Category: Episode

Listen to RM306: Putting the Jack Back in the Box After a Criminal Conviction
https://www.registrymatters.co/podcast/rm306-putting-the-jack-back-in-the-box-after-a-criminal-conviction/

Announcer 00:00

Registry Matters is an independent production. The opinions and ideas here are those of the host and do not reflect the opinions of any other organization. If you have problems with these thoughts, F Y P.

Andy 00:19

Recording live from FYP Studios east and west, transmitting across the internet, this is episode – this one is actually 306. I said 306 last time, so this one is actually the 306. How are you this evening, Larry? Anything exciting? Oh, it’s probably hot as hell over there, isn’t it?

Larry 00:34

It is indeed. And I just hit the start button after you started speaking, so I hope that you didn’t miss any important stuff.

Andy 00:41

I think it’ll be fine. I’m not making the backup to the backup to the backup. So hopefully everything works out. If not, well, we’ll figure it out. And Chance, West Coast? How’s it going?

Chance 00:51

Cool as can be. Cool as can be.

Andy 00:55

Just a nice, comfy 75 degrees as always?

Chance 00:58

Maybe even – not even 75. Maybe just 70?

Andy 01:06

(laughs) Larry, is it 70 there?

Larry 01:08

Uh, 99 last time I checked.

Chance 01:10

Oooh. Ooh.

Andy 01:14

(laughs) All right, well, make sure that you press Like, Subscribe and all that stuff so that Larry can have an air conditioner. You don’t have an air conditioner in there?

Larry 01:22

Oh, we do. It’s working this year, remember? They replaced it last summer.

Andy 01:26

Oh! Then why are you complaining about doing the podcast in the summertime, if you have AC this time?

Larry 01:32

Because I have to get to the office, and it’s 105 to get here.

Andy 01:37

Is it 105 in your car with air conditioning?

Larry 01:40

For part of the way! I park out in the driveway, and the car is blazing hot.

Chance 01:45

Wow.

Andy 01:46

You don’t have a remote starter to fire the thing up and turn on the AC?

Larry 01:50

You know I can’t afford such luxuries as that on the salary I get paid! (Chance chuckles)

Andy 01:55

I see. All right, well, okay. Anyway, so press Like, Subscribe and thumbs-up and all that good stuff. And then what else? Yeah, make sure that you go over to Patreon and support us for as little as a dollar a month, that would be fantastic. We even got a new patron tonight, we got one during the week, and I’ll announce this all at the end of the show. And then you can get on Discord and listen to us record live and whatnot. So! Larry, if you’d be so kind, what are we doing this evening?

Larry 02:21

Well, we don’t have any cases to talk about, so… But we do have some good content. I was going to talk about a complaint filed by the ACLU, I think in New York, regarding proximity restrictions, but I just didn’t have the energy. But tonight we have some listener questions to go over. One of them is from an attorney who’s married to a PFR. Another is about getting off the registry in Kansas, and this is from a person who was convicted in Missouri. And we have some articles about the power of false accusations, and we have The California Corner, with Chance Oberstien.

Andy 02:59

It almost sounds like we need to, like, have, like, a ding-ding-ding-ding-ding. California Corner! over on this side of the ring, because he’s gonna go duke it out and fight it out. That’s what it sounds like to me.

Larry 03:08

I think that’s what we need, to have some kind of theme music for The California Corner. Something that sounds …all spooky.

Chance 03:16

Yeah, that would be great. Perfect!

Andy 03:20

Well, then, shall we start with the federal supervised release?

Larry 03:24

Let’s do it.

Andy 03:25

All right. Well this, let’s see here, so, “Good evening, Andy and Larry,” – would you set this up real quick before I do this? Or is it set up here in the script?

Larry 03:32

It’s set up. You had submitted it to me from the person, and I contacted the person, yes.

Andy 03:39

Gotcha. Okay. So, um, “Good evening, Andy and Larry. I spoke with Andy on NARSOL Connections” (Side Note: Make sure you go over to NARSOL.org and go find NARSOL Connections. It’s a social media platform that’s very friendly to PFRs) “…over on the NARSOL Connections group. And he suggested that I speak to Larry.”

Andy 04:01

“I am a criminal defense attorney. My husband is a PFR on Federal Lifetime Supervision. He is currently residing at the federal halfway house here in Vegas, pending his revocation hearing. His PO is alleging SEVEN violations. And his revocation hearing is Tuesday.” — and this is Tuesday, a couple of days ago — “June 4. And he suggested that Larry may be able to assist with legal arguments, etc.” Now, not acting as an attorney, but acting as a, uh, “strategy partner”, right?

Larry 04:35

Right.

Andy 04:38

And, uh, so I understand that you did contact her, and you had a brief conversation, correct?

Larry 04:44

Uh, two hours.

Andy 04:45

That’s pretty brief for you!

Larry 04:48

Indeed.

Andy 04:49

What happened when you talked to her?

Larry 04:51

Well, I did indeed contact her, and she is amazing, for sure. She’s worked tirelessly on this case, and I’m disappointed that we weren’t able to do more for the situation.

Andy 05:07

Did she say seven violations??

Larry 05:11

Yes, she did. And I do not recall all seven, but most of them seemed rather weak. The strongest of the alleged violations is that he had accessed some naughty adult pictures on Instagram, and they offered for him to admit all seven violations and argue for credit time served already in the halfway house, pending the resolution at the PV hearing. So, as a condition for his release on the PV, he was placed in a halfway house, and was no longer allowed to live with her. And in my opinion, she properly advised her husband to reject that offer. There was no reason to admit to all seven violations. One of the alleged violations was that he was living at an address that was too close to a park. And the problem is, that address had been approved by the previous probation officer.

Andy 06:05

Let me ask you, though, about… something like that. Do you get grandfathered? Because the previous one said okay, and now this one says no? Do you have any grounds to stand on with something like that?

Larry 06:17

In my opinion, he probably would have. But the probation service notoriously changes the story, and their story, now, was that he was given “conditional  permission, provided that he didn’t violate a single condition of supervised release.” And they’re saying that, therefore, that “conditional permission” was being withdrawn.

Andy 06:45

And you mentioned “Instagram pictures.” I’m not really, like, a social media person, but it’s really hard – at least my understanding from everything that I’ve listened to, tech podcasts, all over the place – like, you can’t find nudity in these places. So how did they catch him for having nudity on Instagram?

Larry 07:07

Well, I thought the same thing because I’ve been on Instagram. But unfortunately, they stretched the definition a bit. They claimed that on Instagram, the pictures contained certain body parts that were blurred, but you could still make out it was the whatever, and the whatever, because it wasn’t completely blurred. And therefore, it meets the definition of pornography because the statute, 18 United States code, 2256, subsection two, states that he specifically cannot “view or possess images of”… and then there’s this list of everything in that statute, 18 U.S.C. § 2256(2). Chance, do you want to give those, uh, those things that you cannot, uh…?

Chance 08:00

Are you embarrassed, Larry? (laughs) Okay, I’ll do it.

Andy 08:03

(laughs) I just saw a bus coming, and he just decided to kick you into the street.

Chance 08:07

You know what? I have no problem. I… I will say this, okay?

Chance 08:13

The statute states that he specifically cannot view or possess images of, in sub (A), “Except as provided in sub paragraph (B), ‘sexually explicit conduct’ means actual or simulated (i) sexual intercourse, including genital-to-genital, oral-to-genital, anal-to-genital, oral-to-anal, whether between persons of the same or opposite sex; (ii) bestiality, (iii) masturbation, (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the anus, genitals, or public areas of any person.” How’s that?

Andy 08:49

Well, what is a “public area” of a person? Is this like, you can go to Walmart and find the “public area” of a person? – Never mind! Sorry, there’s no L in there. It’s “or pubic areas of any person.” Never mind. Sorry, sorry, sorry, sorry. That’s totally my bad.

Chance 09:05

Did I pass the audition?

Andy 09:08

You did very well.

Chance 09:09

Okay.

Larry 09:09

What confuses me about this statute, this 18 U.S.C. § 2256, is this appears to be intended to prevent the production of child pornography. And, I don’t know how this becomes a condition of your supervision. Perhaps it’s in the “behavioral contract”, which we’re going to get to a little bit later, but this seems to be quite a stretch, if you’re saying that there was blurred out images where you could have, if you studied it strongly enough, you could imagine what was underneath the blurry part because it wasn’t completely blurred out, but yet it was an adult. And this statute is designed to protect children and minors. I don’t understand how this was allowed to stand, but we’re going to have her on at some point, and we’ll hopefully get more into this.

