By Robin . . . Stating that the Sixth Circuit Court of Appeals had applied the correct legal framework as well as the correct legal standard in reaching its unanimous opinion in the Does v. Snyder case, in his brief on behalf of the United States, the Solicitor General, Jeffrey B. Wall, is urging the U.S. Supreme Court not to grant Michigan’s Petition for a Writ of Certiorari. The Solicitor General further argued that federal SORNA requirements do not require the states to enact any of the punitive and “problematic” aspects of Michigan’s post-2006 amendments that were cited by the Sixth Circuit’s opinion:
Because SORNA does not require States to enact statutory provisions paralleling those the court of appeals identified as problematic, it is doubtful that complying with the court of appeals’ decision will imperil Michigan’s eligibility for SORNA related funds—particularly if the legislature amends the relevant provisions of SORA to address the court of appeals’ concerns while satisfying the floor imposed by SORNA.
The Sixth Circuit Court of Appeals held in August, 2016, that Michigan’s enhancements to its basic registration requirements were unconstitutional in violation of the Ex Post Facto clause and did so within the framework set forth by the Supreme Court’s 2003 Smith v. Doe opinion in a challenge to Alaska’s sex offender registration requirements.
The Solicitor General also concludes that the Sixth Circuit’s Does v. Snyder decision does not conflict with Smith v. Doe.
No conflict exists between the decision in Smith, which considered the aggregate effects of a law containing a different combination of features, and the decision below. The court of appeals acknowledged some overlap between the two statutory schemes, but explained that it found Michigan’s law to be “altogether different from and more troubling than Alaska’s first-generation registry law.” [] Unlike SORA, Alaska’s law did not establish school-safety zones, did not publish a sex offender’s tier classification, and did not require in-person appearances to update information such as temporary residence and e-mail address.
It is far too early to assess the advantages and disadvantages of the Solicitor General’s brief on behalf of the United States government. And the Supreme Court may yet decide to grant the Petition even despite the Solicitor General’s recommendation that it be denied.
Stand by for further analysis of what this recommendation may mean in the long term.
As vice chair of NARSOL, Robin is the managing editor of the Digest, director of development, and provides assistance to the webmaster in keeping our websites running smoothly. He also serves as founder and president of Vivante Espero, NARSOL’s 501(c)(3) foundation and legal fund.
This is their way of sticking up for federal law as is today and possibly making the other Courts of Appeals work on it before it gets to be presented again to SCOTUS for hearing should SCOTUS deny the petition (maybe even after Justice Kennedy has retired and a new SCOTUS Justice is in play which would mean the USG’s playing prevent defense in the meantime until such time).
You can certainly see where SCOTUS would have expected this reaction from the SG. You can also see where, given Packingham and the acknowledgement of misleading data, the misleading data in this SG document would lead SCOTUS to hear it anyway. You cannot back away from that misleading data point now since you just announced it is misleading and continuing to give punishment out after all is said and done with sentencing. Justice Kagan was a SG once and would understand this perspective all too well. I bet the SG document went under some serious revisions post-Packingham decision.
I pray SCOTUS still hears Doe v Snyder to clear the air of any ambiguity.
The circling of the wagon has begun! Of COURSE they want to protect this corrupt status quo AND the millions of security theater jobs the AWA and Megan’s Law have created over the past 23 years.
This are going to get UGLY if SCOTUS is indifferent and dismissive of Snyder.
The SG knows fully well that the Snyder challenge could be the beginning of the end for the registry, also.
if they don’t accept this case I see several states repealing a bunch of laws and losing the fed gov. hit list bribe money as it would be way to costly for states to go back and look at each case and see what set of unconstitional laws one would should be under.
