Reply To: Solicitor General to SCOTUS: Don’t grant Snyder petition

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Jeremy Heady

I find it interesting that the brief basically argues the case (without a counter argument) to petition for denial of certiorari. In my opinion, this brief actually makes the case FOR certiorari because it contends in many points that there is wide disagreement of whether this case would apply to other states’ SORNA schemes. That is precisely why the Supreme Court should take the case; when there is disagreement among lower courts and legislatures. The court needs to resolve disagreement in a number of areas, mainly:

1) Whether in-person reporting constitutes an affirmative restraint. Either it does or it doesn’t. The frequency a registrant must report should be irrelevant

2) Whether public notification constitutes punishment. It’s irrelevant whether the tier class or the photo of the offender is public or not. The broader question is a matter of disagreement and needs to be resolved

3) Whether range restrictions of any sort as a whole pass the test brought forth in Smith. Almost every state has range restrictions of some sort; some more restrictive than others and this has been widely disagreed on across jurisdictions. Many localities have city ordinances that go beyond state law as well

4) Whether the test in Smith was improperly administered in light of new evidence showing more weight to significant factors

I believe that Justice Kennedy’s opinion in Packingham recognized these problems in his parenthetical statement and is inviting this case or one similar to be granted cert. Since 4 other justices joined his opinion, it’s safe to assume that they were joining in that invitation.

Lastly, the court must recognize any time they are reviewing a petition for certiorari whether it will prevent further litigation in the lower courts and further requests for certiorari or not. In this case, I think it’s a no-brainer that if they resolve this question now, it will silence most litigation. There is a high possibility that states and local jurisdictions will attempt to find ways around a decision in this case though.

This is the case we have all been impatiently waiting for! It’s time!

In my opinion though, the entire fight is not completely over if we get the preferred decision in this case. When it comes to housing and jobs, many still conduct bg checks and when our histories come to light, the problems there still exist. While this fight would be more along the lines of convicted felons in general, I believe it should be brought up to the court that bg checks are unconstitutional based on the 8th and 9th amendments to the constitution. The same test in Smith should be applied. I would accept a bg check scheme that

1) has a time limit measured from the release from incarceration rather than conviction date. This measurement is necessary to ensure the time limit is effective because if the time limit is ten years and the measurement is time from offense. A person who just spent ten years in prison could get out without having to worry about a bg check. Inversely, a person who only gets probation would have to deal with bg checks for the next ten years. This doesn’t seem appropriate and is likely why they started asking if you EVER have been convicted. I would agree with a scheme that incorporated both and took the later of the two though.

2) has categorical checks that apply to the employers business (such as SO offense, theft offense, violent offense, etc.) This should be conducted by the bg check agency and labelled on the application for employment. Once the bg check is conducted, the agency only submits to the employer offenses that match the question on the application. The reason for this is because it is a legitimate concern not to have someone convicted of theft working at a bank or an SO convicted of an offense involving children working at a school. It is not legitimate to refuse a job at a factory or production facility that has no children present to said SO, nor is it legitimate to refuse a former thief a job in which there is security and the person is not handling money.

3) removed the ability of landlords and property managers to conduct bg checks. There is no legitimate reason for this.

4) Allow for waivers on a case by case basis. For instance, it’s a legitimate interest to prevent anyone convicted of a crime in law enforcement. Licensing professions should still conduct review boards for character flaws as they do now.