Andy 10:03

That seems super-weird. Yeah. So do you think it’ll be next week? or… because otherwise it’ll be like, after the conference, and then who knows what’s happening after that.

Larry 10:16

I don’t know. She was having to, uh, decompress after the three-day hearing. And I told her, “In my twenty-two years of Unauthorized Practice of Law, we’ve never been allowed three days on a probation violation, to put on an evidentiary hearing.” But I talked to Chance and he said, “Nope! Happens all the time!” But I’ve never been in one where it went on for three days. But anyway, he was sentenced to three months in jail, followed by three more months in the halfway house. In addition, he’s no longer permitted to live in the house that they jointly own.

Andy 10:53

This is really bothersome. Like, seriously, so I’m just going to make the assertion that YouTube has a similar content policy to Facebook and Instagram (and I could have that completely wrong!) But you can search hard on YouTube to find anything that has any naughty stuff, and you can’t find anything “naughty.” You’d find, incredibly …close to? But not, to my knowledge, can you find anything, where anything is “shown.”

Larry 11:22

Well, that was my thing, and I don’t think that it’s fair. Not only is it not fair, it’s not constitutional, in my view, to tell a human being that you cannot have sexual urges. And for them to say that he cannot look at attractive women (or guys, or whatever he’s looking at on Instagram) and use those photos as a stimulation, as a part of their behavioral contract. I think that’s going too far. I thought we had talked about this on an episode where there was a case decided that addressed that particular point, that you cannot tell a person not to have any sexual urges, and not to look at anything stimulating. Neither of us were able to find it (in our vast trove of archives). But I could have sworn we’ve talked about it. Do you remember a case where we might have talked about that? Because I thought we had talked about such a case.

Andy 12:18

I don’t recall offhand. I do have a question for either of you two: Someone in chat said, “Does that mean just seeing a shirtless man playing basketball meets the definition?” …if that would be the thing that would be, you know, so-inclined for you?

Larry 12:37

Interesting question.

Chance 12:38

Not in my opinion, no.

Larry 12:41

Interesting question, though! If a shirtless man – I mean, there are nipples on males, as far as I know, right?

Andy 12:48

I’ve heard so.

Larry 12:50

They may not produce the same outcome, but they’re there. So what if the probation service takes the position that that is nudity, or provocative, right?

Andy 12:59

Yep.

Larry 13:00

I mean, this is a slippery slope that has no end to it. And to think a federal judge spent the better part of three days — was not the complete three days, but they were in hearing for three days — dealing with Instagram pictures with all the so-called “bad crimes” that are going on out there, all for a person who’s happily married and (hopefully) being a productive citizen. That, now, we’ve thrown him back in the clink, to spend money on him, is just mind boggling!

Chance 13:34

That is mind boggling. If you’re going to invite Anya on, I have a parallel case I’ve just handled in federal court, very similar. I don’t really know the facts of this, but it’s very similar. I’d like to be able to do some cross-comparisons when she does come on.

Larry 13:52

Well, if we can’t get her this coming week, we will get her on at some point, but she said that she was somewhat devastated by the outcome. And I can understand that, because you work so hard to try to reintegrate, and all of a sudden this stuff comes along, and it’s all taken away. And you got a six-month setback. Now you gotta sell the house. And it’s a good time to sell, but it’s not such a good time to buy.

Andy 14:19

One other point that just got brought up, “and sentencing him to banishment from his home with his wife, wtf is that?” And, I mean, I had something in my head I wanted to bring up after that, but isn’t that pretty harsh, just for, like a PV violation?

Larry 14:38

Well, I don’t think it’s all that harsh, per se, for a probation violation. But you look at the totality of this circumstance, the guy’s masturbating to scantily clad women. That’s a healthy thing to do!

Andy 14:54

You would think: if he’s releasing the demons, then he would not be out… “preying on” whatever they’re afraid of him praying upon.

Larry 15:02

You would think so. But it’s an example of our over-resourced law enforcement apparatus. If they –

Andy 15:10

Oh, there you go again, “defunding the police.”

Larry 15:12

If the probation service didn’t have the ability to bring such cases because they had heavier case loads that they had to monitor, we wouldn’t be facing this. But anytime you start talking about trying to reduce the amount of resources that the law enforcement “regime” has, the conservatives go ballistic. Now, I’m hoping that this thing with Trump, if they’re intellectually honest, they will start to say, “Well, maybe those pointy-heads have a point. Because all the effort that’s been put into convicting him is only because they have the resources to do it.” Not only because, but partly because of that. I mean, they’ve got cases going from coast to coast. And, if you don’t give them the resources, they’ll have to make difficult choices. And this is just nonsensical, in my view, that we’re spending this kind of money on Instagram pictures. Really?

Andy 16:03

Yeah. I don’t get it, really, at all. All right, moving along then?

Larry 16:07

Yes. Well, amazingly, there won’t be anybody on the conservative side of the aisle that will criticize this type of a waste of resources. You won’t hear anything about that. And that’s the sad thing about it, because we need to be dealing with the systemic problem that needs to be fixed, rather than making it a personal thing about one individual. The system is overkill, across the board.

Chance 16:33

Yeah I would say “splitting hairs” in this case, but I neglect to use that analogy. Let’s move on. (Andy & Larry laugh)

Andy 16:41

All right. Well, this is a question from Matthew, “Here’s my situation: I was charged with sexual abuse, a Class C felony in Missouri, and I received a three year sentence. I served all three years from 2003 to 2006. At the time, I was 23 years old in 2001, and the victim was 24 years old. The reason I am reaching out is that, due to a disagreement with my therapist, I was kicked out of the program about six months before my scheduled release date. Now, approaching 50, with no other felonies, I even moved from that area to another state.”

Andy 17:18

“However, I’m required to go back for court proceedings. What are my chances of being removed from the registry? Also, do you know any good lawyers who could assist me? Lastly, what is your best advice to improve my chances of being removed from the registry? Thank you for your time and support. FYP” Thank you for putting the “FYP” on there!

Larry 17:38

So, I’ve actually communicated with this person on several email exchanges, and so I’m going to read some of the stuff I’ve written to him. I said, “I’m having difficulty connecting the dots. You do not have to go back to Missouri to get off another state’s registry. In fact, Missouri cannot remove you from another state’s registry. Where are you currently located? That’s the state that can remove you. Missouri cannot.” And then Matthew wrote back, and he said, “Okay, I get what you’re saying. I am in Kansas now, but I got my case in Missouri, and I know I have to go back, even though I hate every part of Missouri. My question was, did Kansas fix the way to get off the registry? And, seeing if I didn’t finish the program, should I even try?”

Larry 18:16

So he’s saying that, “Despite what you told me, I have to go back to Missouri to get off the registry. And should I even try?” And again, I responded, “In my opinion, you should not try to get off the Missouri registry, unless you live there. Kansas is not bound by anything that is done in Missouri, in terms of registry removal. Assuming Missouri does grant your termination, that is not binding on Kansas. Kansas will have to grant you termination from their registration obligations. Does that make sense? Have you contacted an attorney in Kansas?” So, then he responded again. You want to read that? I’m exhausted, Andy.

Andy 19:04

Oh, I’ll read it, yeah. You read three sentences and you’re exhausted. All right, I’ll read it, “I apologize for not addressing your previous question. There wasn’t one to begin with. I’ve consistently adhered to the rules. After my three-year stint at MODOC in Missouri, I relocated to Kansas. It’s crucial to highlight that nearly twenty years have passed without any charges or incidents. Additionally, now at 46 years old, I simply want this turmoil to cease. I’m weary of incessantly fretting over trivial matters, such as whether I have to pay the $20 to register, or if there is a new investigation looming over me. I feel I’m beyond this.”

Andy 19:45

I mean, shoot, it’s been twenty-something years for him. “The only crime I’ve ever been involved with dates back to the charge I received in 2003.” I would tell you, Larry, I get his point. Can he file his removal petition in Missouri to get off the registry? Why? – Why! – as always, Larry, are you Mr. Doom and Gloom, and why do you have to make this so complicated?

Larry 20:05

Well, the courts are open and they will generally accept filings, so he can certainly probably file in Missouri, if that’s his wish. (Andy laughs) But I do not understand how Missouri can remove him from another state’s registry!

Andy 20:19

Are you saying that there are no circumstances where the state of conviction cannot impact the removal from registration?