I find it interesting that the brief basically argues the case (without a counter argument) to petition for denial of certiorari. In my opinion, this brief actually makes the case FOR certiorari because it contends in many points that there is wide disagreement of whether this case would apply to other states’ SORNA schemes. That is precisely why the Supreme Court should take the case; when there is disagreement among lower courts and legislatures. The court needs to resolve disagreement in a number of areas, mainly:
1) Whether in-person reporting constitutes an affirmative restraint. Either it does or it doesn’t. The frequency a registrant must report should be irrelevant
2) Whether public notification constitutes punishment. It’s irrelevant whether the tier class or the photo of the offender is public or not. The broader question is a matter of disagreement and needs to be resolved
3) Whether range restrictions of any sort as a whole pass the test brought forth in Smith. Almost every state has range restrictions of some sort; some more restrictive than others and this has been widely disagreed on across jurisdictions. Many localities have city ordinances that go beyond state law as well
4) Whether the test in Smith was improperly administered in light of new evidence showing more weight to significant factors
I believe that Justice Kennedy’s opinion in Packingham recognized these problems in his parenthetical statement and is inviting this case or one similar to be granted cert. Since 4 other justices joined his opinion, it’s safe to assume that they were joining in that invitation.
Lastly, the court must recognize any time they are reviewing a petition for certiorari whether it will prevent further litigation in the lower courts and further requests for certiorari or not. In this case, I think it’s a no-brainer that if they resolve this question now, it will silence most litigation. There is a high possibility that states and local jurisdictions will attempt to find ways around a decision in this case though.
This is the case we have all been impatiently waiting for! It’s time!
In my opinion though, the entire fight is not completely over if we get the preferred decision in this case. When it comes to housing and jobs, many still conduct bg checks and when our histories come to light, the problems there still exist. While this fight would be more along the lines of convicted felons in general, I believe it should be brought up to the court that bg checks are unconstitutional based on the 8th and 9th amendments to the constitution. The same test in Smith should be applied. I would accept a bg check scheme that
1) has a time limit measured from the release from incarceration rather than conviction date. This measurement is necessary to ensure the time limit is effective because if the time limit is ten years and the measurement is time from offense. A person who just spent ten years in prison could get out without having to worry about a bg check. Inversely, a person who only gets probation would have to deal with bg checks for the next ten years. This doesn’t seem appropriate and is likely why they started asking if you EVER have been convicted. I would agree with a scheme that incorporated both and took the later of the two though.
2) has categorical checks that apply to the employers business (such as SO offense, theft offense, violent offense, etc.) This should be conducted by the bg check agency and labelled on the application for employment. Once the bg check is conducted, the agency only submits to the employer offenses that match the question on the application. The reason for this is because it is a legitimate concern not to have someone convicted of theft working at a bank or an SO convicted of an offense involving children working at a school. It is not legitimate to refuse a job at a factory or production facility that has no children present to said SO, nor is it legitimate to refuse a former thief a job in which there is security and the person is not handling money.
3) removed the ability of landlords and property managers to conduct bg checks. There is no legitimate reason for this.
4) Allow for waivers on a case by case basis. For instance, it’s a legitimate interest to prevent anyone convicted of a crime in law enforcement. Licensing professions should still conduct review boards for character flaws as they do now.
Hos is it still possible for them not to accept that all the false data in the 2003 decision. This decision is the bases for all the current sex offender Laws. Could it be that if SCOTUS Validates the Michigan Ruling Then the registry would legally fall into shambles?
The SO registry and all that goes with it is nothing more than a money making scheme. It’s complete madness.
I think it unfair for SCOTUS to only seek advice from the SG, the very same SG that could argue cases for the government before the court, before they decide to grant cert. If so then the lawyers for the Does should be able to put their two cents worth in too.
Most of us know damn good and well that the SG is not going to advise something of this magnitude in our behalf. We MUST keep this in the medias attention, however and whenever, and not let it slide into oblivion. This single case could quite possibly be the one that cracks the whole convoluted mess into pieces that even “all the king’s horses and all the king’s men cannot put together again.”
SCOTUS asked for the SG’s opinion because Michigan’s arguments in favor of the petition suggested that there was a conflict of law (federal versus state). This was done as a courtesy to the United States government and in order to get another perspective on Michigan’s assertions. The Does attorneys already had their opportunity to make arguments against the petition. When considering the Supreme Court, as an independent branch of government that is not intended to be a deliberative body, it’s important to understand that it operates according to its customs. What the SG has stated in his brief is certainly not harmful to registered citizens. In sum, he appears to believe that the Sixth Circuit applied the right legal reasoning to Does v. Snyder. Consequently, in his opinion, the High Court should not grant the petition because there is nothing for it to resolve. That is good news. Not bad news.
