ACLU to appeal Miami-Dade SORR Case
The ACLU has fled its Notice of Appeal in the Miami-Dade Sex Offender Residency Case.
The case, which was dismissed in the District Court, reversed in the 11th Circuit and remanded back to the District court and recently lost in the District Court, is making it’s way back to the 11th Circuit.
This is exciting news and keeps hope alive.
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I feel much better in the 11th circuit then I did in South Florida in the district court.
I’ve noticed FAC has refused any of my comments critical of its failed litigation as in this SORR challenge or in the M25 “In Person” challenge both of which primarily rely on Ex Post Facto challenges.
Whats maddening to me is the focus of the ACLU inquiry. Ex Post Facto inquiries are not about recidivism rates nor the lack of available housing, rather legislative intent. The threshold question is whether the punishment imposed is criminal or regulatory in nature.
Courts will never declare what the legislature deems as remedial as retribution. “Nothing but the clearest proof will survive” (emphasis added)… As soon as the court turns to those highly subjective factors found in Kennedy Mendoza, the case is lost.
All that matters in any Ex Post Facto challenge, (as clearly shown in Kennedy Mendoza), is legislative history, intent and statutory construction.
Note: if I come off sometimes incoherently, its the effects of chemo for treatment and Oxy for pain management.
Sorry about your illness. Still, we’ll defer to the attorneys in our cases.
Yes, but one of the problems is that we seem to have confusion over “legislative intent.” The STATE ( and a number of the counties) clearly felt that the “enhanced’ lifetime residency restrictions (as opposed to restrictions that ended upon termination of parole/probation) imposed in 2004-2005 would be subject to an ex post facto challenge so they did not impose them. The pre 2005 restrictions were a statutorily mandated special condition of probation which, as we all know, is PUNISHMENT. They were subsequently relocated to the registration section after 2004. What the post 2004 restrictions did was permit a limited expansion by the counties and cities of the exclusion zones. So the State can’t retroactively impose these restrictions, but they have somehow permitted the cities and counties to do so? As best as I can tell, the State has not actually said that this is okay. They have just declined to comment other than saying “state law does not impose any restrictions after sanctions have ended.” Of course, the problem with this as your main argument is that it does nothing for your clients who were convicted after 2005.
That is the second part of the narrative. “IF”it is determined that 775.215 was intended to punish, than County ordinances would be in violation of the States Constitution which prohibits Counties from enacting punishment for crimes. They have the power to enact regulatory sanctions where the penalty is no greater than a misdemeanor.
Of course, the problem with this as your main argument is that it does nothing for your clients who were convicted after 2005.
Unfortunately, the State has the right to impose a punishment so long it’s prospectively applied. So long as it gives notice of the consequences when a qualifying offense is committed.