By Sandy . . . From Aurora, Illinois comes good news: Thanks to litigation filed, the city is backing off its threat to force nineteen registrants to leave Wayside Cross Ministries. Furthermore, a federal judge has ordered the men be registered as living at Wayside.
Even though the city insists that the actual threat of the registrants having to leave the ministry comes from the State Attorney’s office, the suit maintains that the impetus for the situation originated with the city of Aurora, and they have responded to the suit by saying they will not take action.
The Wayside Cross/distance restrictions suit is one of several filed in Illinois by NARSOL affiliate Illinois Voices’ attorneys Nicholas and Weinstein. Growing out of the Wayside case is one challenging the way the state defines a playground as opposed to a park for the purposes of establishing restricted living areas for registrants. Others still pending are cases involving presence and residency restrictions, mandatory supervised release which can keep a person in prison indefinitely, prohibiting contact with one’s own minor children, internet restrictions, and prohibiting a name change. Other registry-related suits have been filed independent of Illinois Voices. Illinois appears to be one of if not the most prolific state in challenging the registry and sexual offense related issues.
Each year sees a marked increase in litigation that challenges the registry, its scope and outreach, and its effect in the lives of everyone it touches. NARSOL and its affiliates are involved in a significant number of these cases, and we welcome cases being brought against the registry in all states.
The oldest pending NARSOL-involved case is a residency restrictions case in Rhode Island. The statute being challenged is especially onerous as it would be applied retroactively and remove registrants from the homes where they have lived prior to the statute being enacted. The plaintiffs’ attorneys sought and were granted from the outset a restraining order which will remain in place until the case is resolved. Initiated in 2015, this case has stalled due to the state’s handling of discovery, which is fine with NARSOL as long as no registrants are forced from their homes in the interim.
Another case (2017) that has been pending for a while in the Tenth Circuit Court of Appeals due to the plaintiffs submitting supplemental authorities is a case in Colorado challenging the registry on the basis of ex post facto and cruel and unusual in regard to enhanced restrictions. NARSOL submitted an amicus in support of the plaintiffs.
In North Carolina NARSOL has three active cases filed by NARSOL’s attorney Paul Dubbeling. Two of the cases are ex-post facto challenges, and the third is a premises restrictions case. North Carolina is notable in the sexual offense litigation arena for taking the Packingham case to the U.S. Supreme Court and winning.
Texas has an active case filed by NARSOL affiliate Texas Voices and attorney Richard Gladden. This case claims the registry as it is applied in Texas violates the Substantive Due Process Clause of the U.S. Constitution as interpreted by the U.S. Supreme Court in Santobello v. New York, 404 U.S. 257 (1971).
One of the most critical current cases is in Tennessee in response to legislation that stripped the rights of parents convicted of certain sexual crimes to live with and parent their own children. The legislation is applied indiscriminately to anyone with a conviction against a child under twelve regardless of how long ago, the age of the registrant at the time, the victim not being related to or living with the registrant, or the needs of the registrant’s children. As in Rhode Island, a restraining order is in place and will remain so until the resolution of the case.
Georgia is another battleground state for NARSOL-initiated litigation. We are bringing suit against the sheriffs of two counties there for requiring signage be placed on registrants’ homes (Spalding County) or in their yards (Butts County) for Halloween in the absence of any statute authorizing this. A victory was won in Georgia earlier this year when the Georgia Supreme Court struck down a law requiring those who are classified as “dangerous sexual predators” who have completed their sentences to wear electronic monitors for the rest of their lives.
A new case just filed in Missouri seems promising as some of the plaintiffs are the children of registrants who have suffered due to their parents’ inclusion on the registry. The basis for the suit is that the registry is unconstitutionally cruel.
And while not sexual offense specific but certainly applicable, in Florida two suits have been filed against the correctional system. In one, a First Amendment violation in regard to prison circulation restrictions on printed materials, NARSOL has submitted an amicus. In the other, the Florida Correctional System is being sued in regard to their solitary confinement practices.
Litigation in Michigan – two cases – drew attention from all over the country earlier this year when Attorney General Dana Nessel submitted amicus briefs in support of the cases and the claim that Michigan’s sexual offense registry as it is applied in some cases is punishment and in violation of constitutional protection. These suits were brought by the ACLU there working with NARSOL’s affiliate organization CUR.
Pennsylvania appears to be as prolific as Illinois in registry-related suits. NARSOL’s affiliate there, PARSOL, reports following a total of twenty cases that are currently in the appeal process, some already scheduled to be heard by the PA Supreme Court (PASC). Most of these challenge the constitutionality of SORNA II (the “legislative fix” that was adopted after the PASC opinion that SORNA I was unconstitutional). Others challenge the constitutionality of having to disclose computer passwords, sharing information from mandated group treatment with the SOAB without a waiver from the client to do so, and SVP designation. PARSOL submitted an amicus brief for one of the cases challenging SORNA II.
In New Mexico no suits have been filed yet, but one is pending – due process for registrants with out-of-state convictions moving into New Mexico – and several others are being planned.
California, which has had success there with suits from ACSOL regarding residency restrictions and Halloween restrictions, continues, under ACSOL, to bring residency restrictions suits where needed.
There are almost certainly other cases of which I am unaware. Our biggest successes thus far have been in the legal arena, and fighting for the constitutional and human rights of those with sexual crime convictions is rewarding, challenging, and expensive.
However, as long as there is a wisp of breath in our bodies, a drop of blood in our veins, and a dollar in our bank accounts, we will continue to fight.
Sandy, a NARSOL board member, is communications director for NARSOL, editor-in-chief of the Digest, and a writer for the Digest and the NARSOL website. Additionally, she participates in updating and managing the website and assisting with a variety of organizational tasks.