Yesterday, the Supreme Court of the United States heard oral argument in US. v Haymond (for more information about the case reference our post last week) and apparently it went very well.
According to Supreme Court blogger Amy Howe all Justices seemed to side with the registrant, who argued that you can’t be “convicted” for a probation violation for which you receive additional time without the right to a jury trial and having your charges proven beyond a reasonable doubt.
You can read the transcript of the oral arguments here.
Right out of the gate, it seems Justice Sotomayor asks the pertinent question, essentially; can we ‘permit imprisonment by a preponderance of the evidence?’ It seems the answer to that question will likely be NO.
Do you see what I am getting at? Look at this, please: https://floridaactioncommittee.org/pa-sorna-registration-equal-to-being-in-custody/
So, if we are considered (at least by one judge in PA) as being “in custody” because we must register, then it follows that we are “on supervision”, and it follows that we were not afforded due process before being placed on that “supervision” or “custody”
I believe we must use this angle to attack, legally.
That was the whole big deal with the Snyder case and some federal courts echoed the same things. There is 1 ) no due process, there is 2) no risk assessment and 3) state sora’s are like being on probation, or better said, it’s an ” extension ” of probation ( which IMHO, is exactly what SORA registries are )
The crux of the Snyder case was decided on those factors. Here is a little piece from it from the 6th circuit decision on Snyder :
” In a unanimous opinion, the Court of Appeals decided that retroactively imposing punishment without individual risk assessment or due process violates the Constitution. The court noted that the 2006 and 2011 SORA amendments added geographic exclusion zones, imposed strict new reporting requirements, and extended registration up to life for the vast majority of registrants, without providing any review or appeal (with rare exceptions). The court found SORA to be more like criminal probation or parole than like a civil regulation. “
” The court found SORA to be more like criminal probation or parole than like a civil regulation. “
and that’s the most important part. It’s a lifetime criminal probation/parol here in FL. They also know that if they implement a risk assessment and let due process, their precious registries would drop in numbers significantly by the chunks and most likely by 90% or even more.
Hopefully F.A.C can used this case in their Ex post facto case as well!! Showing it is Punitive and not civil. I can see the small light at the end of the tunnel. Perhaps total freedom! After all, every other offender who completed their sentence doesn’t have to report in to Big brother.
But theyvwould skew the levels and make something like viewing cp a level 3 ….. careful what we wish for especially in a skewed environment as florida. Tiers here wouldnt eliminate the overall issue of their optics and what they want the population to perceive.
Registering as a sex offender, and being subjected to registration laws, do not in themselves constitute court supervision.
And a violation of the law is not a violation of court-imposed conditions, unless, of course, one is under court supervision.
There is a thought-provoking discussion below regarding “government” supervision. But that strikes me as a term of art that has no specific legal definition. We are supervised by the government every time we drive by a cop car, renew our driver’s license, or walk into a government building with security cameras, among other things.
This is a bit off subject, but this article brought an idea to my mind:
In my opinion, when we are put onto the registry, we are put on “supervision” because if we do not report in a timely manner, we are “violated” and sent to prison.
Can we be placed on supervision without due process?
(Further, it doesn’t not matter if such supervision is a criminal punishment or a civil sanction. It is, in either case, a form of government supervision, to which, legal jeopardy attaches.)
Yes, but courts routinely call it “regulatory” or “civil” to get around the constitutional problem of imposing punitive action. To them, the fact that it’s clearly punitive is just sheer coincidence.
But even if it is considered (wrongly) to be simply a civil sanction, it is, nonetheless, still a supervisory scheme.
Question:”Can a US citizen be placed under government supervision (be it civil or criminal) without due process?”
Certainly, we were not afforded due process.
Some good news. I hope it help someone in the present and future.