Larry 20:27

No, I’m not saying that. There could be some circumstances where that could occur. For example, if a person’s conviction was overturned. That would likely be sufficient to end the registration obligation in another state. Another situation might be if a person’s conviction was not covered by the other state, except for a “catch all” provision that requires registration simply because you’re required to register any state conviction. Hypothetically, a person that was under that catch-all provision might be able to have their registration terminated, if the state of conviction ended the person’s obligation to register. But those are nuances. Generally speaking, one state can’t remove you from another state’s registration.

Andy 21:07

And what about Matthew filing for removal in Kansas? What would be, would that be an option for him?

Audio Clip 21:15

(laugh track)

Larry 21:21

(laughs) Nope! It appears that Kansas does not offer a pathway off the registry. According to the ACLU of Kansas, “For several years, Kansas lawmakers have pondered changes to make the state’s offender registry less restrictive. During the ’20 and ’21 legislative sessions, lawmakers proposed reducing penalties for failing to register, and changing some of the violent and drug-offense registration requirements. They also considered adding an avenue for registrants to petition for removal through an application process. The 2021 bill even had bipartisan support — including from law enforcement! — but it died in committee. And, most recently, in the fall of 2021, The Kansas Criminal Justice Reform Commission Subcommittee on Proportionality of Sentencing considered whether drug offenders’ information on the same public registry as PFRs should be made only available to law enforcement. The Subcommittee also considered potential changes to reduce the penalty for failing to register.” Nothing has passed so far, as best I can tell from my limited research.

Andy 22:30

All right, and I see that they also then stated, “Some legislators have wondered openly if the KORA (the Kansas Offender Registration Act) goes too far. It does. However, they have failed to act on their concerns. Meanwhile, the number of Kansans included in the registry has ballooned to nearly 1% of the state’s total population.” What do you think it will take to get change?

Larry 22:54

Well, it would take electing different people to the Kansas General Assembly and possibly to the Governor’s Office. Because if you get past the General Assembly, you gotta get past the governor.

Andy 23:03

Now do any of you care — and, anybody in the audience, does anybody care — what the ACLU has recommended for their changes?

Larry 23:09

Of course they do!

Andy 23:12

(laughs) All right, so here’s what they recommend:

• Strictly limiting the types of offenses for which registration is required under the Act.
• Reducing the length of time that people must register.
• Providing a way for all affected individuals to petition for early removal from the registry.
• Drastically reducing the consequences for violations of the Act.
• Allowing for remote registration options and other mechanisms that will reduce the impact on registration on individuals’ daily lives.

To me, these don’t sound unreasonable, but do you think they will pass?

Larry 23:48

Uh, don’t know, but looking at the makeup of the Kansas Assembly, it does not look promising.

Andy 23:56

I’m assuming they’re not very pro-criminal-justice-reform, there?

Larry 24:00

Well, it’s funny because they could be. You know, they’re under conservative domination, and the conservatives don’t get vilified for being soft on crime. They don’t generally vilify themselves. And very few liberals vilify conservatives for being soft on crime. So they have the latitude to do it. They just don’t have the will, because they’re not hearing from the people of Kansas, that they want these changes, apparently. And folks, if you’re going to vote for these people, you’ve got to communicate to them what you want them to do! And they have to hear a groundswell of public support. Otherwise they’re not going to do anything.

Andy 24:31

Larry, I think the person that wrote this letter is in chat. I didn’t – Oh, hey, this is him! I had no idea. I don’t know who anybody is, in chat. Everyone uses some pseudonym. But the person we are speaking about is in chat. And he says, “So, pretty much, I have to move back to Missouri to get off the list.” But – you could still end up – wouldn’t you end up in the same situation, then? …of still being on the registry in Kansas, potentially?

Larry 24:55

Well, I don’t know if they keep people on, after they leave, but he wouldn’t have any forward obligations. You know, we had that debate about, years and years and years about, whether being on a website is the same as being required to register. And some people think it’s the same thing. I think it is not anything approximating the same thing. So if Kansas is one of those states that keep people on the list, he might find his image on the website, but he wouldn’t have any obligations or any consequences in terms of potential punishment for not complying.

Andy 25:22

And then is Missouri “pseudo-like” Florida, and leaves you on their website, infinity? Or is he still actually on the registry in Missouri?

Larry 25:33

Well I don’t know the answer to that. But Missouri does have a pathway off, I think. And that’s what he’s looking at. He wants to file in Missouri, but Missouri can’t help him. If I’m the responding party in Missouri, I’m going to say “He’s not registering because of us. He’s registering because of Kansas (because I don’t want to do any work, and neither does anybody else.)” So they’re going to try to extinguish the petition. And he may be able to bypass that, and claim that he has a viable need to have a decision from Missouri. Okay, he spends a whole bunch of money and time. He gets a decision in Missouri saying he’s no longer required to register. That didn’t do nothing for Kansas. So, he’s in the same position, only he’s broke-er!

Andy 26:16

(sighs) I don’t comprehend the whole Missouri part of the equation. If he doesn’t live there, then why would he have to go back to Missouri to get any relief?

Larry 26:25

Well, he doesn’t have to. He was under the mistaken impression that that was the only way off, because he doesn’t have a way off in Kansas. So, in his mind, he wants to go back and file the petition where they have a removal process. And he doesn’t connect the dots completely, that even if that were to succeed – I would do my best, if I were representing Missouri, to say “Don’t bother us with this. It’s not our problem.” but he believes that if he were to get it done, and get an order from Missouri — he believes he could go wave that around the country, apparently, and say, “I don’t have to register anymore.” But that’s just simply not the case.

Andy 27:00

Because Georgia would be a place where, if you move in, and you are registering somewhere else …then you have to register in Georgia. Whether you’re on supervision or not, if you are required to register somewhere else, then you register there. It’s not worded as, “if you have a conviction.” It’s worded “if you are registering somewhere else” (like Florida).

Larry 27:19

So, but in some instances, if that’s the only reason — like say, in Georgia, if you moved to Georgia and they didn’t cover your offense, but for the catch-all provision, and you were able to overturn that conviction, or get that conviction nullified — then Georgia (or whatever state) might be willing to take you off, if you’re only registering because of a catch-all provision. But that’s not the case. Most sex offenses translate to something, because they have loose enough language that says “substantially similar elements.” Very few states have the language we have in New Mexico, that says it has to be an “equivalent” offense. And I tell attorneys that don’t seem to understand the difference, “Substantially similar is not the same protection as equivalent. If you look at the dictionary definition, equivalent has different requirements than substantially similar.” Chance, would you agree or disagree with that?

Chance 28:13

I’d agree with that. Yeah, there is a distinction.

Larry 28:17

(laughs) So, if you were trying to make an argument, would you rather be fighting for someone who had the protection we have, that it has to be equivalent? Or would you rather be fighting where it says, “if the offense has substantially similar elements”? Which battle would you rather be in? I would rather be in the equivalent.

Chance 28:33

Well, certainly, certainly.

Larry 28:36

So, he may end up, if he files in Missouri, getting an order of removal, but that will be of no benefit for him outside of Missouri.

Andy 28:51

Very well.

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Andy 29:41

I am going to move over to this. I’m going to play this in the background, Larry. Just the video will be going, but I’m going to follow the script because I didn’t have any time to make the clips. This is a story from ABC Channel 6 in Philadelphia, and it says, “We reported on this case a month ago, and tonight I spoke with the attorney who represents the man who was accused of attempted rape and kidnapping in this grocery store parking lot. That attorney tells me that the woman’s story ‘never added up’ and that an update in the case is ‘better late than never.’  Forty-one year-old Daniel Pierson is home with his family tonight, out of jail, after the Bucks County D.A. says he was wrongly accused of attempted rape and kidnapping.”

Andy 30:29

This is the woman who accused him of those crimes: Twenty year-old Anjela Urumova. “Police in Middletown Township said Urumova called them on the night of April 16th, claiming a man grabbed her in the parking lot of the Redners off Lincoln highway, and attempted to pull her pants down while he carried her, and pulled her back toward his truck. Urumova said she was able to break free, and then he drove away. Police used a license plate reader system that spotted a similar truck nearby, they tracked it to Pierson, and he was held at the Bucks County Correctional Facility on one million dollars of bail.” This is terrible! Well, I guess it would have been terrible if he’d actually done it, but that’s not what happened.

Larry 31:13

Yes. A new complaint now states that “Daniel Pierson was charged with multiple felony offenses and remained incarcerated for a total of 31 days before Urumova admitted to her lies.” The police and DA deserve credit for continuing their investigation. Normally, when they put a person in cuffs, it’s so easy just to say, “We got it.” and, you know, “Victims of sexual assault, any type of sexual offense, they don’t lie. They don’t create stories. If they say it, we don’t need any further investigation, because that’s just re-victimizing them.” Andy, I don’t know why you can’t understand that! (Andy laughs) But anyway, the police in that part of the country and the DA deserve credit for continuing the investigation. Because otherwise, this man would be still sitting in jail, and possibly facing a long term of incarceration.