I disagree that this is a good thing, this is a strategic move on the sgs part to prevent the damage from trickling into awa territory and to limit the results to the 6th circuit.
The Sixth Circuit’s opinion is solid and will be hard to contain. It’s surely to have an affect on other Circuits as they are asked to consider similar claims. NARSOL’s lawsuit in North Carolina (which will inevitably find its way to the Fourth Circuit) is much stronger because of the Sixth Circuit case. We don’t want it disturbed. This is a classic “bird in the hand versus two in the tree” scenario. It’s rank speculation that the Supreme Court would actually sustain the Sixth Circuit. Indeed, IF the Supreme Court grants cert it would more likely be for the purpose of reversing the Sixth Circuit, not to sustain it. The Supreme Court hardly ever grants cert in order to sustain a lower court’s decision UNLESS there is a split among the Circuits. Right now, there is no split. Good legal analysis (according to most of the attorneys with whom we have discussed the matter) dictates that we should not be hoping for the Court to grant cert. If the Court does, we are likely to be set back many years in this movement.
Robin, do you have a link to the potential fourth circuit case you just referred to?
Hard to provide a link to it unless you have a Pacer account. But the style of the case is NARSOL v. Stein and the case number is 1:17-cv-53. It was filed in the Middle District federal Court (North Carolina) in January. On June 20, motions from both parties were placed in front of Judge Loretta C. Biggs. We expect a hearing to be called next.
I think I can speak for all Texas registrants who’s case came years before the enactment of Texas’ SO laws (my case came 13 years prior) when I say that the most important thing we want to see is SCOTUS ruling that the registration requirement applied to people who’s conviction came before the enactment of their particular state’s SO laws violate EX POST FACTO! If they can find the guts to rule this way I can die happy man because I am indeed “In Search of Liberty”.
I dont understand any of this. Is this news good or bad?
It’s good news insofar as the federal government is essentially agreeing that the Sixth Circuit “got it right” in the Does v. Snyder case. It’s bad news if you really want the Supreme Court to take the case. Were you to ask the attorneys who represented the Does, they would say it’s GREAT news….because they won. And they really don’t want to see the Supreme Court alter the outcome. God only knows what the High Court would actually decide in the end. Even despite the overwhelmingly positive outcome in Packingham, Does v. Snyder is not so simple a question.
If SCOTUS declines to hear Snyder, what does that mean for those of us who do not live in the 6th circuit? I live in the 11th where the court is loaded with Bible thumping so called Christians.
It doesn’t mean anything, immediately. But it would mean that the Sixth Circuit’s opinion was left standing by the Supreme Court. Therefore, it becomes a highly influential (persuasive) case for other Circuit Courts. The important thing to know right now is that the Supreme Court is out of session until October. So nothing is going to happen until mid Fall…and the Court could decide to conference about the Snyder case several more times before deciding yes or no on granting the Petition. We just cut bait until then.
The Supreme Court did not grant a stay to the law, as the state requested. The 6th Circuit Court instructed the District Court judge to issue a new ruling in par with their decision way back in August 2016. However, the state is still enforcing this law that the 6th ruled unconstitutional. What is up with that?
What would happen if thousands of SO’s got together, and each one put in a certain amount of money, would we be able to hire out an awesome lawyer to help fight this cause
Well, NARSOL seems like a good start down that road. I would think the effort would take millions. What about supporting an alternative Registry that didn’t have the intent to shame and isolate perpetrators through pubilc/work disclosure?
“Jeffrey B. Wall, is urging the U.S. Supreme Court not to grant Michigan’s Petition for a Writ of Certiorari.” Why is anyone aloud to urge the SCOTUS not to grant anything while not in session? If the SCOTUS lets any outside opinions sway their decision they have failed at their job!
1) SCOTUS allows groups, organizations and individuals to submit amicus briefs in support of or against the petitioner. It happens in pretty much every case before the court. IMO, they are rarely swayed one way or the other by amicus briefs, but they may provide a viewpoint from which the justices or their clerks have not considered the case.
