk. Each tier has different requirements, particularly concerning registration and reporting.

All offenders must report, in person, to law enforcement officers on a scheduled basis. Level 3 offenders have the most rigorous reporting schedule. They must report during the first 15 days of the months of October, July, April and January in order to confirm their addresses. Level 2 offenders must report in January and July, while Level 1 offenders must report once a year in January.

Offenders convicted of a Level 3 offense are required to register as a sex offender for the rest of their lives. Level 2 offenders must register for 25 years, and Level 1 for 15 years. Registry Reporting Requirements for Michigan Sex Offenders (6-17-12 by Garton & Vogt, P.C.)
SORNA/TAS does not command lawmakers or others to explain the real meaning and purpose of Tiers, as it is written into SORNA (a system of notifying registrants when they are to report to verify their information (42 USC 16915(a)), and their term of registration (42 USC 16916)).
Absent from SORNA is any command to show the tier level on the public registry, in fact, SORNA only requires "The jurisdiction shall maintain the Internet site in a manner that will permit the public to obtain relevant information for each sex offender ..." 42 USC 16918(a) and as to the National Sex Offender public registry "The Website shall allow the public to obtain relevant information for each sex offender ..." 42 USC 16920(b).
Given the SORNA stated purpose of "tiers" why is that information not exempted from the public registry? It is quite apparent that Lawmakers want the public misconstruction to continue. Why?
Because it suits the hidden purpose of further punishing registrants, by the community where registrants live, work and go to school, without lawmakers saying, that is what TAS was designed to do. Think about it, why does the public need to know about tiers, if their purpose pertains only to something the registrant needs to do at specified times?
And, until you fully analyze SORNA/TAS and its -intended effects- you will not see this subtle and onerous gotcha system. The gotcha is, that, Lawmakers through TAS do not inflict further punishment, TAS is DESIGNED so that registrants are further punished by the community where registrants live, work and go to school. It took genius (many legal minds) to design this gotcha system, and TAS also effectively TAKES AWAY from registrants, and public view, registrants' efforts at rehabilitation during serving of their sentences. This places registrants in a PERPETUAL FALSE LIGHT before the public eye, many for the rest of their lives; if that isn't further punishment, nothing is.

Tiers and levels have different meanings and purpose, need more be said...

For now have a great day and a better tomorrow.