Can Smith v. Doe be overturned?
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!
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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.