2) In cases against states that have bearing on federal law (which Snyder certainly does, in many facets) SCOTUS will usually invite the solicitor general’s office to file an opinion. This case is not unusual in that regard, and it should not be taken as anything relevant to the case being specifically about sex offender registries.
3) Although I think most would agree that the SG’s office is taking a position we didn’t see coming, it is clear that their opposition to SCOTUS hearing the case is a strategic move intended to keep the registries in place. I personally feel that the feds are starting to see the writing on the wall and that SCOTUS could very well rule against MIchigan’s scheme and in effect render registries in their current form very dangerously close to unconstitutional. I still believe the justices will opt to take up the case. If the court make-up stays as it is through next term, I can see a 5-4 victory for the Does, and everyone on the registry.
Hopefully this will go well for those of us who are on the registry. The current rules and regulations are restrictive enough. To the point that many find it hard to live a normal life. It’s time for the light to shine on this injustice. And I am thankful for those are in and getting in on this fight.
By SG Wall’s reasoning, he feels that if the case is not accepted, and if Michigan reverts to the standards put out by Smith v. Doe, then the court conditions would be resolved. The problem with that reasoning is that Smith v Doe would eliminate all restriction zones, all employment restrictions, all travel restrictions, even the need to actually show up at the police station but send in a registration card in a manner reminiscent of a pleasant Tuesday morning filling out a Price Club application.
Don’t see that happening. This case will be heard by SCOTUS, or Michigan’s gonna have to do a whole lot of ‘splainin’ to the population.
The Court would likely only grant cert to reverse. There is no reason to grant cert if the Court believes that the Sixth Circuit got it right. The Court’s docket is far too full to waste time affirming a correct decision. And the Court could care less how much trouble the correct legal and constitutional outcome happens to cause Michigan. School integration was no walk in the park during the 60’s and 70’s, but that wasn’t justification for the Court to back away from “with all deliberate speed.”
Some justices at SCOTUS may even take this opportunity to attack Smith V. Doe through the Snyder case by granting cert. Maybe set an example as a: ” I told you so ”
It only takes 4 judges to grant cert. Two of the Smith dissenting judges are still on panel, I can see Kagan jumping on board since she is the justice assigned to the 6th court of appeals, Sotomayor may do so as well, Kennedy is disturbed by the fact that people are being punished post sentence, and Gorsuch doesn’t like the government having excessive regulatory powers as he dissented in U.S v. Nichols referencing sorna. He may well want to take jabs at the government’s regulatory sorna scheme in there as well, as a second round bout to U.S v. Nichols.
Could that be possible ?
Well, again, anything is possible. But I believe it’s simply a question of logic. IS the ruling below correct? Don’t disturb it. Is the ruling below a problem? Disturb it. The Court isn’t going to grant cert if it believes the Sixth Circuit applied the correct legal analysis. Historically, the Court settles disputes among the Circuits. If doesn’t set precedence by pointing to a Circuit decision and saying “See y’all?? Look at this. This Court here has it right!” That’s not the way it works.
So..I stand by the logic. IF the Court grants cert, it’s NOT to sustain. It would be to reverse…at least in substantive part. That would not be a victory for our cause.
There was no reply option to your reply of my post so I replied to you on this one. Indeed anything is possible and I see your point and I agree. But the precedence the court may take to prove a point as you stated ” see y’all they got it right ” that was not what I was getting at. What I meant was, can the court take on Snyder to overturn Smith if some of them feel they need to do so ? That is what I simply meant. They have overturn themselves before and may feel they need to do so or get at that opportunity this time around. Not for Snyder alone but for Smith as well. Is that even possible ?
I really don’t see how that’s legally possible. Smith is not in play here except as the platform used for Snyder. In fact, Smith is helpful to the Snyder outcome. What the Sixth Circuit essentially said is what most of us have been saying for a long time: Smith doesn’t support restrictions on movement, residency, or access to the common implements of free living. Smith answers a very narrow question from Alaska. Can a state require people who have been convicted of an offense to register their names and addresses? Smith says YES! Smith says yes AFTER the Court determines that the Alaska statute imposes none of the burdens that would trigger a stricter analysis. The Sixth Circuit ruling re-establishes the parameters set forth by Smith. It makes everything status quo ante. So everything sort of goes back to how it was in 2003.
