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Criminal or civil? Right or wrong? Does anyone care?

By Scott H. Greenfield . . . It’s bad enough, both for substantive as well as factual reasons, that the Supreme Court in Smith v. Doe held that sex offender registration was not punitive, but civil, and therefore beyond the reach of the Ex Post Facto Clause. Not only was it grounded in utterly baseless statistics of recidivism, but it indulged in the fantasy that rhetoric was an adequate substitute for inquiry before destroying the future of an entire class of people.

In other words, this categorical group known as “sex offenders” was so deserving of a life of misery, prohibition and shunning for the putative safety of the community that there was a rational basis for civil rules to make them societal outcasts. Where they can live, work, exist for decades, if not the rest of their lives, was constrained to the point of impossibility. And should they mess up compliance with any detail, back they go to prison.

But it’s not criminal. It’s civil. For no better reason than legislatures say it’s not punitive, but for the safety of the children, Even though it’s punitive. Extremely punitive.

Arizona wants to take this further. Paul Cassell wants to help.

The Supreme Court will soon consider whether to grant a certiorari petition filed by Arizona, which involves a voter-approved amendment to the Arizona Constitution rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a 4-3 divided opinion, the Arizona Supreme Court concluded that this amendment was unconstitutional. Arizona has sought review of that decision.

Along with counsel of record Allyson Ho and her colleagues at Gibson, Dunn & Crutcher and Steve Twist at Arizona Voice for Crime Victims, I have filed an amicus brief urging the Court to grant review. Our brief argues that nothing in the Constitution prohibits the States from empowering trial courts to protect crime victims by denying defendants bail when—as determined by a trial judge after a full and fair adversarial process—the proof is evident that the defendant committed a sexually violent offense.

What might catch an eye immediately is the conflict between the “categorical ineligibility” for bail and the “full and fair adversarial process.” The apparent key to Cassell’s argument is whether “the proof is evident or the presumption great.” Bear in mind, this is at the stage of arrest, before discovery, before motions, before trial. There is no proof, but only accusations.

As for “the presumption great,” we already have one: the presumption of innocence. . . .

Sex offenders today are what drug dealers were during the crack epidemic, or black teens during the Superpredator panic. There is no empathy left for them, but worse still, they are painted as so deplorable and irredeemable that they are unworthy of the rules, the safeguards, we otherwise apply to everyone. Sure, it’s wrong, but so what, we hate them so very much.

Read the complete blog post here at Simple Justice.

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This topic contains 12 replies, has 2 voices, and was last updated by  Lawrence Rider 2 weeks, 6 days ago.

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  • #49114 Reply

    admin

    By Scott H. Greenfield . . . It’s bad enough, both for substantive as well as factual reasons, that the Supreme Court in Smith v. Doe held that sex of
    [See the full post at: Criminal or civil? Right or wrong? Does anyone care?]

  • #49128 Reply
    Charlie
    Chuck

    That last part of the article, “First, we vilify a group of people because they are the most hated of the day. Then we carve out exceptions to the rules that apply to everyone, except our most hated, Then we vilify those rules, the same ones we adored and relied upon for others, since there is no principled way to justify depriving them to one group and not another, unless the rules themselves create the evil that allows the most hated to avoid the consequences the unduly passionate demand be imposed.

    Then we wait for a generation or so to grieve over the errors of our ways again, and ponder how we could have been so blind and foolish to repeat the same mistake. And yet, we keep doing so because there is always some category so vile and despised that it’s unworthy of fairness.” Sounds all to frighteningly familiar to what once happened to the Jews in Germany. Rally hatred, stir up a scapegoat to focus all societal angst in in fear based direction, destoy collective empathy, and increase the power of those who would rule the masses. Scary stuff. Hopefully, the positive outcome will be such an egregious overreach that the Supreme Court will be xpelled to act rationally to protect the constitutional rights of citizens. If not, and hopefully the citizenry will rise up and scream enough is enough. I hope I live long enough to see it.

    • #49352 Reply

      Lawrence Rider

      ….. or wait till everyone has been sentenced to registration under the states criminal laws and all us old timers are dead. Then they can say: oops, it was servitude prohibited by the 13th Amendment all along, but we won’t matter then.

  • #49118 Reply

    Timothy

    @Scott G,

    To be sure a defendant in an FTR case, or failure to provide information cases are presumed guilty ( of sexual illegality) before trial ensues for the civil infraction. In reality the jury already knows guilt of another previous sex crime or there’s no necessity to register in the first place.

    It is nearly impossible for an already established sex offender to get a constitutional trial in registration violation cases AND it is based upon known guilt. The people do the same with felon in possession of fire arms cases. Guilt of possession by trial based upon previous guilt.
    Judge Blackmon had something to say about that very illogical error in his decent opinion in the first challenge law banning felons from possessing guns. He expressed the fact “a law” will not deter nor prevent bad guys from attaining guns, thus obfuscation of constitutional and ratified government limitation was not warranted as no added public safety would flow. How exactly correct was he on that score.

  • #49143 Reply

    James Mayfield IV

    The registry is definitely punitive. Sometime in the near future there will be a child who is brought up by a parent on the registry, who will testify to congress about being bullied in school and will have experienced first hand the prejudice of society toward his or her parent. I hope change comes before this occurs, but once enough children who have been reared by people on the registry testify that they were not harmed in any by their parent maybe society will wake up. There is so much ignorance in this world so much judgement without rational thought, yet the world has such
    beauty also, what a dichotomy. I do my best to focus on the latter.

