in 2003, the Supreme Court of the United States dealt us a very bad hand. The Court’s decision in Smith v. Doe, has been the foundation upon which States (and even the federal government itself) have been able to pile on additional requirements and restraints, under the premise that “the registry” is not punishment.
A lot has happened since 2003. First, a ton of research has come out disproving the “frightening and high” myth that the Court relied on at that time. And second, this “pile” of additional requirements and restraints has created what is now being referred to as “second generation” sex offender laws – a registry that has very little resemblance to the registry that existed 15 years ago when Smith v. Doe was decided.
A wave of court cases have been making their way to the Supreme Court lately, some (like Does v. Snyder) haven’t made it through the gate but others (mostly dealing with narrow issues – such as Nichols, Packingham and Gundy) have been heard. More are making their way up the ladder.
Which has prompted several to ask whether it’s even possible to overturn a Supreme Court decision.
Ordinarily the doctrine of Stare Decisis dictates that rules or principles set out in previous judicial decisions apply as precedent. An appellate court can overturn a trial court and a supreme court can overturn an appellate court. But with the SCOTUS being the most supreme court in the land, who can overturn the Supreme Court? The answer is… itself.
In 1896, The Supreme Court of the United States upheld the doctrine of “separate but equal” in Plessy v. Ferguson. It took a long time (too long) for the court to overturn that decision. In 1954’s Brown v. Board of Education of Topeka, they ruled that schools segregated by race were unconstitutional.
It is possible to overturn Smith v. Doe. We just need to get that case before the Supreme Court!
For what it is worth I never imagined the registry itself would have come to existence in my America. I therefore have trouble seeing what can happen with Smith. Maybe it is just my lack of legal knowlege. One thing I do know is that even after Brown versus Board, it took several brave women and men and many more years to further challenge segregation, before it became the law. Segregation is reestablishing itself again. What I am more concerned about is not with how the cases are going, but how the national dialogue is going. David Pakman’s condemnation of the registry is a good sign. Also good is the questioning of the carceral state by both conservatives and liberals. Without a public consensus changing public views on crime, especially sex crimes, as with the evolving opinions about gays for example, court cases will not provide the needed changes in the long run. Getting out there and engaging the public is probably the best way to help things along.
Something else I wanted to point out. There has always been a long period of time between a decision of the US Supreme Court and another later overruling it. Don’t have examples offhand, but as far as I can recall, they have never overturned a precedent until after at least the author of the overruled case has retired or otherwise left the bench.
I don’t know if that’s just coincidence or if there’s some unwritten rule or tradition of the court, but it’s reason to be optimistic, considering the author of the majority opinion in Smith v. Doe has been replaced. Just a thought…
I think that 5 of the Justices who decided Smith v Doe have been replaced now, and the remaining 4 were split, 2 for and 2 against. Since it wasn’t a unanimous decision, there is always a chance of reversal, especially since the last 15 years of statistics show that the underlying facts used in that decision were incorrect.
In Smith V Doe the court recognized that the requirements of the registration act resembled parole and probation, traditional forms of punishment but noted:
1) Registrant was free and at liberty to change residences and places of employment without restriction
2) Did not require in person registration. It was noted that at first Alaska did consider such a requirement but dropped the language from its statute.
The Court can simply re affirm these two factors, which in my humble opinion, is why the Court found in its 5/4 decision that the registration requirement by its self did not violate the ex post facto clause.
