Tuesday, February 8, 2011

Time To Revisit Ex Post Facto Clause For Sex Offenders

Scores of folks have sent me emails generated by a group called Citizens for Change. They want me to hear their cries for justice, and to sign on to the fight to have the courts declare retroactive application of the federal sex offender registration act unconstitutional. My first response to the emails was a weary sigh. The ex post facto clause is tricky, and most folks don't get just how it has been gutted by the courts.

The last time the federal Supreme Court heard an ex post facto challenge to sex offender registration was in 2003, involving an Alaska decision. The Smith v. Doe decision ruled that requiring a convicted sex offender to register as an offender is not a violation of the ex post facto clause of the federal constitution even if the registration requirement did not exist at the time a person was convicted.

The ex post facto clause prohibits lawmakers from passing laws that impose or increase punishment for criminal offenses after the acts are committed. But the law applies only to criminal laws, and not to civil laws. Most courts reason that registration requirements are not punishment, they are mere incidents, or consequences, of a criminal conviction. The purpose of registration, these courts say, is not punitive; registration exists merely to protect the public, and are civil in scope and purpose.

This is, of course, threadbare nonsense to the 700,000 or so folks required to register throughout the United States. These folks are publicly identified as pariahs long after they have paid their debt to society by way of the criminal sanction.

A recent article in the Fall 2010 edition of the Northwestern Journal of Law and Social Policy, Putting the Brakes on the Preventive State: Challenging Residency Restrictions on Child Sex Offenders in Illinois Under the Ex Post Facto Clause, by Michelle Olson, is a model of the sort of pragmatic scholarship that litigants can put to use in test cases. Olson argues persuasively that traditional arguments about the ex post facto clause are losing their persuasive force as lawmakers yield to moral panic over sex crimes.

Focusing on recent changes in Illinois law imposing residency restrictions on those convicted of child sex offenses, Olson paints a portrait of a body of law that grows without constitutional constraint. Lawmakers are quick to pass new legislation, fearing the reaction at the polling place if they should appear to have cold feet about isolating sex offenders of all sorts. It matters not whether an offender is convicted of violent rape or public indecency, lumping all offenders into one group and then dumping them into seeming virtual concentration camps is all the rage among lawmakers. The courts, it seems, are content to let this occur, relying on old and ancient understandings of the ex post facto clauses in the federal and state constitutions that regard registration as a mere civil incident to a criminal conviction.

But there is hope, Olson nots. The Supreme Courts of Kentucky and Indiana have recently ruled that retroactive registration requirements cross the divide from mere civil consequences to something akin to penal laws. Although the public rationale for registration is protecting the public, a registration regime that fails to distinguish those likely to cause harm from those who do not is irrational. What's more, these statutes sometimes require folks who were never even convicted of a sex offense to register. And what of the folks who are forced from family homes and support because they live too near to a school? Is it sound public policy to render folks who have served their sentence homeless?

Olson's article opened my eyes to broad new possibilities in the fight for sensible sex offender registration laws. It is my understanding that Louisiana's Supreme Court has also declared retroactive registration to violate the state's ex post facto clause. The federal Supreme Court's recent decision recognizing the importance of the collateral consequences of a conviction for non-citizens in the Padilla case also suggests that the high Court may be prepared to recognize that the line separating criminal and civil laws isn't as bright as was once thought.

States are often regarded as laboratories by the federal Supreme Court. Lawmakers in the fifty states experiment with laws and legal doctrines often well before an issue reaches the United States Supreme Court. If three state Supreme Courts have found reason to regard retroactive registration requirements as offensive since Smith v. Doe, there is hope additional states will follow suit. In time, there may well be grounds sufficient to return to the United States Supreme Court with a case testing new federal registration requirements.

