Due Process: Another one bites the dust
By Kyle . . . We are witnessing a disturbing trend in America of punishing people after they have completed their official court-imposed sentence for an offense or even before any criminal charges have been filed and a person has been convicted of a crime.
In the arena of sex offenses, this manifests in several ways. Indefinite civil commitment-habeas corpus anyone? Registration beyond the term of the sentence. Registration results in numerous harms which clearly constitute “punishment”: serious housing restrictions; movement restrictions; domestic travel restrictions, making travel for business and pleasure a nightmare; employment challenges; and now, passport markings (A Scarlet Letter) because of the International Megan’s Law in conjunction with Angel Watch. This is not only “compelled speech” (as it is for registration in general) but restricts one’s ability to travel freely internationally for business or pleasure.
All of this is based upon a perceived, theoretical (and very inaccurate, skewed) risk of POTENTIAL FUTURE sexual criminal offending, a la the pre-crime of the movie Minority Report.
Additionally, the U.S. Federal Government refuses to issue a passport to anyone with an outstanding federal tax debt of at least $50,000.00, this before any criminal charges have been filed or a person has been convicted of a tax crime. Again, potential future crimes. Of course, they fear the person may flee the country and never return to settle the tax debt. Fair enough, but if that is the case, then charge them, arrest them, and try them; else, leave them alone.
Innocent until proven guilty? Not any longer in America apparently.
What this really comes down to are understandings of just what constitutes unconstitutional, compelled speech and whether domestic and international travel restrictions, housing restrictions, movement restrictions, etc., aren’t actually criminal punishment rather than just civil administrative, public safety policies.
You could even throw in the restrictions of a former felon with no violent weapon offense being forever banned from owning guns for personal protection, in violation of the Second Amendment. We know from 35 years of data that the argument of public safety holds no water. Given that, these can be seen as nothing less than intentional, vindictive criminal punishment (restrictions of constitutional rights) beyond the terms of the sentence without due process?
Does placing these types of restrictions on people past the terms of their original sentence or without any legal proceedings or due process constitute “punishment” rather than just “inconvenience”? I believe it clearly does. These types of extra-legal punishments need to be litigated out of existence or legislatively abolished. Failing that, it is a sad joke to call America a free country where all citizens enjoy protected, constitutional rights.
Kyle is a person required to register on the sex offender registry in Colorado.
Due process theory has two basic branches, Procedural theory and substantive theory. The signed standard waiver of civil rights as a fundamental part of plea bargain overcomes both aspects of due process. Thus states are free ( by the defendant’s own choice) to act (post conviction ) accordingly. Thus, the reason for the procedural 9-0 in Connecticut DPS v Doe. However, in that opinion both aspects were noted, and because it was absolutely necessary for SCOTUS to mention both. This is precisely because those who’ve intelligently waived are treated quite differently than those who have not entered into a waiver, or those who will not enter into waiver.
Unfortunately, the problem with doing so is that the legislators elected into office will never go against the majority public opinion, albeit an improperly informed and wrong one. They hold their salaries and positions of power more dear to their hearts then doing the right thing by restoring the constitutional rights of any person forced to register. Thus continuing the cycle of increasing burdens on those forced to live with them as well as any and all family members that are associated with them as well.
The misinformed public opinion has in part to do with the neglect of the Rehnquist lead majority in Smith V Doe. Their analysis required the panel to inquire whether SOR resembles a historical form of punishment. Yet, in their analysis they neglected to include the historical punishments identified in the 13th amendment in the probative conversation. There is involuntary servitude inherent in the database driven regimes operation.
It’s been over 30 years, Will I live to see freedom again. Will the loss of a free and productive life be compensated in anyway.
Great article by the way. You touched on just about all of the important points. ACLU had many of us write about our story’s and detail the hardships before going to court back a number of years ago. I wonder if doing more of that here and with other organisations swamping the desk of important leaders and Judges would have any affect. Maybe on a continuous loop. But I’m sure some organisations are already doing that. Thanks for trying anyway 🙂
Mr. Freeman,
I’m just an observer of NARSOL. They do important work.
Unfortunately it’s like fighting titans of old industry in the form of big tech. I’m sure you’re aware of LinkedIn, and their corporate funding support for the civil sex attack case against the former President. A scenario where NY altered it’s statutes of limitations to pursue their civil actions. That tactic was used upon an infamous man in California v Stonger and overturned in favor of Mr. Stonger!
Blackmail is a symptom and a “lawfare” tactic used by dark forces. The object, intent and effect of the sex offender registry databases, was and is, to intentionally divide the people with their use. E pluribus unum
There is a hidden problem that I only just became aware of. I went to college at Amarillo College, and had filed a grievance on June 20th, 2018 because the teacher was violating my ADA rights by saying I could not go to his class because I had a disability. Anyway, I JUST found out that 2 days after that, they tried to see if I eligible to be arrested for Failure To Register at the college. Cause they thought I was suppose to register every semester. THAT was their response to my grievance. See if they can use the registry laws against me in retaliation for my grievance. I only just looked into this because they were violating my rights again, by having me trespassed indefinitely with threat of arrest for filing a new grievance.
One key thing we overlook is the fact that we know that Legislators first created the laws that have been proven over and over again and again through many court cases and numerous professionals involved in research methods to prove that the laws are definitely unconstitutional. I feel the key part that we overlook is that the justices in the courts are to interpret the laws and yet when portions of the law is proven to be unconstitutional they in there opinions allow this to continue. They refuse to bow knowing that this is punishment after punishment. So the real blame goes to the justices within our court system.
Kyle, your premise is: “All of this is based upon a perceived, theoretical (and very inaccurate, skewed) risk of POTENTIAL FUTURE sexual criminal offending, a la the pre-crime of the movie Minority Report.”
And….. you mention that these are “extra-legal punishment types.”
What are the numbers in Colorado? How many persons in Colorado are subjected to this? What is the breakdown of men, females, Caucasians, Latinos, blacks etc? Further, what are the risks of POTENTIAL FUTURE sexual criminal offending? And last but not least what are the sources for these numbers?