Did it again….Itself
I don’t see why our Spouses can’t sue along with for our children. When I accepted my plea in 98 I didn’t know what the registry was, I was told id have sex offender probation thats it. I knew no-one with the internet there were no smart phones. When I was released I started a family and carrier, id have lunch at my kids school and coach. Little by little our lives have diminished. Vacations 5-6 times a year was what we lived for and worked for our kids are grown. Now we can’t do that. If I travel to NY I have to register temporary residence at the hotel “upon arrival” how do I know if its approved, 1000′ from a school, bla bla bla bascically theyll kick my ass out. My wife and kids are now my victims. What about victims of statuary rape? I wonder how they actually feel about the registry mine doesn’t want it for me we were kids she wrote me after she turned 18 in prison and we dated a while off and on. She passed away but I know shed be devastated over it. (6 weeks out of Romeo so don’t bother)
This is a very valid point. Spouses and children SHOULD sue!
yes it can be overturned as it was created to “protect the public” but now they are making lists like this:
http://www.aroundosceola.com/news/osceola-county-approves-animal-abuse-database/article_245486fe-e433-11e8-b037-47edcfce56ab.html?fbclid=IwAR216yKj7DJd1fT0ABnrmQXohdZf26LAEmjH6SYeduno6fhsoFNvxhazZw4
tell me since when can animals read? access to the internet? this proves it is about shamming!
Millard v. Rankin is one of my favorite rulings and Judge Matsche’s opinion was a refreshing one to read. This is an important case to watch for and interestingly, the 10th circuit is Justice Gorsuch’s old stomping grounds and may well work itself up to knocking on the door of SCOTUS.
The 10th circuit posts their oral arguments 48 hours after the hearing. Hopefully they post this case to hear its oral arguments.
https://www.ca10.uscourts.gov/clerk/oral-argument-recordings
Mary thank you. I will be looking out for the oral arguments if the 10th circuit does go ahead and post it on their site. The attorney for the case seems to be on top of it and expects the case to be heard by SCOTUS.
I think its comical that all the Attorney Generals from the states in which the 10th circuit represents are filing their own briefs to oppose Judge Matsche’s ruling – Pathetic!… I hope this really goes our way.
Alex, all the attorney generals filing their briefs for this case shows how important the Millard v. Rankin case is and how much of an impact it will make, which is why NARSOL filed their own briefs themselves. Here is a link to their amicus brief.
https://narsol.org/2018/07/breaking-news-narsol-files-amicus-in-colorado-case/
Personally, I don’t think the 10th circuit will uphold Matsche’s ruling, but that is good, because the attorneys for the plaintiffs will appeal to SCOTUS if that happens as they mentioned that they expect this to be requested to be heard by SCOTUS either way. I would rather it be us making the request.
I like Judge Matsche’s opinion because it is straight forward. The registry is cruel and unusual punishment and unconstitutional in its entirety. Can’t get a message across more direct than that.
There is another method for Smith versus Doe to be overturned and that is to file a Petition for WRIT of ERROR CORAM NOBIS the logic and methodology for filing this was discussed in an article on SOSEN in June of 2015 http://sosen.org/blog/2015/06/17/time-to-file-a-petition-for-writ-of-error-coram-nobis-in-smith-v-doe.html basically when the court is lied to or given false information. Writ of error can be file forcing the court to re-examine their decision and as pointed out in the article Chief Justice John Roberts would have to exclude himself since he is the one that brought the false information to the court as the solicitor general. There is also the fact that there was a study done as is mentioned in the article in the 1960s that tracked offenders for 15 years with an overall re-offense rate of 2/10 of one percent in any given year, this was a qualified and bona fide study that was included in the Furby Weinraub and Blackshaw analysis of treatment programs in the 1980s quite obviously this along with other information prior to Smith versus Doe shows that there was no high re-offense rate
You can’t “force” the US Supreme Court to do anything. If you could, it would have already happened. The Justices already know what the true recidivism rates are. They are all lawyers. They know how to argue points to suit their desired outcome. Recusal is an individual decision that Justice Roberts would be unlikely to make. They aren’t going to rehash an old decision. The only way it will be overturned is if a newly brought case is decided that makes it necessary to overturn precedent.