Got it. Thank you.
The only other way I could see the scotus taking this case to reaffirm would be to squash all these cases that are repeatedly popping up in writs over and over because state legislators see the need to constantly make unconsitutional laws based on conjecture. That would certainly stop much and reverse all these add on laws that usually increase crime due to instability not help to curb it.
That would free the court from having to hear many of the cases that are coming up through the system currently, and there are many. I imagine the scotus is aware of some of these other lawsuits that will most likely be appealed to the supreme court so they have an opportunity to address them now if they desire. I am with Robin though, unless its for what I mentioned above, we dont want the scotus getting involved.
I agree with you on this point. I have read many Supreme Court decisions to understand how their process works. I also recently read their guidelines for granting cert on their website.
The court basically looks at three possible issues when deciding whether to grant cert: 1) Did the lower court improperly apply the legal standard? In other words, did they get it wrong? 2) Are there other cases in other states that have a different result in the lower courts 3) Will this case affect federal law?
While point number 1 is not a valid reason in this case, points 2 and 3 definitely are. There are multiple federal and state cases, some of which are resolved and some still pending, that have wide disagreements on what parts of a registry law are constitutional and what parts are not. Furthermore, on point 3, this affects the AWA significantly as the 6th circuit’s ruling effectively made the AWA unconstitutional in its present form. Michigan is now unable to comply with the AWA due to a federal court decision. This is a big deal and presumably the same reason the court granted cert on Trump’s Executive Order concerning the travel ban.
In my personal opinion, the court is also likely to look at the congestion of the courts in this matter. There has been and continues to be multiple fights brought in court concerning the registry. This ties up the courts’ dockets. The Supreme Court may see a need to resolve this problem once and for all to eliminate or severely reduce these constitutional challenges. If the court fails to grant cert, more cases similar to this one will end up petitioning for cert. It would be logical for the court to resolve this issue now rather than wait.
Having lower courts continue to use the 6th circuit’s precedent in every jurisdiction as arguments are presented is effectively allowing the laws to stand against precedent until a challenge is brought. That’s not how our judicial system is supposed to work.
After reading the actual decision in this case from the 6th circuit, I actually agree with avoiding the Supreme Court on this one. There is likely a better case being brought up that would have far more reaching effects.
The decision stops its judgment after it declares that the SORA is punitive as it applies to Michigan. This stopped the legislature because it effectively makes the plaintiffs no longer a party to the other issues brought up and therefore unable to fight them because the ex post facto decision takes them completely off of the registry. As the decision points out, this has been happening all over the country. My state of Indiana declared it punitive in 2009 with Wallace v. State of Indiana. Since my conviction was in 2010, it doesn’t really apply to me unless Indiana tries to make it worse. This is true for thousands of registrants in the country who had later convictions.
At this point, for proper SCOTUS review, we need a case to bring up the 8th amendment first and foremost using the language that compares registration to probation/parole, but I feel the argument that would have even greater weight is an argument stating it’s a bill of attainder. This is one argument I have yet to see in our courts. The argument that is presented to SCOTUS should also declare the AWA and the IML unconstitutional as well. Packingham brings up the argument of first amendment rights as well since Kennedy used the word “parks” when speaking about protected activities.
I found the 4th circuit brief from the petitioner Robin was referring to earlier as well. This seems like a case ripe for a SCOTUS challenge because it challenges the registry on many aspects as a whole. I do wish that it brought up the eighth amendment and the bill of attainder though.
Link: https://www.ncrsol.org/wp-content/uploads/2017/01/1-Complaint.pdf
Jeremy, the complaint you are citing is before the Middle District Court (NC). It is not before the Fourth Circuit at this point. It will end up there, of course, because either losing party will take it there. But right now, it’s still in the very early stages of litigation. The Eighth Amendment argument was not made because it would be summarily dismissed and we don’t want to make the mistake of polluting the case with claims that we know cannot be advanced. There are already a number of “throw away” claims in the complaint. That’s by design.