Andy 32:11

The new complaint states that, “Shortly after his arrest, officials received information from Pierson’s family that warranted further investigation. So detectives reviewed surveillance video and found that at no point in the video did Pierson’s truck travel through any part of the path Urumova claimed the vehicle took. Urumova was also called to the DA’s office for questioning last Thursday, and because of more inconsistencies in her story, she was called back in on Friday. That’s when,” the complaint states, “Urumova admitted that she had lied about the entire incident, and that no assault occurred.” This is disgusting! Why would a person do such a thing?

Larry 32:48

Well, you know, I get that question all the time when I’m lobbying. People say, “Well, Larry, why would people make false accusations?” And I say, “Well, there’s a whole litany of reasons: They could do it because they don’t like a person, they could do it in custody battles, they want to discredit their spouse for custody reasons. They can just do it for outright meanness.” So I don’t have any way to explain why this woman, this twenty-year-old, did that. But, in her own words, she stated that, quote, she had seen Pierson in his truck before in the parking lot of her old job, and he was “quite creepy”.

Andy 33:25

Creepy! Creepy.

Larry 33:26

Yes, creepy. Now, that doesn’t seem like enough of a reason to accuse someone falsely. There’s never enough reason, but a person looking creepy? If we went around making up criminal accusations on people that look creepy, that’s all we’d be doing! All charges against Pierson have been dropped, and now Urumova is facing charges herself. She’s currently in jail, and due back in court sometime later this month. Can you finally admit that this is funny??

Andy 33:59

No, this is anything but funny! Like, I mean, how long did he spend? 30, 31 days in the lockup? That’s not funny.

Larry 34:07

But it’s funny that she’s in jail now, isn’t it?

Andy 34:10

I mean, I guess that would be …karma? But anyway, what do you think will likely happen to her?

Chance 34:19

Well, making false police reports is generally a criminal offense in most states, either a felony or misdemeanor, in this case, including Pennsylvania. Under 18 PA Consolidated Statutes section 4906 [18 Pa. Cons. Stat. § 4906] makes it a misdemeanor to submit a false police report, a complaint, subject to fines and jail time. How long will she stay? Probably not long. A misdemeanor just, you know, doesn’t do it.

Andy 34:48

Doesn’t that even have a maximum of a year?

Chance 34:51

Well, misdemeanors are different, some are up to six months, some up to a year. But let’s just say that this is six months, tops, and she gets half-time, you know, three months.

Andy 35:07

And then we have, moving over to another similar story that comes out of Colorado where a woman made false accusations. She was sentenced to serve four years in prison. Now, is that appropriate punishment? Look, in my mind, if you have then falsely accused somebody and they spend… 31 days in the lockup, and like, four years? I don’t know that that’s enough time! Come on, man.

Larry 35:32

Well, it’s hard for me to say, but let me tell you a little bit about this. We’re not going to spend a lot of time on it, but what happened was that there was – this is in Colorado, in a suburb of Denver. I don’t remember the particular suburb, but the police chief and a city councilor had gotten in a public dispute about policy, which is quite common, and the city councilor chose to criticize the police chief. And this woman who worked for protective services in Colorado, for child protective services, and she says, “Well, I’ll just cook his little goose,” and she submitted a false report about the police chief. And it did not go well for her. She was sentenced to incarceration for that false police report.

Larry 36:31

Four years is an awful long time. I would have to know what any of her criminal history was like, and what type of diversion options might have been appropriate, but I’m not for extremely harsh sentencing. But, on the other hand, we need to send out some deterrents of causing false police reports to be made, and causing someone to be subject to this type of — I mean, it’s awful to be arrested! — Can you imagine the guy in Pennsylvania, what did everybody think about him? He was in jail, he was in danger of being killed, he probably lost his job, lost all of his friends, because they thought he was a rapist!

Larry 37:17

They showed his picture, of his truck and everything on TV, and then it turned out that it was all made up. How does he get justice? How does he get redemption? How does he fix his life? He’s got an arrest history. What is the opportunity for expungement in Pennsylvania? And even if he gets an expungement, the FBI never expunges anything, so it’s always lurking beneath the surface there, for criminal justice agencies to say, “Oh!” — if he were to have a minor arrest, say, moves around the country to Idaho, and he gets arrested for something. The first thing the pre-trial services is going to do when they run the background — “Oh! Well you were arrested in Pennsylvania in 2024 for rape and attempted kidnapping!” (or whatever) “Well, those were dismissed.” “Oh, but you were arrested for it.” I mean, that affects bail decisions, does it not, Chance?

Chance 37:57

Oh, it does! And that’s why it’s so important that, if there is a “factual innocence” aspect of any statute within that state, that you take advantage of that. Because otherwise it’s going to be exactly as you say.

Larry 38:10

So I’ve sat in what we call “felony first appearances,” I’ve sat through those many times, in our professional career here. And when they call a case to set conditions of release for a person who’s been arrested, the pre-trial services have done a background report, and all that is read by the prosecutor for the judge. And the judge listens to those previous arrests, any no-shows in court, any failures-to-appear, in determining what kind of conditions can be fashioned. And if this man has a sexual arrest on his record, and it cannot be removed, it’s going to be potentially a problem for him down the road. So there needs to be some kind of way that this woman is held accountable for that. It’s not funny at all.

Andy 39:04

Not funny, you said, “I think it’s funny.” Not funny!

Larry 39:07

Well, her being in jail is funny.

Andy 39:09

Not for her, either! She could die there as well. And I don’t think that what she did is deservant of the death penalty.

Larry 39:17

Well, he could have died a lot easier than she could have, for the type of allegations she put on him. He was much more in-danger than she is.

Andy 39:24

I won’t disagree with you, but that doesn’t mean that there’s not a riot that goes out, and all of a sudden that you end up with a shank in your gut.

Larry 39:32

So, not funny. All right. Not funny.

Chance 39:35

Yeah.

Andy 39:36

California Corner! Take it away, Mr. Chance, in that corner over there. Ding-ding-ding!

Chance 39:39

Okay. In The California Corner, we’re talking about Putting the Jack Back in the Box. As I listened to the questions and thought about this, it’s really relevant in terms of everyone, and for California, it’s really important. So putting the jack back in the box is really talking about how you get your life back together after conviction. And I’m going to put it in the context of, say, a conviction for a crime involving a sex allegation. So everybody knows this (in California, and I’m not sure about the rest of the world, but) there is no Department of Rehabilitation in California.

Chance 40:22

And by the way, gentlemen, if you want to jump in and ask a question, anytime, I’m always open for one. Okay?

Larry 40:29

I got a question for you right now. You said there’s no Department of Rehabilitation. I thought it was The California Department of Corrections and Rehabilitation!

Chance 40:37

Uh, heck, no! That doesn’t mean anything. As you know, theories of punishment change now and then. We have never been a state with rehabilitation as our main purpose. It’s punishment. And if I haven’t said it, again: it’s punishment, and I’ll say it a third time: It’s punishment! There is no Department of Rehabilitation (and the Department of Corrections is a misnomer), so that should clear up that little thing.

Chance 41:08

Now, to achieve rehabilitation for a criminal conviction in California, you must rehabilitate yourself. And a lot of folks will ask, and it’s important that they do, When does the process start? Because that is a very smart question. It has universal application, but let’s start at the pre-plea: What is pre-plea? This is what happens before you plead guilty or no contest. This is the time when you can show the court, and whomever else is interested (and hopefully the prosecutor is, if they’re willing to do justice in a case), you can show them that there’s a recognition of the issue. Now, how do you go about doing that, even if you don’t know what the issue is?

Chance 41:54

Well, one is: psychological services. Let’s take, for instance, getting a forensic evaluation and risk assessment. A forensic psychological evaluation plays a crucial role in the criminal justice system, by addressing important questions and providing valuable insights for legal proceedings. In the context of sex crimes, they can be used to assess criminal responsibility and evaluate risk for future dangerous behavior. This information may be crucial to the appropriate settlement or disposition of your case. And I say that, and I emphasize it: crucial. Also, sex therapy. Say you’re pending the disposition of your case, and you want to do something proactive that is going to help you down the line, including the possibility of a better disposition. Sex therapy, going to a therapist and talking about what the issue or behavior is.

