Reply To: Michigan files supplemental brief replying to solicitor general

#17688

Smith

When SCOTUS took the Alaska & Connecticut cases in 2003, the general consesus among attorneys was that it was ominous, meaning it seemed to be a given that the court would rule against RSO’s and, in fact, they did, but consider the following:

1) Trump’s SCOTUS pick, Judge Neil M. Gorsuch, has been opined by many, even members of Congress, as being a ‘strict Constitutionalist’;

2) Kennedy and Kagan are seemingly leaning against retroactive application;

3) Former Chief Justice Rehnquist callously and mockingly remarked during the 2003 Alaska and Connecticut arguments that maybe RSO’s “need to be stigmatized”, injecting his own personal views into the decision, but he’s gone;

4) Remember, in the 2003 ruling, Justice Stevens, in his dissent, offered a couple of useful nuggets:

“What tips the scale for me is the PRESUMPTION OF CONSTITUTIONALITY NORMALLY ACCORDED TO A STATE’S LAW. That presumption gives the State THE BENEFIT OF THE DOUBT in close cases like this one, and ON THAT BASIS ALONE I concur in the Court’s judgment…The Court’s opinions in both cases FAIL TO DECIDE whether the statutes deprive the registrants of a constitutionally protected INTEREST IN LIBERTY. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Meachum v. Fano, 427 U. S. 215 (1976). Proper analysis of both cases should therefore begin with a consideration of the IMPACT OF THE STATUTES ON THE REGISTRANT’S FREEDOM…The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply…The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the “[w]idespread public access,” ante, at 99 (opinion in No. 01-112729), to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7-21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a CONSTITUTIONALLY PROTECTED INTEREST IN LIBERTY. Cf. Wisconsin v. Constantineau, 400 U. S. 433 (1971)…It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender’s LIBERTY…In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person’s LIBERTY is punishment.”

Justice Stevens kept bringing up the Constitutinally-protected right to “liberty” which, apparently, was not fully before and addressed by the court in the 2003 ruling.

5) Also, during the 2003 arguments: ‘It’s not the whole truth,” Justice Ruth Bader Ginsburg said to John G. Roberts Jr., representing Alaska. Justice Ginsburg noted that Alaska’s Internet site that identifies offenders and their whereabouts does not indicate those who have successfully completed rehabilitation programs. ”The public is getting only the bad and not the good,” Justice Ginsburg said. ”Its judgment is being skewed.”

6) Who would have initially thought SCOTUS would have ruled in favor of RSO’s on a less important matter (as compared to registraton and public notification) such as having access to the Internet and social media, but they did;

7) The main information the government pushed, and the judges relied upon, in 2003 has since been de-bunked by the extensive research of many, including the very author of that article, and hopefully their voices will be heard this time around:

From: https://narsol.org/2017/07/district-attorney-to-seek-scotus-review-of-pa-decision/

‘In a 2016 article, Arizona State University Law professor Ira Ellman found the current legal argument for high recidivism rates comes from a 1986 Psychology Today article. The article, written by counselor Robert Longo to tout a sex offender treatment program he ran, quipped that up to 80 percent of untreated sex offenders go on to commit new offenses…Figures from Longo’s article have been cited by the U.S. Supreme Court to uphold previous iterations of sex offender registration laws. Longo has since disavowed the 80 percent figure and publicly opposed sex offender registries. In speaking with The Sentinel in 2016, Longo said the 80 percent figure is inaccurate and a “very high estimate.” He said it was unfortunate that his work has been used to support registries because “those laws did nothing. (Registries) didn’t prevent anything.” He now places recidivism rates at roughly a quarter of his original estimate. “People are going to take anything that works to their advantage, or twist a quote, to make it work to their advantage, and I just think it’s unfortunate,” he said.’

So, with all that said, here we are, 14 years later since the Alaska and Connecticut cases…would it really be a bad thing this time around if SCOTUS does grant the Michigan AG’s Writ of Certiorari? Is there a possibility, one-and-a-half decades later into this miserably-failed social experiment, that the court has seen or can be shown the light and try to right its wrong…to take a step in the right direction to undo this grave injustice and insult to both the Federal and state constitutions?

On the flip side of the coin, should SCOTUS grant Michigan AG’s Writ, one has to wonder if Chief Justice John G. Roberts Jr. will do the right thing and recuse himself? Many may not know that the current Supreme Court Chief Justice John G. Roberts Jr. and the attorney John G. Roberts Jr who argued before the Supreme Court in 2003 on behalf of the State of Alaska, asking the court to uphold the registration and notification requirements, are ONE AND THE SAME!

See: https://www.montanaprobono.net/geo/search/download.71936

Though he did join the Court’s unanimous decision a few weeks ago regarding RSO’s and social media, I’m wary he can now adhere to the same Constitution he obliterated when it comes to registration and notification issues, given his strong defense of the whole draconian scheme when he argued before the very court he now heads back in 2003.