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Sex offender registry sparks Supreme Court debate

By Lydia Wheeler…

Supreme Court justices on Tuesday grappled with how much power Congress can pass on to federal agencies in a case that could change the way Capitol Hill legislates.

The justices on the eight-member court heard arguments over whether Congress crossed a line in 2006 when it passed the federal Sex Offender Registration and Notification Act that was signed into law by then-President George W. Bush.

Herman Gundy, who was convicted in 2005 of raping an 11-year-old girl and then indicted in 2013 for failing to register as a sex offender in Maryland and New York, is challenging the law’s registration requirements.

He argued Congress had violated the nondelegation doctrine in allowing the U.S. attorney general to make the law retroactive.

The rarely enforced principle of administrative law prohibits Congress from transferring its legislative powers to federal agencies without an “intelligible principle” or guidance on which to base its regulations.

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This topic contains 17 replies, has 3 voices, and was last updated by Fred Fred 5 days, 16 hours ago.

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  • #47286 Reply

    Saddles

    This supreme court debate should offer more debate than some of this stonehearted confessional moral.

    • #47308 Reply

      Timothy

      Mr. T.
      When lawyers start tossing around ambiguous, non laymen, and intellectual terms like “intelligible principle” , ” plausible deniability” , “indeterminate term” and ” intermediate scrutiny” more illegality has already occurred by our constitutional state and federal elected politicians. As in Packingham, rights are inextricably infringed first and corrected later after irreparable harm experienced. A plain argument for a lack of constitutional basis, that is presumed innocence.

  • #47319 Reply

    Glen

    Based on the articles I’ve read regarding the Gundy hearing, and the questions presented by the judges, I’m not confident Gundy will triumph. Gorsuch and Ginsberg appear to be for Gundy in this case but I dont have a good feeling about the rest. And, Breyers comments are particularly interesting, if not insulting implying if they rule for Gundy it will open up more challenges and the “Courts will be busy for some time..”. Well sorry about that sir… Do your job.

    I think we can expect a disappointing ruling here. Hope I’m wrong.

    • #47323 Reply
      Fred
      Fred
      Admin

      You may be right, as we can never know for sure until the order is released. However, Gundy lost in the lower court before petitioning to be heard by the Supreme Court. History shows that the U.S. Supreme Court rarely grants review to a case unless they see a problem with the lower court’s ruling. The fact that Gundy advanced to this point is a very good sign. I am very optimistic that the order will come back in our favor and overturn the lower court’s ruling, possibly this week.

      I am not not nearly as optimistic on the significance a favorable ruling will have to registrants, as the question seems to be more along the lines of whether or not the U.S. Attorney General has the right to decide who falls under the law than about ex post facto/retroactively applying the law after the fact.

      • #47338 Reply

        WC_TN

        Fred,

        If the Supreme Court rules favorably in Gundy, would that not make it easier to go back later and mount an attack that focuses on the ex post facto violations inherent in Federal SORNA?

        • #47344 Reply
          Fred
          Fred
          Admin

          It will be neither easier nor harder. A challenge on those grounds will need to work it’s way through the lower courts before having the option of filing a petition to the Supreme Court. They can use the ruling on Does v. Snyder by the 6th Circuit for leverage, as SCOTUS denied review in that case and therefor upheld that ruling in our favor.

        • #47347 Reply

          Glen

          I tend to agree. I’m not sure a favorable ruling for Gundy will have any real impact on future ex post facto arguements. It appears the only question SCOTUS is addressing is whether congress can transfer it’s responsibility to another entity.

          My thought is a favorable ruling will only send it right back to Congress, who will simply ammend SORNA and essentially re-apply it – just as it is now.

          Hoping for some positives though…

      • #47345 Reply

        Glen

        Fred, that’s a good point. Obviously they chose to hear the case because there is an aspect they may likely rule against. I’m thinking, if they do, it will simply put the onus back on congress with regards to the applicability of SORNA. Congress will then likely clarify and ammend the law to read just as it does now and we are right back where we were. In other words, I’m not sure a ruling in Gundy’s favor will change anything for offenders prior to Sorna…or, atleast not for long.

        It’s hard to say. Do you see any other real positives coming out of favorable ruling?

      • #47346 Reply

        Timothy D A Lawver

        @Fred, Glen
        In Wisconsin it is not just a constitutional question of ex post but in practical terms 304.15 WHO IS COVERED
        1g(a) “Convicted…. on or after Dec 23, 1993” is overcome by language in 1g (b) or (c)…..
        In my situation the ex post in b,c absolutely defies a legal limit law on it’s face by DATE!1g(a)
        A reasonable reading of 304.15, 1g(a) would uncover me absolutely if read alone, as I was wrongly convicted in 1992 by jury of peers. The legislature must have had intention to exclude those convicted of….prior to Dec. 23 of 93.

        OPT for Trial. Use the law itself. Nice Wiki!

        P.S. The WI act that created 304.15 with the Dec 23 93 date was written in 1995. Just after 94OMNIBUS, but not implemented as to me, and my knowledge till 1998 when they extracted me from my home took me to county on FTR No.1. Yes I demanded trial.

    • #47339 Reply

      WC_TN

      I don’t give a flip about how busy the courts will be if they rule in favor of Gundy!! The SCOTUS is supposed to rule based on the law, not their own convenience and laziness.