Chance 42:53

The main objective is to help the individual subject of the therapy to avoid risky, aggressive, or reoffending behavior, high risk situations. And that sounds like a really good idea if you’re pending a case outcome. So it’s a good idea. Now, other things can be used as well to benefit you, like Sex Addicts Anonymous. Just like if it were Alcoholics Anonymous, a fellowship of individuals who share their experience, strength, and hope with each other, that they may solve their common problems and help others to recover, that’s a good place to be, pre-plea.

Chance 43:36

Now, let’s talk about Post-plea: Post-plea has to do a lot with probation. Now, there’s only really two things to know, and I don’t need to emphasize them, because I think everybody knows and understands them: Comply with all the terms and conditions of your probation. That’s easy. Maybe not easy to do, but easy to understand. And show good conduct while on probation. Which means: don’t violate, don’t pick up a new case, don’t do things like that, okay?

Chance 44:11

Post-probation: Now, if you finish with probation, and you were able to do these pre-plea things, and on probation, you were able to comply with all the terms and conditions of your probation, then we’re talking about what you do when probation either terminates or expires. Well, this is the most important thing I’m going to say tonight: Continue to work on the underlying issues that caused the behavior. It’s really, really important. And it is important because it will achieve your objectives down the line, in order to reintegrate, and to normalize, and stabilize your life in the future. For example, additional sex therapy or continuing fellowship in Sex Addicts Anonymous is really, really important. But other things are important as well. Things that we all know, like Employment, because work provides an opportunity to build friendships and connect with colleagues. Additionally, executing tasks you’re good at can stabilize your mood, especially if you’re prone to depression. And a lot of folks who have been convicted and have to register are prone to depression.

Chance 45:20

Education. The most important aspect of education is personal growth, which contributes to your discernment and maturity, which helps you avoid what you got caught up with to begin with. Social groups, and I think this is really important as well. It’s well established that people who feel socially isolated, or as though they don’t belong, have worse mental health than those who feel socially connected. So getting involved with groups, social groups like including close friends, religious congregations, health and wellness groups, volunteer networks, and human rights organizations, is all very, very, very helpful for your mental health. And it all helps you move along that rehabilitative trajectory.

Andy 46:11

Chance, I just want to chime in. Like, all of those, I don’t want to say all of those things are “restricted” for our people, but many of those things are restricted, or challenging, for many of Our People.

Chance 46:25

Correct.

Andy 46:28

And that just makes it incredibly hard. I mean, yes. Those are all great things that probably every therapist, treatment provider, any of those professions would recommend that you do. But, “Oh, I’m sorry, you can’t go…” you know, like the app Meetup, that just has the “volleyball pickup group” or cycling group, or the chess club, or whatever movie group. “Oh, I’m sorry, you can’t be on that app.” Well, like, what do you want me to do? “Sorry, you should have thought about that before you committed your crime.”

Chance 46:56

Yeah, that’s legitimate, that’s a legitimate comment. But, if you think about it, these social groups that I’ve mentioned are not all-inclusive. As a matter of fact, there’s a million things you can do, okay? And there’s a million places you can go, and you don’t need apps.

Andy 47:18

Agreed.

Chance 47:19

You know, what I’m saying to you, and what I’m saying to everyone, is: social groups are important. Find one you can belong to. And if that social group is like a therapeutic group, like Sex Addicts Anonymous, then stick with them. And if that group is another group like a church group, or another group like a human rights organization, or a resource group like this one, join it! Because all of it has meaning, and all of it is important.

Larry 47:54

So I would like to expand on the point Andy was making, that a lot of people are forbidden. Probation invokes this so-called “felon association” clause. And they say that you can’t do these things in these groups because “they’re felons.” Like, they won’t let them attend the NARSOL conference. “There are felons there.” They won’t let them attend things because there are felons there. And it’s like, really? I will guarantee you there’s hardly a church that you could go to, that has more than 100 members, that doesn’t have a felon in the congregation. So if you take that to a literal, extreme interpretation, you would never be able to associate with anyone, because in any group you associate with there are going to be felons. And I think that’s something for another conversation one of these days, about this over-interpretation of the “felon association” clause by supervising authorities.

Chance 48:54

Yeah, I think that’s legitimate, too, except for one thing. With probation, I don’t go into that, and I’ll tell you why. Because I’m so busy complying with all the terms and conditions, and showing good conduct, I might not have time to do exactly that. This part of what I’m talking about is post-probation, which means you’ve already finished with it. So, once you finished with it, that’s the time to really connect, because I understand exactly what you’re talking about, and it’s the most difficult thing to do. But if you asked me, “When does the process start? At pre-plea? At probation? At post-probation?” I’d say, if I want to get that answer right, “All of the above.“

Chance 49:38

And then, once I’ve engaged in those things, and it doesn’t have to be every single one, but a good many of them will help. I’ll show you how they work. How do I document my process? Before I do show you how they work, memorializing your efforts and progress is essential to meeting your legal objectives at a later stage of rehabilitation. Otherwise, what do you have to show for it? Like, you’d be the invisible man! Organize the following areas of documentation, and keep them in a safe place where they can be easily located: like psychological evaluations, risk assessments, progress reports about sex therapy and probation, self-help, additional therapy, fellowships, all that stuff. Keep a file. Keep it safe. Keep it so you know where to find it.

Chance 50:32

So this is how you use it: How do I make my rehabilitative efforts and progress work for me? Now, this is where you’re going with this. And where you’re going with this in California is right here, at Legal objectives: Termination of probation. Judges will consider granting your petition for early release from probation if you have met the following eligibility requirements:

• Fully paid all your court fines and restitution.
• Completed community service hours.
• Don’t have any new arrests or pending cases.
• Not on probation for another case.
• Completed at least half of your probation period.
• Successfully completed all obligations, such as court-ordered classes and counseling.

So look, if you meet these eligibility requirements, and they should sound familiar, since we’ve touched on almost every single one as we’ve gone through this, the court should grant early termination of probation, if your good conduct and reform justifies the action. And typically this means that the court believes that you’re not a risk to public safety – sound familiar? — and you’re moving your life in a positive direction, which means the rehabilitative trajectory. Second of all, once you achieve that, let’s just say you achieve termination of probation, Dismissal. If a defendant has completed probation or has been discharged early, as mentioned above, they can petition to withdraw their guilty plea (or no-contest plea) and enter a plea of not-guilty, under Penal Code section 1203.4. That is just an incredible, wonderful thing that California offers. On top of which, if you’re successful at doing that, you can move on to:

Chance 52:21

Reductions: If you successfully either got your probation terminated early, and/or get a dismissal which says you completed it without violation, that goes far in helping you achieve a reduction. A defendant can request a reduction of a felony conviction under certain circumstances. As we’ve discussed in prior episodes, this typically occurs after either early termination of probation, or dismissal. The court has the discretion to determine whether to reduce your felony conviction to a misdemeanor, under Penal Code section 17b. The court will consider several factors in determining whether to reduce your conviction from a felony to a misdemeanor, including:

• The nature and seriousness of your offense;
• (But, more importantly) Your behavior while on probation or under court supervision;
• Your prior criminal record; and
• Any other mitigating or aggravating factors in your case,

And all the things I mentioned before go into mitigation. So it’s almost built for you to achieve reduction.

Chance 53:38

Furthermore, if you’re on the list, and that’s the context of what we’re talking about right here, sex registrants can petition for Removal from the California sex offender registry based on the tier of their offense. To be suitable for removal, individuals must not pose a threat to public safety. All that work that went on before, all that stuff goes into that very standard. And if you achieve that, that’s wonderful. But, regardless of that outcome, there’s always a Certificate of Rehabilitation, which we’ve talked about in prior episodes, including the last one, which is a court order that indicates that someone who was convicted of a felony, or a listed misdemeanor sex crime, and served time in state or local prison, has been rehabilitated. It doesn’t erase your criminal record, but can offer benefits such as improving employment or housing opportunities, or help when applying for professional licensure from the state. All these things have a common thread, and they all tie in with each other. They’re all rehabilitative. And they all, all build foundationally on the other. And that, if I were the Department of Rehabilitation, would be a form that I would put down, and have everybody look at and understand, before they went out and started, from day one. So, gentlemen, what do you say about that? What do you say about rehabilitation in the Great State of California?

Larry 55:01

Well, I say that I continue to be intrigued about that Certificate of Rehabilitation. I would like to have that in our state. And I’m also intrigued by reducing your crime after the fact, showing your rehabilitation, that you can have a crime adjusted downward. Is that what you were talking about, “a wobbler”? Or is that a different thing? Because we talked about a wobbler, last episode.

