By Robin . . . The National Association for Rational Sexual Offense Laws (NARSOL), along with its North Carolina affiliate NCRSOL, has filed an amicus brief to the United States Supreme Court in an ex post facto case that originated in a North Carolina Superior court in September, 2014.
The case is styled In Re: Anthony Rayshon Bethea and was last considered by the N.C. Court of Appeals, which published its final judgment on October 3, 2017. The case was subsequently appealed to the N.C. Supreme Court which declined to consider it.
Both NCRSOL and NARSOL were approached by Emory University Law School’s Supreme Court Advocacy Program (ELSSCAP) in late August to become “friend of the court” clients in the case.
At issue in this case is the retroactive application of federal sex offender registration standards in violation of the ex post facto clauses of both the federal and North Carolina constitutions. In deciding the matter, a panel of the N.C. Court of Appeals unanimously held that there was no ex post facto violation because the N.C. Legislature never intended for the sex offender registry to be punitive and that the effects of the law are not punitive.
In light of the U.S. Supreme Court’s more recent refusals to accept petitions from Michigan (Does v. Snyder) and Pennsylvania (Commonwealth v. Muniz) in cases where an opposite conclusion was reached, this case appears to have some merit. It has attracted the attention of a national group of legal academics.
Attorney and N.C. Appellate Defender Glenn Gerding is involved with the case, and Atty. Jim Grant, one of his assistant defenders, is representing the defendant. Mr Gerding was responsible for representing Lester Packingham at trial and throughout the state appellate process that would inevitably end up at the nation’s highest court where, to the shock of some, a unanimous bench struck down North Carolina’s law prohibiting registered people from accessing social media (See Packingham v. North Carolina).
The four-part brief relies heavily on anecdotal support in its argument that the outcome below is unconstitutional in light of the U.S. Supreme Court’s application of Mendoza-Marinez factors to the facts of Smith v. Doe, 538 U.S. 84 (2003). The brief primarily argues that the enactment of so-called “second generation” sex offender statutes (laws that greatly enhanced the punitive effects of registration laws in a multitude of states) are in stark contradiction to the Mendoza-Marinez analysis the Court applied in Smith.
NARSOL is grateful to the contributions of many of its members who responded to a request for anecdotal narratives about the types of harms people are suffering as a direct consequence of being required to register as sex offenders. NARSOL would also like to thank Rashmi Borah (J.D. Candidate, Emory University School of Law) and her team of law student colleagues in addition to Professor Sarah Shalf (faculty advisor for Emory University School of Law’s Supreme Court Advocacy Program).
NARSOL has also joined with seventeen organizations on another amicus brief filed to the U.S. Supreme Court in a case out of the Eleventh Circuit Court of Appeals. This is an important case in support of Prison Legal News (PLN), which circulates to thousands of inmates in hundreds of correctional facilities throughout the nation. The case originated in Florida where that state’s Dep’t of Corrections has, thus far, successfully prohibited the circulation of PLN to its inmate population on the basis that it poses a threat to prison security and public safety. NARSOL’s interest in this case stems from the fact that it also circulates its bi-monthly publication, The Digest, among thousands of inmates in state and federal institutions throughout the United States.