      On another front here’s a nice little scare article filled with all sorts of outright lies about sex offenders and Halloween. They don’t even have the decency to have a comments section for that tacky little op-ed to be debated.

      http://www.bostonherald.com/news/local_coverage/2018/10/sex_offenders_have_access_to_kids_on_halloween

      Sex offenders are forbidden under state law from driving an ice cream truck, but they can hand out all the candy they want on Halloween in what one child advocate is calling a risky oversight.

      “Halloween is like Christmas for sex offenders,” said attorney Wendy Murphy.

      “They know they’ll have lots of access to kids and that they can’t get in trouble even though they’re required to stay away from children.”

      Missouri, North Carolina, Ohio, Tennessee and Texas all have “no candy” laws that ban sex offenders from handing out treats on Halloween.

      In Florida, sex offenders out on parole cannot hand out candy or wear costumes on Halloween night.

      Both California and New York have similar laws that allow police to perform unannounced visits to sex offenders’ homes on Halloween night, Oct. 31.

      Some states also ban offenders from corn mazes and haunted houses.

      The Massachusetts Sex Offender Registry Board does map Level 3 sex offenders on the registry’s website.

      The locations of bus stops near where Level 3 sex offenders live — considered the most likely to re-offend — have sparked calls to Bay State schools and the registry board, the Herald was told.

      But there are no specific restrictions about participating in Halloween on the books.

      Murphy, who represents victims of sexual abuse, said the annual fall tradition of trusting your neighbors is rife with pitfalls.

      “Not having a law in place to protect kids on a day when they will excitedly be running toward people they should be running away from exposes kids to serious danger,” she said.

      “Massachusetts already has a well-deserved reputation for not effectively protecting children from sexual abuse,” Murphy added.

      The state Legislature would need to add any Halloween directive to the sex offender law for it to stick.

      The Missouri Supreme Court, according to published reports, did rule that state’s Halloween ban could not be applied retroactively.

      As for operating an ice cream truck, Massachusetts law states a sex offender caught doing so faces more than two years in jail or a $1,000 fine. And, the law adds, they can be arrested on the spot.

      • #47431 Reply

        Mig

        Here in Louisiana, registered citizens are prohibited from handing out candy to minors at Halloween, Easter, Christmas, etc. Also, Louisiana state law prohibits me from handing out Christmas presents to my own children.

        • #47476 Reply

          Timothy

          @Mig,
          Wi bans photos of kids technically. I confronted my P.O for that bs. I told her I had porn and toys and if she tried to limit their use I’d go to the paper with the story. I told them the same for ‘ treatment’ ! No need!

          Louisiana law is derived from Napoleonic traditions and differs some from Midwestern legal culture. Nevertheless, liberty suffers under indenture to a PROPERTY!
          The distinction intolerable – Brown v board of ed.

        • #47693 Reply

          R Bishop

          WC_TN,
          You are mistaken about sex offenders giving out candy on Halloween in North Carolina. There is no law preventing sex offenders from giving out candy at their homes. NC does however have a law preventing RSO’s from going to Halloween events in the community.

  • #47351 Reply

    Saddles

    I wonder what starts or sparks supreme court debates. Is it the moral or the confessional of the guilt or the logic of man in all these sex offender ordeals. Should all this debate transpose back to one’s unalienable rights or some hook or crook scheme because one party member wants to be right over the other party about how sex offender guidelines should be imposed. Should one put up a no tresspassing sign on one’s conscience, invade it, or should one go back to the make love not war era or get back to absolute truth. So who is the actual victim.

    Sure all this supreme court ordeal needs to be refreshed and the government needs to look how foolish they are or is lady liberty still blindfolded more today. Who’s balancing these checks and balances today. Now if courts or even the supreme court did a confessional of law I wonder who is the party taking a nip of gin today.

    Is it the battle of the sexists of men on top or is it absolute truth. Should we defends one’s character or have one make us the character they want. I don’t care if it’s a sex offense ordeal or what, who is murdering one’s character today or should we all go ask alice. Doesn’t one believe courts should reason all this out. Even Ed makes a lot of sense when he said I smell a rat or something’a wrong with government.

  • #47486 Reply

    Glen

    Any word on when the ruling is expected?

  • #47514 Reply

    TS

    Interesting article here regarding this case I thought you all would like to read:

    Gorsuch and Sotomayor Fault Congress for Giving ‘a Blank Check to the Attorney General’ https://reason.com/blog/2018/10/09/gorsuch-and-sotomayor-fault-congress-for

    “It remains to be seen whether or not a majority of the Supreme Court will see this case in the same light as Gorsuch and Sotomayor seem to see it. If the Court does, it will be a significant win both for criminal justice reformers and for critics of executive overreach.” June 2019 expected decision from the article.

  • #47528 Reply

    Glen

    Any word on when the ruling is expected?

    Fred makes a good point in that Scotus chose to hear this case so in would reasonably mean they are likely to rule in Gundy’s favor. Stil, reading over the hearing transcript, it appears Gorsuch is definitely on Gundy’s side; and perhaps there are a couple others too, but based on the questioning by the judges, several black robes also appear leaning torward the government. I’m pessimistically thinking a 5-3 ruling against Gundy. Hopefully we will know this week.

    • #47541 Reply
      Fred
      Fred
      Admin

      The next batch of orders and opinions will be released Monday. This case could be among them, but they can take as long as they want. Traditionally they will conference to decide the case a few days after oral arguments.

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