My only wonder on this is when will Federal law be tackled on this issue (just as you have noted)? They are states issues, but Federal law needs to be addressed also.
Just so you all know, the 5th Circuit Court of Appeals (considered the most conservative appeals court in the country) ruled residency restrictions are constitutional in a case from Texas even if applied expo facto. So two different appeals court have ruled opposite opinions. The attorney in this case will be petitioning (if not already has done so) the supreme court since two appeals courts have issued two different opinions.
Interesting rebuttal arguments you present throughout this thread Robin. Slowly changing my mind. So, instead of getting one knockout punch on registry etc via SCOTUS, it may take many body blows to undo it across the various circuit courts.
Many understandable folks want a knockout punch, but if it upsets the apple cart only to set things back…..hmmm
Question is will the registry ever go away or minimized enough for those requiring such actions through enough court filings?
My frank opinion is that defeating registration itself will require a new legal strategy. Successfully attacking the basic requirement to register will mean that courts have accepted the idea that registration is extremely harmful and damaging to the individuals who are forced to register. I don’t believe the courts are ready to acknowledge that yet. And I personally believe that this eventuality is more likely to “sound” in an Eighth Amendment “evolving standards of decency” claim ONLY after enough courts are on record in various other cases suggesting that there is a punitive aspect to registration itself. And I have seen such language pop up in dicta here and there.
I guess it is one apple at a time. This will initially be a precursor to undoing the registry all together ? That is my whole issue with registering. I can understand having to register with the county that pertains to me while I serve a court ordered probation sentence, heck, Even the Dept. of corrections of the State in which I’m from, has a public website where you can search for offenders in your area based even on criminal offense that are currently serving a sentence. Once you’re done with your probation sentence, you are no longer searchable in their data base. I finished my sentence quite a while ago, but I have to continue to register with not only 1 police agency(county) but another one as well(city) where they just take my photo. I have long finished my sentence, but still feel like I’m serving another probation sentence for life.
For the sake of argument, let’s say scotus hears Does v Snyder and strikes down much of its requirements. That then becomes law of the land. What prevents Bubba Leroy Justice, Sheriff of Jeffersonian County Alabama from arresting an offender for violating a provision that was struck down? There never seems to be any accountability to officials breaking the rules.
Keep in mind, once again, that the high court “affirms” (leaves alone) the Sixth Circuit’s opinion by denying the petition. If the Court grants the petition, it sees something it doesn’t like. Most everything about the Sixth Circuit’s opinion is likable if you’re a registered citizen. So why would we want it disturbed by the high court?
In response to your second question: there is nothing to stop Bubba Justice from arresting anyone under any “reasonably articulable suspicion” of having committed an offense. But I think you overstate your case when you say that nobody is held accountable for breaking the rules. That’s really not an accurate depiction. Very few judges are going to risk being disrobed or sanctioned by deliberately ignoring clearly established case law. But that’s the whole reason we have a judiciary…to keep check on the other two branches of government. So if Bubba hauls someone into court under on an unconstitutional charge, the judge is going to dismiss the charge. If the judge gets it wrong and ends up convicting, then the case goes to the appellate level where additional judges have an opportunity to reverse the outcome in view of the lower judge’s “plain error.”
OK, I’m one of those who was hoping SCOTUS would take this on and deal a major blow to registries, but now I also see what you are saying, Robin.
I guess my real reason for thinking it would be good for them to grant cert is that perhaps the justices, Kennedy among them, have since realized that they decided Smith with 1) grossly over-generalized falsehoods and 2) incorrect assumptions about the registries effectiveness. It seemed that this case would finally allow them to correct the issue. It wouldn’t be the first time the Supreme Court has corrected an earlier error.
Sometimes I spend too much time in Sweet Dream Land. *sigh*
haha, well don’t let me disturb your sleep! Dream on. I think what you posit would be great. I’d love nothing more than to see the Court correct its own misgivings. But I’m just looking at this from a legally pragmatic perspective. And I feel pretty comfortable suggesting that the Court likely wants to see more disagreement in order to make a resolution. Someone earlier mentioned the outcome of the Fifth Circuit case (Atty. Richard Gladden’s case). We have watched that case very closely. And we were a bit shocked at the outcome since it appeared to be a very strong case going forward. So, here’s a possibility. The Court sits on Snyder as it awaits the arrival of Gladden’s Petition out of the Fifth. Then there is possibly some real conflict to resolve. I don’t know. And this is crazy speculation at this time. Still, when it comes to the Supreme Court, crazy speculation seems more appropriate than anything else.