    • #49189 Reply

      WC_TN

      If the children of registered citizens are being bullied by members of “respectable society” today, knowing full well the child had nothing to do with their parent’s crime(s), what makes you think anyone will give a flying rip about it after they’re grown?

      I’m sorry, but “respectable, God-fearin'” society is nothing but a bunch of hateful, vengeful, self-righteous hypocrites.

  • #49157 Reply

    Anon

    Perhaps the Justices are correct, that the registry isn’t an ex post facto law. It’s certainly a Bill of Attainder!
    Definition: A legislative act that singles out an individual or group for punishment without a trial.

    • #49351 Reply

      Lawrence Rider

      Anon:
      I think you are correct. Its Attainder; bill of pains and penalties. And I think its punishment because it is servitude, which is a historic form of punishment. The court never considered the mental, physical or financial impact on a targeted individual

  • #49216 Reply

    Maestro

    WC_TN:
    “I’m sorry, but “respectable, God-fearin’” society is nothing but a bunch of hateful, vengeful, self-righteous hypocrites.”

    Yyyyyyyyuuuuuuuuuuuuuuuuuuuuup! I’ve said this a million times and I’ll keep saying it. And no matter who wants to jump in to say “Not all Christians”…just remember something – “Not ALL sex offenders” either. But ALL of us get lumped into the same basket as those who don’t care about the crimes they’ve committed and don’t care about committing more. If my country is going to keep shoving it down my throat that we’re so “godly” and “forgiving” and “Christian”, then PROVE IT!!

  • #49236 Reply

    Saddles

    Without rational thought. James I liked that. I believe at times we are all like the blind leading the blind. Now who has irrational thought today when we need rational thoughts today. Would one rather be foolish than to be concieted in thought or wisdom as some of these thinkers can say that say we all came from monkeys. We can all talk about hypocrities or those who think they are right all the time, but we all make mistakes and are disllusioned at times. Sure the sex offender in most cases is getting a bad deal. The kids growing up with parents that are under the registry may be bullied in a way. Has society as a norm has gotten off the tract in loving. Yes I’m sure we have all been lead astray.

    Today would one rather hate than to love, care, bully, or understand his or her foolish mistake. Kids, well look at us are we not Kids only in adult bodies and we all have made mistakes. When anyone misuses a child, even an adult, we all need to stand up. Now people can believe their self-righteousness but were does faith and true understanding come into play.Who wants to be wise in their own conceit. Yes we will all make mistakes untill we die unless we all learn to come to grips with our situation. NARSOL and other groups are in their fighting to help in all this battle so families can come together and the sex offender is not considered the lowest of the low. So should love cover a lot of hate or should rational reasoning and understanding be the norm.

  • #49350 Reply

    Lawrence Rider

    Here is a quote from Smith:

    “Whether other constitutional objections can be raised to a mandatory reporting requirement, and how those questions might be resolved, are concerns beyond the scope of this opinion.”

    Another challenge like ……. Involuntary Servitude?

  • #49349 Reply

    Lawrence Rider

    Registration is criminal because it violates the 13th Amendment, as codified by the federal criminal code, which prohibits forced labour and services — involuntary servitude — except as punishment for a crime the person was ‘duly’ convicted of committing.

    Lock em up!

  • #49406 Reply

    Dave

    This is ONLY going to the US Supreme Court because it involves an issue of law bringing the wording of the US Constitution into question.

    This will fail because according to the US Constitution, everyone has a right to trial by Jury of their peers, a panel derived from members of the general public…

    “victims by denying defendants bail when—as determined by a trial judge after a full and fair adversarial process—the proof is evident that the defendant committed a sexually violent offense.”

    A “after a full and fair adversarial process” means that of a jury trial…

    “the proof is evident that the defendant committed a sexually violent offense” can ONLY be determined at a trial by a jury of peers, not at a preliminary hearing which is just used to address prima facie.

    Why do you guys get so worried over everything that goes into the US Supreme Court that involves sex offenders. Start learning some of that law out there guys…

    No need to get worried, this will fail. Next…

  • #49720 Reply

    Bill

    Hey gang,

    Found this at the ACLU of Michigan site:

    On June 28, 2018, an amended complaint, which is the basic legal document setting out the claims, was filed challenging SORA on behalf of all Michigan registrants. The attorneys also filed a motion for class certification. A motion is a legal filing that asks the court to do something, in this case to apply its rulings to all registrants in Michigan. On July 12, 2018, the attorneys filed a motion for partial summary judgment seeking a court order barring the retroactive application of the 2006 and 2011 amendments to registrants whose offenses predate those amendments. The attorneys are now filing legal papers about those motions. Hearings on those motions will likely be held in October.

    There is no way of knowing with absolute certainty when this case will be resolved. Litigation is a slow process. The Does I case took six years. But the issues in Does II were already decided in Does I, so this case should be much faster. We hope to see significant developments in the case by the end of 2018. I’m guessing, but like to hear more from the leaders…on whether the classes were certified and any new developments.

    Will This Litigation Affect Individuals Who Do Not Reside in Michigan? Unfortunately, no.

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