Reply To: Michigan files supplemental brief replying to solicitor general


Jeremy Heady

While I do agree somewhat with Robin that the Supreme court is more likely to take the case if they feel it could be overturned, I still do not believe it is the rule. I believe this is one of those cases for the following reasons:

1. The sixth circuit, Pennsylvania, and a number of other courts have declared different provisions of SORNA as ex post facto punishment, yet in many cases, they don’t necessarily agree on exactly what is punishment (residency restrictions, lack of due process, internet exposure, offense based criteria, frequency of in-person reporting, etc.)

2. Pennsylvania’s decision effectively declared AWA, a federal law, unconstitutional.

3. California is currently facing legislative battles on residency restrictions.

There are really two sides to this coin. On one hand, if the Supreme court denies cert to Michigan or Pennsylvania, then those decisions stand as precedent. This would mean that AWA is obsolete and the provisions in those decisions declared ex post facto would become the law of the land. While that sounds like exactly what we want, I would argue for cert for the purpose of clarification.

Since both of those decisions, and many others, seem to only affect the individual states’ regimes, it would be beneficial to us to have the Supreme court clarify what is and is not ex post facto punishment. Although it’s unlikely considering the court usually sticks to the specifics of a case, this also gives them an opportunity to clarify other problems with the registry, such as:

1. Internet exposure of registrants. Most of you can probably relate to this, but internet exposure of residents causes employers to consistently violate the FCRA. Background checks are covered under the FCRA and the employer must notify you prior to performing one. They do not notify you when they do a search of your name online though (which I argue is a background check in itself). This is used by many employers to weed out candidates prior to the official background check. The use of illegally obtained internet search results in weeding out a candidate violates the FCRA and is disproportionately used against registrants. This may require its own case (I have yet to see this brought up in a court) to be brought after the other issues are dealt with though.

2. Residency restrictions. California and Florida are the biggest culprits of abusing this supposed tool. These states and a few others (Minnesota comes to mind too) are facing many legislative battles that could be resolved by the Supreme court although, again, this may require another case specifically challenging it. This really needs a federal decision because this needs to be treated as a federal problem. As many articles and commentators have noted, there is no evidence these restrictions are effective or necessary. The only reason they exist is because each jurisdiction doesn’t want to be the safe zone for sex offenders. It’s a race to see who can be more strict so their SO population thins out. If it’s only solved locally or within one state, that jurisdiction will complain that SOs will be more attracted to their jurisdiction.

3. Liberty bans. While this is not something my state does (although I think nearby local jurisdictions may), many still do. In many states and local jurisdictions, just being near a park can land an SO in jail for “loitering”. In Packingham, the court used the word “parks” when describing free speech. These laws are in conflict with that decision.

4. Civil commitment. I don’t know the exact case name, but recently in Kansas, this problem was declared constitutional in direct conflict with the Michigan and Pennsylvania decisions. This is a gross violation of liberty and due process by effectively extending a person’s sentence to civil commitment by saying it’s a medical treatment. Insane asylums were outlawed years ago and that’s what these are basically, yet there’s little to no actual medical treatment provided. They are treated like prisoners.

5. GPS devices. While I don’t argue against restrictions for parolees (parole is a punishment), this practice has gone way beyond that by forcing it on registrants not on supervision. This is a gross violation of liberty and privacy.

I bring up these points because these are all violations of ex post facto, but different courts declare different things as punishment. Having the court consolidate the multiple cases in its next session with an hour or longer oral argument could provide us with the landmark decision we’ve been wanting for a long time. Yes, there is the possibility they would overturn one or more of these laws, but I am confident that after Packingham that the justices are starting to realize the unconstitutionality of these schemes. It’s time we let them declare it.