Even though I don’t advocate uprooting your family and moving to escape the problem, I often see questions from registrants or their family members in regards to the states with the most lax S.O. registry laws. It’s a hard question to answer, and I would recommend they stay where they are and keep fighting for change, as even a state with more lax laws could eventually enact harsher laws. So moving could become a very bad decision. However, if the Supreme Court does indeed deny Cert to Michigan, and someone is sure they want to move, any state within the 6th Circuit’s jurisdiction just might be an ideal place to relocate.
For RWVNRAL, Two questions: 1) as to the Alaska case, i.e., Smith v. Doe, did not the Alaska Supreme Court come back and rule that state’s SO registry unconstitutional after the Smith decision? 2) see Smith v Doe U.S. @ 87, 100 & 101. The court said: “…The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releases, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision. While registrants must inform the authorities after they change their facial features, borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so…” Ok, so, in the Country of Texas this is the exact situation we have with the state’s SO registration. It is supervised release. An RSO is required to report in person either quarterly or annually. You must have permission to move into a residence, permission to work certain jobs, report your auto, etc., all against what SCOTUS held in Smith. In Texas, there is no deference between regular parole rules and sex offender rules—they are both the same. If you are on a regular parole like for murderers, robbers, burglars, drug dealers etc., there is no reporting of your address, work, auto, residence change, etc., so my question is how does TX’s SO laws square with what SCOTUS held in Smith v Doe pages 87, 100 & 101?
“While registrants must inform the authorities after they change their facial features, borrow a car, or seek psychiatric treatment, they are not required to seek permission to do so…”
Why are we EVER required to ask permission? Probation is a waste of tax payer money. If you get 3 yrs of probation, if you get 6 months of probation, if you get ANY amount of probation, the IDEA in the mind of the court, probation dept AND the public (thanks to the aforementioned) is that you are dangerous to society for THAT specific length of time. HORSESH*T!
I just met with my P.O. today as I have to only once per month now and I just LOVE when they ask “So how’s everything going?”
Are you kidding me? How’s my miserable life with my miserable job (that you approved) and the miserable ROOMING HOUSE I have to live in (which you also had to approve)? Oh, just dandy! Please don’t ever release me from probation. I love this sh*t.
Sorry, In Search of Liberty, I know that’s off topic from what you asked but I guess I’m “triggered” by the mention of “supervised release” because if we’re NOT actually INCARCERATED, we should not have to be on any “supervised release” which comes to an end anyway and then they don’t care what we do. But until next year in September, I can’t even shop at a mall. ABSURD!!
After September, I can shop anywhere I want. How does that fit in with their scripted narrative of “If you go to a mall and there’s a young high school aged girl there in tight little shorts….”
Yeah and? Same scenario can happen AFTER probation. Duh.
What appears on pages 87, 100, and 101 (and throughout most opinions of every court) are what we call “dicta.” It’s part of the analysis of the case as the law is interpreted in view of the facts. Dicta is not holding. And while it’s very important to understand how the Court arrived at its holding, the dicta that is expressed along the way is NOT legally binding. As you read these pages, you see the majority is obviously parsing out how the then Alaska registration scheme didn’t require a registered person to do this or that, and therefore, in its conclusion of the matter (the holding), the Court finds that the essential requirements are not onerous or burdensome….and consequently not unconstitutional. You are RIGHT to see these important tidbits of understanding as incredibly useful in presuming how the Court might regard a registration scheme that DID require all the onerous and burdensome things it did not find in the Alaska registration requirements. So, it’s certainly probative language. But it IS NOT binding language. Only the holding of the Court is law. Not the words that were used to arrive at it. I hope this is helpful.
This reply here Robin helps immensely put into context your reply below where you use “dicta” in a reply on taking the registry out altogether (July 12, 2017 at 11:51 am).