To all those who have written urging me to take a look, thank you. I have done so. I'm in. SOURCE

10 comments:

  1. Once upon a time, Uncle Sam decided he wanted a data bank full of information on ex-felons. The problem was that he had no data to fill his bank. It would have been very expensive to contract with private enterprise to collect and supply the needed data. That would have been a tremendous financial burden on law enforcement as well. So, Uncle Sam decided to impose a duty of self-reporting on each ex-felon, at the ex-felon's own expense. This worked well but Uncle Sam was not happy. He wanted more information and more power. At the suggestion of special interests behind some celebrity elite, SORNA was enacted to require sex offenders to routinely supply Uncle Sam with verified data, current within a [48] hour margin of error, in perpetuity. The data was published on Uncle Sam's website and the public clamored. Private enterprise scraped the data from the website and redistributed it for profit making purposes. Law enforcement rejoiced. All were happy except for the exploited offenders, some of whom died in the service of good ol' Uncle Sam. This all occurred in spite of the 13th Amendment's prohibition of involuntary servitude and the 20 year penalty for forced labor in the Federal Criminal Code. If you don't think the service ex-felons perform for Uncle Sam is labor, I suggest that you call up and order a pizza. When the pizza delivery boy gets there, debate the question with him (or her). If you remain insensitive to basic human rights at issue, I can only hope you take the pizza without paying for it and the police explain it to you while arrested for kidnapping and robbery.

    Every elected and appointed official who sponsored, supported, upheld and enforces SORNA in disregard of the 13th Amendment, the Federal Criminal Code and the Forced Labour Convention of 1930 should be impeached, removed from office, tried, and imprisoned upon conviction of kidnapping, forced labor, robbery and … felony murder.

    Stop the Exploitation. Demand Restitution NOW!

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  2. I was 17 had a girl friend that was 15 I turned 18 and three days later was charged with unlawful voluntary sexual relations and indecent solititation under the Romeo and Juliet laws in Kansas I did not have to register with the plea I took but when I got out they said I had to register for ten years one yr before my registration was suppose to be over I moved to Missouri and was informed I had to register for twenty five years if I didn't I would be charged with a new felony and made to do more time than my original crime that is not a civil punishment that is punitive they never put me back before a judge which violated my right to due process i have never failed to register nor have I reoffended I have been married and have two wonderful children I'm not making excuses for my past but I do believe my rights have been grossly violated 417-483-1001 for any assistance thank you

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  8. I am carissa from USA, i want to share a testimony of my life to every one. i was married to my husband, i love him so much we have been married for 6 years now with two kids. when he went for a vacation to France he meant a lady called Marian, he told me that he is no longer interested in the marriage any more. i was so confuse and seeking for help, i don't know what to do until I met my a friend of my and i told her about my problem. she told me not to worry about it that she had a similar problem like this before and she introduce me to a man called Dr.swami from indian who cast a strong spell to bring him back to her after 3days. then my friend ask me to contact Dr. swami. I contacted him to help me bring back my husband and he ask me not to worry about it that he is going to bring him back to me within 3days. He also told me by three days he will re-unite me and my husband together. After three day my husband called and told me he is coming back to sought out things with me, I was surprise when I saw him and he started crying for forgiveness. Right now I am the happiest win this world,if you need any restore in your relationship contact Dr. swamitemple@yahoo.com He is the best spell caster i have ever seen on earth for what this great spell caster did for me and my husband, you can contact Dr.swami on any problem

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  10. My name is Sonia and I live in NY. i had problem with my ex boy friend some months ago. he was cheating on me which hurt me badly,and he was also avoiding me,He no longer picked up my calls.I was totally confused cos i didn’t know what to do. So i was surfing the internet for love spells to get him back and I saw Papa ogbefispell@gmail.com’s Youtube Video Testimonials. I knew I had to contact him and get him to help me. So i contacted t and she told me to order a consultation which I did. He told me everything, as if he had been there. The reading was simply amazing, I didn’t really believe in psychics, but after the reading, I knew psychics were real. And he told me that I needed some spells, so I did what I had to do to get them done by him. To cut it short.My ex boy friend gave me a call and said to me that we should have a date,i agreed.On the date,He was begging me to have him back and i agreed we are now together again,. Thank you Papa ogbefispell@gmail.com for rescuing my relationship…..continue your good work

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