Chance 55:26

Right. That’s a crime that can be charged either as a misdemeanor or a felony, which is called a wobbler. And if it is a felony, yes, it could be “wobbled down” to a misdemeanor, which is incredibly wonderful.

Larry 55:42

But in terms of the reducing the severity of an offense after rehabilitation, are there…? I’m guessing there are offenses that are excluded altogether, that just aren’t eligible — would that be correct — that you can’t reduce?

Chance 55:56

Yes, that would be correct. But one interesting thing about this, in terms of reductions, people think that there’s a time limit. “Hey, I can only do it, you know, during a specific time.” Well, there was a case called Meyer. It’s a 1966 case [247 Cal.App.2d 133 (Cal. Ct. App. 1966)] and I often have brought it to court, when a prosecutor says, “Hey, wait, it’s late in the game. That was ten years ago.” Uh… no. It can happen at any time, anytime after probation expires. And that is such a cool thing that, you know, it’s not limited by time or space. I just love that.

Andy 56:33

Well, someone in chat says, “Chance is making California sound like a great place to commit a PFR-type crime! It sounds like there’s actual rehabilitation, which you don’t hear about in most states.”

Chance 56:45

Well, that – I mean, I’m not so sure you’d want to commit anything here. But I will say this: This state, even though it’s been overshadowed by a lot of stuff, is still a very progressive state in terms of rehabilitation. And I think that, when you look at this, when you look at it from the overhead view, it’s very impressive!

Larry 57:12

Well, you certainly are way ahead of us, in terms of what we’re doing. I would really like for us to have that Certificate of Rehabilitation, and I’d like to figure out a way to incorporate it for people who have non-New Mexico convictions as well. Because if you’ve lived decades and decades of exemplary life here, but you’re from Mississippi, Mississippi is never going to pardon, or expunge, or do anything for you. So you shouldn’t be saddled with your “Mississippi baggage” for the rest of your life.

Andy 57:45

Mississippi would be one of those states where they would do Judge Dredd type things and, “Oh, hey, you jaywalked. Sorry. Death.”

Chance 57:53

Not cool. Not cool.

Larry 57:56

Not quite that bad, but I would like to figure out how to expand the opportunity. Now, I know the argument is going to be that we’ll become a haven for people running from their past. That’s the pushback that we’ll get. But there’s got to be some balance that you can do, to make sure that we don’t become a Mecca for that, but also give people that have legitimately moved here… maybe what we would do is that they’d have to have lived in the state for a certain number of years. That way, you don’t have the people coming just for the opportunity to try to apply for that. If you’ve been a New Mexico resident for ten years or something, then you can apply for a Certificate of Rehabilitation.

Chance 58:36

That’d be nice.

Larry 58:38

So. Well, are we recording an episode next week?

Andy 58:44

Probably. I would think that we would record next week, and then there’s the conference after that, and then, who knows, after that? I got nothing I can say about the 29th and then forward.

Larry 58:56

Okay, so we are on next week. Alright, sounds good.

Andy 58:59

I believe so. Well, very well. Let’s do – Larry, what are these two “good news” things? — And then we will wrap it up.

Larry 59:08

Well, the two good news things are about voting, I think. Nebraska has restored felon rights. They’ve removed the two-year waiting period. So you get off supervision, complete your obligations. And then it looks like that Pennsylvania has made it where people who are incarcerated can vote. And I didn’t dig deep enough into that, but if somebody from Pennsylvania wants to dig into that, we can get further into it. But it looks like they’re going to let – they’re going to join those liberal-lefty-states like Vermont up in the northeast, and I think Maine, where they let people who are incarcerated vote.

Andy 59:46

‘Cause that’s not what the title says. It says, “who have been incarcerated.” That’s not: “who are incarcerated.”

Larry 59:52

Oh! Well, thank you.

Andy 59:54

I mean, that’s the way the title reads. I’m just, so these are just people that have been out. Maybe they’re still on supervision of some kind, whatever. They can vote.

Larry 1:00:01

Okay, well, let’s see. That’s the Philadelphia Inquirer. It’s good news that everybody says, “I can’t vote,” and they pretend like they can’t influence public policy. But you can vote, in many instances. You can vote and you just don’t realize it.

Andy 1:00:14

Yep. And that’s where people go around to typically minority-type neighborhoods and get out information drives to let people know that they very well might be able to vote.

Larry 1:00:28

So yeah, that was behind a paywall. That was the reason why I didn’t do any work-up on it. I couldn’t actually read it.

Andy 1:00:34

One of these days, Larry, we will teach you how to get by the paywalls.

Larry 1:00:38

Well, I don’t like to …pay!

Andy 1:00:39

Again, I can – never mind, never mind. Simple little plug-in to the browser, and you can get by the paywalls. But uh, anywho: We had new patrons! So thank you, Kayden and Matt, who joined just before the show, and he’s the one that we were talking about, the Missouri-Kansas person. Thank you both very much for joining. Kayden did a whole year-long, and Matt just did a monthly pay-as-you-go kind of thing. But that’s all good!

Andy 1:01:06

Head over to registrymatters.co for the show notes. You can leave voicemail at (747) 227-4477, email us at RegistryMattersCast@gmail.com and, of course, as I just mentioned, support us on Patreon at patreon.com/registrymatters. Chance, I hope you survive the heat! And, Larry, I hope you survive the nice weather.

Chance 1:01:30

Thank you. Thank you.

Andy 1:01:33

(I may have had that backwards, on purpose.)

Larry 1:01:36

I’ll see you next week? Maybe.

Andy 1:01:39

Very good. Take care. Have a great night, gentlemen.

Chance 1:01:41

You too.

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Announcer 00:00
Registry Matters is an independent production. The opinions and ideas here are those of the host, and do not reflect the opinions of any other organization. If you have problems with these thoughts, F Y P.

Andy 00:17
Recording live from FYP studios, east and west, transmitting across the internet, this is episode 279 of Registry Matters. Good evening, Larry. How are you?

Larry 00:29
I’m doing awesome. Let’s get this show on the road.

Andy 00:32
All right, well go over and press like and subscribe and notify, five star reviews, all that fun stuff. Hey where’s my little — I press the button to do the thing and it’s supposed to do the thing. There it goes. Okay, now know to press like and subscribe and share it, and such and such. Of course, go to your favorite podcast app and subscribe, and then you’ll get a download right when it gets released. It’s fantastic. You don’t even have to work for it. What are we doing this weekend?

Larry 01:00
This is a holiday weekend, so we’re going to be taking it easy.

Andy 01:04
Didn’t you say? Come on, man. I’m looking at how long it is. And you said we’re going to “take it easy?” You said we’re going to take it easy last week, and it was 55 minutes. That is not what my definition of easy is.

Larry 01:15
Well that’s because you need to stop blabbing so much.

Andy 01:18
Ah, my fault. I see. Okay. Well, then first of all, I did find an article. So, if anybody wants to say all we do is lefty pointy-head thingamajiggers, I have an article from a right-leaning source of all sides. It’s their own little personal commentary about Mr. Speaker of the House being vacated. I wrote down a bunch of questions. How many times in the past has this ever happened? You’re like nearly 200 years old. You have been here since the first Congress was ever voted in? And how many times has a speaker ever been removed?

Larry 01:54
I think I remember back in the early 1800s, there was an attempt, but I don’t think it’s ever succeeded before.

Andy 02:02
I see. Now, we also recently voted in the first non-Caucasian president. So that would be significant. Is this significant? Or should it have just happened at some point in time? This just happened to be the first one.

Larry 02:19
Well, it is very significant because it happened with such a low threshold to trigger the process. But it was a concession that the speaker made, or he was not speaker at the time, but candidate McCarthy made, to become speaker that they would lower the threshold of how many members it took to move to vacate the speaker’s chair. And he agreed to it. And he challenged them a couple of times, saying, “If you got something to file, bring it on.” And they did.

Andy 02:46
Why would he do that? Why would he make that deal to do this?

Larry 02:52
He wouldn’t have become Speaker otherwise. They would’ve gone on from 15 ballots to 30 to 40, 50. He was forced to make the deal to appease the far-right wing of his party. If you flip five seats, you’ll no longer have a Republican majority. And it’s such a difficult caucus to manage because of the extreme views that are represented in what’s a fairly extreme caucus to begin with, but there are some moderates in the caucus, and you can see that in the vote. I mean, all but seven or eight voted to retain him as speaker.

Andy 03:28
And to the thing of the 15 ballots, how many is normal to elect a speaker?

Larry 03:34
One.

Andy 03:34
(laughs) So one and done. We nominate so and so to be Speaker of the House and we’re done, and we can move on with the business?