from ACSOL
⭐⭐⭐ This Registry-related case has been distributed to the SCOTUS Justices for consideration at the November 30, 2018 conference:
http://www.scotusblog.com/case-files/cases/boyd-v-washington/
Boyd v. Washington argues
that registration is punishment when applied retroactively. (Of course, we know that registration is ALWAYS punishment!) Let’s hope SCOTUS decides to “grant it certiorari” (accept it for hearing). 🤞
In Alleyne v. United States, 570 U.S. ___ (2013), the Supreme Court overturned Harris v. United States, 536 U. S. 545, because they found it unconstitutional for a sentencing judge to determine a minimum sentence by using facts other than what the jury found, or the defendant pleaded to. Big case as applied to Michigan. In my case, I got a 12 year minimum sentence. If my judge had only considered the facts in the indictment that I pleaded guilty to, my minimum would have been 3 years. The ruling was too late to help me, but they do overturn precedent from time to time.
thanks this is a great case
Personally, I like to be cautiously optimistic. Yes, all the data is there for SCOTUS to reverse Smith v. Doe. There are tons of studies showing how “frightening and high” was wrong, ineffectiveness of the registry and its restrictions, ex post facto issues, and so on.
Pretty sure also that the government will have a hard time countering that data. I’ve watched a handful of debates and see that the pro-registry side’s argument is almost entirely complaining about the horrors of sex crime in general, a handful of high profile cases, and screaming “for the children!” Noticeably absent is any stats or studies showing the effectiveness of the registry or associated restrictions.
On the other hand, there’s so much money involved in the registry now, I don’t think SCOTUS ever will strike it in its entirety, as they should.
This is exactly the point them stating the horrific cases and linking 26k men ever ready todo the same thing providing there is no registry is a mockery of power and damaging beyond repair to our family’s. Perhaps the crime should fit the punishment. Is this why like DUI is a misdemeanor until someone is killed? 10,000 killed to keep the courts fat? How is a years probation gonna prevent a guy from traveling to get sex from a 14 year old that is a loner and will travel anywhere to get anything? This is a joke.
It just boggles my mind that you guys keep relying on this totally biased court system to keep hope alive that they’ll actually make things easier for us. It’ll take years if not decades and all the while we’ll still be forced to suffer under the brutal ever changing laws they pile on against us. Screw the court system and just live you life and do whatever the hell you want. We will never get total relief of our situation no matter how much we yell and scream. Ever.
MJ – as you’re typing your comment. Recall the Internet Identifier challenge that provided the freedom to type it.
Nobody is giving up. We’re digging in and fighting harder.
In answer to your question, can Smith v Doe be overturned? NOT IN OUR LIFETIMES!
What has changed with the identifier? We still have to report identifiers. How is that any kind of victory? It’s more confusing than ever and nobody has re-written what’s on the Floriduh books in 943.0435 and 775.21. If the local yocals violate us, who has the money for a court battle to show them they’re wrong? Because that’s what it takes. The legislature continues to pass laws they know are unconstitutional. They also know 99% of us don’t have the money to fight them.
On the face, if the Court relies on evidence, it seems to be a no-brainer to overturn Smith v. Doe but given some of the recent decisions in our favor that still allude to the high recidivism rates, it may be a distant dream. That said, if we do have a chance to at lease erode Smith v. Doe, Bethea v. North Carolina (if granted Cert.), stands the best chance.
Anything is possible with SCOTUS. A case can be overturned when it is seen in a new light or perspective, and well, our issues make the perfect light ” with considerable time frame ” passed for Smith V. Doe to be overturned with all the research and evidence against it since 2003 – as stated in the post above.
The highest court usually follows ” stare decisis ” which is why most cases take a long time to be overturned ( the longer the amount of time passed, the better chance for it to be overturned ) as such was the case of Plessy V. Ferguson which was too damn long and many others like it. But SCOTUS has broken their stare decisis in one particular case:
Bowers v. Hardwick (1986 )
In this 1986 case, the Supreme Court upheld a Georgia anti-sodomy law that forbade oral or anal sex between consenting adults — regardless of the sexual orientation of either party. Through unusual circumstances, Michael Hardwick was seen engaging in oral sex with another man in his own bedroom by a police officer, and was arrested. Although the state declined to prosecute, the American Civil Liberties Union took up the case to test the constitutionality of anti-sodomy laws, and the case eventually made its way to the Supreme Court.