Just need more courts to agree it is not regulatory, but actually has a punishment aspect to it as you say where some have already.
In Search of Liberty, in my case here in Texas, actually being off probation demands more restrictions of me than when I was on probation. Late in my probation, my probation conditions were changed (and signed by the judge) where I was able go anywhere I wanted as long as I had no intention of making contact with a minor. Now, starting 09/01, in a few local small cities, I will be completely banished from even setting foot in the city limits after the proximity/residency restrictions are adopted. Several local cities stated they will adopt these restrictions. So I have more restrictions off probation than on probation. Talk about a violation of my constitutional rights…
The endless stories of all this registry madness just rends the heart. It is incomprehensible that this is happening in the USA! Truly “the old gray mare ain’t what she used to be!”
I am not sure you are serious.
The USA has always had a group of people to oppress. Our plight hardly compares to what the Native American tribes had to endure, or the slaves of the pre-civil war era. Even the African Americans of the post civil war era to civil rights era can show evidence of much harsher treatment than what we are going through. We can compare ourselves to that when men in white sheets come knocking on our doors at night.
America is actually doing better now in this area concerning civil rights, but it is still inexcusable, especially in this modern time, that registry laws are being used on a whole class of people. Have we learned nothing from history?
FRED,
In part, that is my point. This is supposed to be the nation that has overcome past “demons” to move beyond the oppressing of it’s citizens. We lead the fight in human rights (?), yet our citizens are some of the most incarcerated in the world. We call ourselves a new breed…but the fact is we are riding the same old mare! As an old preacher used to say, “if we have learned anything from history, it’s that we haven’t learned anything from history.” I stand by my statement that the current registry laws are “heart rending.” Personally, I cannot help but feel a profound sadness that still today there is such a tolerance for oppression…and perhaps it is even more vehement now.
I thought that is what you might had been getting at. I agree. The U.S. is a nation of hypocrites, blinded by American exceptionalism. We are getting better, but we still have a ways to go. It is a struggle to remain patient though, it’s 2017…CMON!
Florida tries to out-do every other state in terms of how miserable law enforcement tries to make the lives of registered men and women a living hell! IF the SCOTUS decides to hear the case, I wonder if there will be an amicus curai who can somehow incorporate what has come out since SCOTUS ruled on Alaska’s Doe v Smith, in that the so-called ‘statistic’ the Feds used to convince SCOTUS that registered people are ‘danagerous and a high risk of reoffending’ was literanlly taken out of context, even according to the very man who wrote that statistic years earlier and admitted it did not mean what the Feds twisted minds said it did.
DOJ urges SCOTUS not to review Sixth Circuit panel decision finding retroactive application of Michigan sex offender law unconstitutional.
Now that the Solictor General has urged SCOTUS not to review; is there a timeline for the court to make a decision to review or not to review? The original date was back in March; which is now past.
The Chief Justice generally sets the Court’s flow of traffic. So, it’s entirely up to him. The Supreme Court is not bound by any time constraints. It can move as fast or as slow as it prefers.
Does anyone have an opinion as to how SCOTUS may consider the PA Supreme Court’s ruling that relieved three defendants of SORNA compliance who were required to register under Megan’s Law? The court said defendants were entitled to only those laws applicable to their cases when their pleas were accepted by the court. Doesn’t this bolster the “congress shall pass no law abridging contracts” along with Michigan’s ex-post-facto ruling?
The Supreme Court is not likely to consider it at all. The Court will consider only the questions presented related to the specific case and controversy we all call Snyder. The Court will be bound by its own stare decisis in assessing how to rule on the Snyder case IF (And I regard that as a huge IF right now) the petition for cert is granted. As persuasive authority goes, the high Court is least likely to be impressed by the outcome of a state supreme court decision.
Good read here on what SCOTUS is doing and not doing
Sex offender consequences in the Supreme Court – what’s ahead?
http://ccresourcecenter.org/2017/07/18/the-supreme-courts-mixed-signals-in-packingham/
I was reading the solicitor general’s recommendation not to grant certiorari.
Kennedy’s remarks were mentioned about the high recidivism, but I must have missed the rebutting to that myth.