Larry 03:43
Well, typically each party puts forth a candidate. But the majority party is not going to vote for a candidate of the other party. So therefore, when Pelosi or whoever, Gingrich, had the majority, they put forth one candidate. You kind of go out and work behind the scenes, trying to rally the troops and find out if you can get the votes. And sometimes it takes a while to do that. But normally, when you get to the vote, they coalesce around a candidate, some sort of consensus has emerged, and you have one ballot and you’re done. But this time, we had 15 ballots, and it took a while, and McCarthy made concessions and those concessions came back to bite him in the butt.

Andy 04:24
So on that then, what was the cause? Why did they kick them out?

Larry 04:32
Well, Representative Gaetz, that’s spelled G-A-E-T-Z, I think Trump era, he decided that McCarthy had committed a sin by putting forth what’s called a continuing resolution, to prevent the government from shutting down at the end of September. And every Republican proposal in the house failed because it didn’t have enough spending cuts to satisfy Gaetz and those in the extreme wing of the party. So, McCarthy, recognizing that there’s a little benefit to be gained from shutting down the government, decided to take Leader McConnell’s advice in the Senate, and put forth a proposal that would garner some Democratic support. And he finally did, at the closing moments Saturday, put forth a proposal, and it passed. But it was not what that extreme faction of the party wanted because it didn’t contain the spending cuts they were looking for. Therefore, he forfeited his speakership.

Andy 05:37
Is this at all similar? I can’t remember which state it was, in the southeast somewhere, Tennessee or Kentucky? There were three, I guess they were state-level reps, and they were booted? Is this at all similar?

Larry 05:49
It’s hard to see a lot of similarities. That was in Tennessee. Those members of the legislature broke the rules of decorum and the membership voted to kick them out. This member, the speaker, who’s also a member, didn’t break any rules of decorum. He broke the cardinal promise that he was going to be a diehard staunch conservative. And it’s not the same thing at all. Those people broke the rules of the house or the senate, I forget which they were, but they were members of the legislative body in Tennessee, and they broke the rules. And they were kicked out. And they were re-admitted because the County Commissions of those counties re-appointed them for the vacancies.

Andy 06:32
Have you heard it floated that they would nominate Trump to be the Speaker of the House?

Larry 06:38
I have and I don’t imagine he would have any interest in it. And he certainly doesn’t have the temperament to do that job. But I don’t know how he can campaign for president and be trying to run the House of Representatives. It’s a fairly significant job. It really is.

Andy 06:53
This is the third in line to the presidency. I mean, if the president gets nuked, you have the vice president, and the Speaker of the House is the next in line?

Larry 07:01
Yes. Would that be funny?

Andy 07:02
That would be amazing. I don’t want to drag this on for very long. They just, like last weekend, I guess it was like Friday, they closed the deal, to have just a one-month extension on this whole budget thing. And now he gets booted. What is going to happen in a month or so, at the end of November? With them trying to — like they can’t conduct business if there is no speaker, so that would just be — it just keeps getting kicked down the road until they get one. But once they do get one, they still have to negotiate some sort of spending deal.

Larry 07:35
Well, first of all, what you said is not true. They have an acting speaker right now.

Andy 07:38
Oh that’s right. They do have a Pro Tem right?

Larry 07:41
Yes. So, house business will continue to take place. The risk is that the Democrats made a miscalculation, in my opinion. Time will tell if I’m right or if I’m wrong. But I think that what we learned in this, was that McCarthy was not willing to let the country burn. Shutting down government is a painful experience. It really is. Now most people listening feel differently. They think the government could shut down and nobody would think about it. But that’s just not true. Every part of your daily life from getting on an airplane, to food safety inspection, to keeping the prisoners confined, that should be confined, to prosecuting criminals, all these things require federal salaries to be paid. Parks and recreation sites, perhaps you could not miss those. But shutting down the government is particularly painful. And we just can’t cut ourselves out of the situation we’re in right now. We have expenditures that are greater than the recurring revenue streams. And we need to figure out how to do a combination of finding new revenues and curtailing the growth of spending. You really can’t dramatically slash spending, because about three quarters of what we spend is already in statute, having to be spent by law. But what’s going to happen, and my fear, is that when this 45-day extension expires, we’re in mid-November, which is coming up on a holiday season. And if the candidate who emerges to be Speaker has learned anything, he will have learned that if you cut a deal with the Democrats, this is going to be the end of your speakership. Which means he’s going to be very hard-nosed about any type of deal with the Democrats. And means that there won’t be a spending agreement, and there’ll be a government shutdown coming up on the holidays. Now, that’s gonna be a lot of pressure. And it’s gonna depend on messaging. And the Democrats have shown themselves to be totally inept in this administration, to message, as far as my opinion. And whoever is more clever at pointing the blame at the other, and succeeded in convincing folks that we’re not responsible for the government. You’ll hear the Republicans saying that it’s a Biden shutdown. And you’ll hear Biden saying it’s the Republican shutdown. And it’ll be just like it was in ’95 when we had a long shutdown under Newt Gingrich. Clinton actually won that battle because he messaged better. This president messages horribly.

Andy 10:11
Wasn’t there a shutdown in ’12 or so?

Larry 10:14
Yes, there’s been a number of them. There was one during the Trump administration over Christmas, a few years back. It was actually the longest one on record under Trump, I think.

Andy 10:24
You said during Christmas. Probably people are already taking vacations and don’t give a poop what goes on at Christmas anyway, and they went back to work shortly thereafter?

Larry 10:33
Yeah, but what about the paychecks, people who are not being paid? What I would do if I’m the Republicans? I’ve got to think they’re at least as smart as I am.

Andy 10:40
That’s not necessarily true, though.

Larry 10:42
What I would do is, I would parade all these people that are being ordered to work, because you’re told that it’s your job. You got to be in those control towers and we’ll pay you later. I would get these people in front of a camera and obligate them to boohoo about how difficult it is to pay bills and mortgage and because of the intransigence of the Democrat party, that I don’t have a paycheck, and I can’t buy gifts for my family. If I can think of that, I’m confident they can think of that as well.

Andy 11:08
I have a person in chat saying that the federal workers did care during that shutdown. I think the last question I have for you is, why should PFRs care?

Larry 11:18
Well, you shouldn’t obsess over it, but anytime there’s a disruption of government operations, I suspect some PFRs are applying for, maybe, benefits? And the process of going to an administrative law judge hearing for some sort of disability benefits? There’s things going on that the government does that impacts your life. And you should care because when you need the services that you take for granted because they magically occur, that’s when you should think about it, because services are going to be disrupted.

Andy 11:53
All right, well, that was significantly enough time to talk about politics in that regard. Let us move over to an article from The Colombian, and it is to follow up on last week’s episode. We discussed a proposal that would have removed community notification from Washington State’s PFR registry. Now I have a portion to play from last week where we were discussing it, and you offered an opinion at the end. It appears though, Larry, that you have put on your little clairvoyant hat. You’ve been listening to Art Bell or something like that, and you were able to predict the future. And I mean, I should cue the laugh track. Do you think this will become law?

Larry 12:39
I really don’t. The law enforcement and victim advocacy organizations will put forth an intense campaign of opposition, and they will do this with the intention of scaring the public.

Andy 12:51
This comes on the heels of that proposal in King County, Washington. “A state advisory panel is doing damage control after recommendations regarding PFRs stirred outrage in the community.” The recommendations are for community notifications to be eliminated when convicted PFRs are released from prison and returned to society. However, the Chair of the Washington State PFR board, SOPB, said, “This is all a misunderstanding that stems from research by an outside agency being included in a recent agenda packet.”

Larry 13:21
Yeah, it was a mistake, all right. The article also states, quoting Brad Meryhew, who I think is the Chair of the SOPB, The research was outlined in a document that summarizes a portion of the Model Penal Code, which is known as MPC, which was drafted by a separate agency. Meryhew said, “There are no plans to push it forward as a course of action for the Washington State Legislature to consider.” So basically, Chairman Meryhew of the SOPB has decided this is not even going to be put forward as a proposal.

Andy 14:01
I do have to correct something. I had the wrong article pulled up on the screen. It is not from The Columbian. This is KOMO, K – O – M – O news, just to make that clarification. So, what happened next, though? I thought Washington was a bunch of liberal lefties, your people.

Larry 14:14
Well, parts of the state are, but the liberal lefties have little sympathy for PFRs. In fact, Meryhew said, “The confusion here is that included in the materials we distributed for that meeting, was a comprehensive Model Penal Code that talks about a variety of different proposals that have been made to state legislators for adoption. We are tasked with staying up to date on the latest research and policy proposals on PFR Offender Management.”