Homophobia clearly marked the Court’s decision to uphold the law. The majority declared that homosexual sodomy was traditionally considered an abominable and illegal practice, specifically ruling that the Constitution didn’t provide any inherent right to practice homosexual activity. Although the law in question covered both heterosexual and homosexual sodomy, the majority made it clear that the homosexual nature of the act was the key issue.
In 2003, the Supreme Court decided the case of Lawrence v. Texas by rejecting Texas’s anti-sodomy law, essentially declaring that the Bowers decision was incorrect. Justice Anthony Kennedy’s majority opinion stated, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” The dissent also specifically noted that the court was going against stare decisis by overturning Bowers.
it took 17 years for Bowers to be overturned. How old is Smith now ? 15 years old ? 🙂
@ Jack
Yes!, I believe the overturn of Bowers V. Hardwick case (1986) because of the Lawrence V. Texas case (2003) was the first and only time that SCOTUS went against their stare decisis, making it a shorter time frame than usual. ( 17 years )
I hope we can have a similar fate to this as well regarding its shorter time frame and outcome !! It’s interesting that when this was overturned in 2003 by Kennedy, Smith was being heard(2003) and delivered by Kennedy as well.
@ Debbie
Yes, hopefully Smith can have the same fate as the Bower case and be overturned and in the same short time frame. That’ll be wonderful.
Of course, the problem with getting your hopes up relying on Lawrence or Brown for that matter is that by the time that we got to 1954 and 2003, a substantial number of Americans WANTED Plessy and Bowers to go the way of the dodo. That was particularly the case with Bowers as it sanctioned the criminalization of private homosexual behavior. People lose sight of the fact that Bowers is what made the gay marriage ban perfectly legal and logical up until 2003. You can’t force a state to sanction what your highest court has already said can be criminal behavior.
Pray that they come to common sense
Ohhh yes it can. but…. I don’t think any of these recent cases are going to put the nail in the coffin to Smith V. Doe and the registry. They are no doubt pieces to a bigger picture on its way to complete a much bigger thing. The more narrow issues as you said, that go in our favor such as the Packingham, Snyder, etc. the more pieces to a bigger issue. If I had to predict and place a bet, I’d bet the Colorado case with the ruling from long time conservative Federal Judge Matsch can and most likely put the nail in that coffin for us. I would think that is the perfect case. He ruled the registry in its entirety to be unconstitutional – plain and simple (it is waiting on appeal right now I believe ) If it does make it to SCOTUS, I predict it will be a unanimous decision in our favor.
The Millard v Rankin Case (Appeal from Matsch’s court) has oral arguments THIS Thursday. See page 12 at https://www.ca10.uscourts.gov/sites/default/files/calendar/events/November_2018_Final.pdf.
And just to relive the glory of Matsch’s opinion, here it is for reference. https://www.leagle.com/decision/infdco20170901c12
@ E
Thank you for this.
@Joseph.
Links provided by E
@ E
page 11 , thanks for this though.
That is awesome. It is this Thursday at 9AM. Most likely 11AM EST.
@ Bobby, do you have a link for this case. Thanks
I believe the answer to this question may be found in Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 US 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (emphasizing that only the Supreme Court may overturn its own precedent). This leaves the door open for SCOTUS to recognize that it relied on faulty data/facts/research to decide Smith v. Doe.
There are now two justices who have been accused of sexual misconduct without substantial evidence. Whether that will help our cause is anyone’s guess.
Can Smith V. Doe be overturned ?? Yes it can. SCOTUS has overturned themselves before and I like this panel mix of SCOTUS justices now. I’m not a legal expert or fortune teller, but I have a strong feeling, that it is getting close to that considering the cases (with their briefs) being accepted by SCOTUS relevant to our issues.