Why is the Registry Punishment?
I can’t believe that we are still having to answer this common sense question. Isn’t it obvious?
Apparently to the judges of the 10th Circuit Court of Appeals, who recently overturned a lower court’s decision that the registry was cruel and unusual punishment, it’s not so clear. Neither was it clear to the judge in the Southern District of Florida who felt that forcing people into homelessness due to Miami-Dade county’s harsh residency restrictions isn’t punishment either. Incredible given that two of the original defendants on that case had died homeless on the streets of Miami by the time the Court heard the case. How is this possible?
Well what is common sense to us isn’t necessarily common sense to a judge. We must remember that judges, like all of us, live in their own world, socialize with their own friends and exist in their own preconceived notions about society, crime and the law. In other words, they have no clue what’s it like to live one day in our shoes. If, just for a week, one judge could have his name, photo and information listed on the Florida Sex Offender Registry, make him go out and find a job, a place to live while raising two kids or try to find a partner to spend life with, then have him come back and make the decision as to whether or not the registry is punishment. Wouldn’t that be glorious?
Residency restrictions, going to our kid’s schools, having a shot at keeping a job, finding a place to live, going to church, all of these things can continue to be denied us because our presence on the registry isn’t punishment. This is hogwash. You know it but the Court’s don’t see it because apparently we have yet to make our case crystal clear.
In an effort to do that we want to compile a list describing in detail the punitive effects on a registrant, their family, friends, employers and others in their lives, experienced living a lawful everyday life. Please include your experience in the comments below. Be specific and we will compile your comments for a “master list” of the punitive effects of the registry. Also remember that this is specific to our presence on the registry, not the criminal conviction itself nor any hardships as a result of probation requirements. PLEASE only list events that happened to you, not commentary.
Judges don’t know what they don’t know, so we have to tell them. We look forward to your comments.
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CMC:
There are also privacy laws which vary from state to state. People have been successfully sued for publishing truthful information. In the context of registrants, you have to be patient until that issue is addressed in court. My sense is that the Florida registry will eventually get sued by an out of state registrant removed from that state’s registry.
Yes. I believe one of the Does in Alaska was finally given relief from Alaska State supreme under that States privacy law which is stronger than Federal. But it was “as applied” to Doe.
There is a lot of misinformation in this post by the various posters.
The ACLU filed Does v Snyder in 2014 and Does became final in 2017. It took the ACLU 3 years to get a final decision. The Oliver Law Group filed Does II in 2018 and we expect a final order in 2021 or 2022. Getting a final order usually occurs within about 2-4 years after filing suit. Getting a TRO can be had in days but in these cases usually take 3-6 months.
The registry in Smith was determined to be civil in nature in Smith. The Ex Post Facto provision (according to the U.S. Supreme Court) does not apply in the civil context. As FAC pointed out, they can appeal to the 11th Circuit Court of Appeals. This is a very tough circuit for any criminal defendant and certainly worse for registrants. They can also file for a rehearing in district court. If they can tweak their argument, they may have a winning argument in district court.
You have to remember that there were various state and federal court decisions in Michigan that found various aspects of the registry unconstitutional. Only a small portion of these various issues can be cured by the Michigan legislature. The fact remains. The vast majority of registrants whose offense date predates July 1, 2011 must be removed from the registry and there is no law that Michigan can pass to put them back on the registry.
It is difficult to make a determination if registrants whose offense is between October 1, 1995 and July 1, 2011 if they are required to register or not. The fact motion alone in Does I was 269 pages and is available free on SADO’s website. You have to remember that there are multiple lawsuits spanning well over 1,000 pages, if not 2,000 pages that must be read to make a determination if a person is required to register or not.
Getting to the point of publishing truthful information. There is very significant case law where people have successfully sued persons who have published truthful information. There are even more rights to privacy under state laws and constitutions. Michigan limits the publication of MDOC offender information to 3 years and after that, removal is mandatory and automatic.
MSP public registry website lists many thousands of people who offended prior to 6/1/2011.
“The fact remains. The vast majority of registrants whose offense date predates July 1, 2011 must be removed from the registry”
“It is difficult to make a determination if registrants whose offense is between October 1, 1995 and July 1, 2011 if they are required to register or not.”
Scratches head.
Must of the successful case law that I have come across concerning the right to petition removal from the registry applied only to those whose cases predated the AWA. It’s my understanding that for those whose convictions occurred on or after AWA would remain on the registry.
As for Michigan I’m very confident the State legislatures will find a way to lawfully apply the AWA. They may offer instant relief for those whose convictions predate AWA. There’s big bucks to be lost if they don’t.
If as you say the petitions are over 1,000 pages there’s probably much more being argued here than just ones status on the registry.
Why the Registry is NOT punishment was made abundantly clear by the US supreme court in Doe V Alaska in 2005. A conviction of a felony is public information and the mere distribution of such public information is NOT punishment.
At the time of its decision it noted that there was no in person requirement, that those required to registered were free to change jobs and residencies as other citizens and not unlike all other citizens, the registered citizen was required to update any change in residency with the DMV within 48 hours. Finally, depending upon ones situation and after a certain amount of time, it allowed the registered citizen to petition for removal.
All the other nonsense that followed, Residency restrictions, in person requirements, “Moving the Finish line”, all of this resembles Probation, in fact because of the harsh penalties imposed for violating any of these requirements makes them more punitive than probation.
As far as I’m concerned and the way I interpret the findings in both Miller and Alaska is that there may not be a “Right to live where you want” but we are free to change residencies as other Citizens. (Or should be)
“JZ on November 25, 2020 at 11:50 am
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So is all this irrelevant now that we’ve lost the ex post facto case?”
So is all this irrelevant now that we’ve lost the ex post facto case
How do you know we’ve lost? It took Michigan ACLU 10 years to get the court to enjoin that state’s registry laws. We are eight years behind them.
Dismissed = Lost
What can we do? Appeal to SCOTUS?
First – there are several steps and we will know which ones the attorneys have taken within the next 4 weeks.
Second – there is an intermediary court between the district court and the SCOTUS, which is the Circuit Court of Appeals.
Maybe I won’t become a lawyer…
If I’m not mistaken, there was something about the statutory language in the Michigan case that probably will be corrected by the State legislature sometime in the future. There is no way the dissemination of public record information alone violates the ex post facto rule or is punitive in nature notwithstanding how “WE” feel. Our convictions are a public record end of story.
Now the rest of it, in person requirements, residency restrictions, internet access etc….are punitive and a different animal.
The requirement to register in person and all other in person requirements are a restraint on our liberty. Address verification visits by law enforcement violates our “Right to be let alone”. Restrictive internet and other social media access laws applied to those released from supervision violate our right of association and freedom of speech and the list continues on. Herein lies the battle.
The registry, as a stand alone public notification tool used to disseminate a public record of conviction, is here to stay.
Underlying charges that have been formally removed/expunged by trial judge are still listed on public registries under the guise that it still stands as a current conviction. It’s clear attempt to alter the true record, thus all the fallout from public notification voids your status as not guilty of any crime.
Everyone knows it is punishment. If they did not know it was punishment then they would give it to everyone..Why don’t they give it to everyone? Because they know it is punishment..
The more accurate question and the one No one can answer is , Why should they care that it is punishment when so much money can be laundered through, so many crimes can be covered under it and so many sheep directed using it?
The only way to ever stop it is to convince them it is not a useful tool for elections , finances, and manipulations.. Have fun with that..