Andy 14:47
So it wasn’t the actual SOPB? It was the Model Penal Code that has found that community notification actually undermines public safety? It also recommends that the PFR registry should be reserved for law enforcement and not be made available to the public. The reasoning is that the attention notifications and registries bring can make it more difficult for offenders to get housing and a job and successfully re-integrate in the community. Do you think it can pass now?

Larry 15:16
Not likely. First, the board does not even plan to recommend the proposal. Second, as Meryhew stated, “There’s a great deal of support for community notification on our board and I would be shocked if any proposals to limit that or in any way or diminish that were successful.” It cannot pass the legislative process.

Andy 15:37
I remember seeing like on the NARSOL affiliates list, like is this the, I don’t remember the right words, but the somebody organization presents, they’re a panel and like a think-tank of what the policy should be. I don’t remember what this is called. Do you know what I’m talking about?

Larry 15:56
I know what you’re talking about, and I have scorned that because, in my 30 years of legislative experience, I have never seen anybody say in our legislature, “Oh they recommended that. We better pass it.” I mean, it’s just not a big talking point here.

Andy 16:10
So, is that just like wasted paper?

Larry 16:13
Yes. The American Law Institute, you’re thinking about ALI.

Andy 16:16
Okay, yeah. And so then having all the big-brain, social scientists, legal brain people, like this means nothing to policy?

Larry 16:29
No, because you’re dealing with the public’s emotions. And as this did exactly what I thought it was going to do, it caused a backlash among the public. And that’s a sure way to end your political career, if you go against the public on something as sensitive as this. And they’re not likely to do it.

Andy 16:47
Mr. Doom and Gloom. That’s why I leave that picture up there of you, Larry. And I don’t change it around anymore because you were just Mr. Doom and Gloom. Let us go over to actually what is The Colombian, my apologies on jumping the gun on which article it was, but we had the right information going. I just told you the wrong article. This one is from the Colombian, and it says, “A Portland man was acquitted last month, after being granted a new trial on appeal, nearly five years after he was convicted in connection with an undercover child-sex sting. A Clark County Superior Court jury, September 8th, acquitted Jace Hambrick, 27, of attempted second degree rape of a child and communicating with a minor for immoral purposes. This is great news. I’m perfectly good friends with the boy’s father. And as I recall, you were kind of down on the whole idea about him winning a trial anyway.

Larry 17:39
I was, because jurors generally do not care. Jace was one of several people arrested in February 2017 after responding to an advertisement posted by an interagency task force posing as minors online. And in Hambrick’s case, he responded to a Vancouver detective’s post in the “casual encounters” category of Craigslist, by a girl looking for someone to talk to you about video games. Initially, that’s what the conversation centered on, but it drifted to something else.

Andy 18:11
The court records show the detective messaging Hambrick said, multiple times, that they were — how old, Larry? 13 — before and after the conversation turned sexual in nature. Hambrick, then 20, expressed doubt that a 13 year old would be posting on Craigslist, and at one point he said he thought the fictitious girl was joking about her age. Now, can you admit that this turns out to be entrapment?

Larry 18:48
Yes, I can admit it. But the problem is it’s for the fact finder, either the jury or the judge. But when Hambrick arrived at a Vancouver apartment to meet the girl, detectives arrested him, according to a probable cause affidavit. And I have not wavered in my opinion at all, that people should disengage when a person morphs into a minor. It doesn’t make any difference what you think. Disengage. You’re not going to be as lucky as Jace was. And you’re not going to have a determined parent, and a lot of money to throw at this. It’s easier to just disengage.

Andy 19:23
On May 21st, 2018 Hambrick’s bench trial began in Clark County. The following day, Judge Gregory Gonzalez found Hambrick guilty on both counts, court records show. Despite his convictions, Hambrick maintained his innocence. His defense attorney at the time filed multiple motions, including asking the judge to reconsider his verdict, and to vacate the convictions. All of the motions were denied, according to court records. In November 2018, the judge sentenced Hambrick to 18 months in prison, which was an exceptionally low sentence. He was also ordered to register, the court records also show.

Larry 19:57
Yes, and Hambrick appealed on the basis of insufficient evidence, and that his right to a jury trial was violated because he didn’t personally sign the waiver. I actually agree with that. That’s a significant thing. And I would never think of waiving jury trial without the client’s signature, because that’s going to come back and bite you as an attorney. But anyway, that’s apparently what happened. His case was featured in an August, 2020 story by the New York Times Magazine that explored online-predator stings in Washington. Two years after he was sentenced, the Washington Court of Appeals issued an opinion that Hambrick’s right to a jury trial was violated by his lack of signature, and the court vacated his convictions. By then, of course, he had already served his sentence. The appeals court, however, did not find that there was insufficient evidence for his convictions. His case was set for a new trial, which began in front of the jury this time, on September 5th, according to the court records.

Andy 20:53
At the new trial, Hambrick’s defense attorney, Charles Lane, raised several issues with the investigation. He said Craigslist requires users to affirm that they are at least 18 years old, so Hambrick assumed he was talking to an adult. At one point in the conversation, Hambrick asked the fictitious girl to send him a photo. The photo he received was of a 24-year-old woman who turned out to be a Vancouver police officer.” That officer also answered the door when Hamburg arrived at the apartment, court records show. What more do you need to find that this is entrapment?

Larry 21:24
Well, I said I don’t need any more. I think it is. But again, we have to convince juries and judges. But in the police interview, after being arrested, Hambrick told officers, “If he arrived to find the person he was messaging was actually a 13 year old, he would have left, and he said he had no intention of having sex with a minor.” Most juries do not believe such proclamations by an accused. That’s very self-serving. He was a compelling witness, obviously, and a juror was open minded. It is very important that Hambrick also had no criminal history, and a law enforcement search of his phone did not turn up any evidence of sexual misconduct with minors. All those things weighed in his favor. And those are things that you would certainly take into account before putting a person on trial. Nevertheless, he was still sentenced to prison, in what was referred to as a very light sentence. And again, that would not have been the outcome here in New Mexico for a young first-time offender. It just wouldn’t have been. He would have got a probated sentence.

Andy 22:28
So, in your experience, why are you so afraid to go to trial on these kinds of cases?

Larry 22:33
Mainly because of my grand jury experience of three months of listening to people and arguing with fellow jurors, and just not making any headway. In every sex case, they were ready to rubber-stamp the indictments. And also it’s worth noting that one juror named Rik Smoody, said the majority of the jury was in favor of convicting Hambrick when it first began deliberations. But as the jurors continued to discuss the case, they found enough reasons to cast doubt that Hambrick was actually seeking a minor. The juror said the evidence showed Hambrick was cooperative “perhaps to a fault.” And he said Hambrick let law enforcement search his things, and he answered all their questions. And now, I have to backtrack on something, because I always say, “Don’t talk to the police”. But I’ve never been put in this position in my career of having your cooperation with the police weighing favorably before a jury. So now I have to rethink that. But I would normally say to tell the police to take it and shove it. And this, as far as the jury is concerned, worked to his advantage.

Andy 23:40
I’m still troubled, Larry, that even if the person said they were 13, and he goes to the house, and it is an adult, where does this fictitious minor come into the picture?

Larry 23:54
Well, obviously, they’re not going to have a minor there and risk that you would take possession of a minor. I mean, the whole thing is a scam. But I think it’s really important to say this jury was ready to convict him at the beginning of it.

Andy 24:07
Without a doubt.

Larry 24:08
Yeah. So you know, it’s not a slam dunk, by any means.

Andy 24:11
Right. And he also stated that when the jury was shown the photo the detective sent Hambrick, Smoody agreed the woman did not look like a minor. He said Hambrick never wavered that he felt the person in the photo was a real adult. “It was entirely credible that he was checking it out because she might have been for real,” Smoody said, “And, in fact, there she was – she stood in front of him and opened the door, all 20 something and all that woman.”

Larry 24:38
Yep. And again, that was an amazing, open-minded jury. The Grand Jurors I served with would not have cared about the fact that it was a picture of an adult. They would have said, right, sure. They would have made every excuse in the world to justify convicting him. But he happened to have an open-minded jury in his determination, so he doesn’t have a PFR conviction, and it’s just fantastic. But juror Smoody also said he finds this type of online sting, like in Hambrick’s case, to be wrong. He said he believed law enforcement was casting too wide of a net. And that’s an extremely insightful thing, from a jury.

Andy 25:22
Can we get him on the podcast?

Larry 25:25
I don’t know how we would find him. But if Kathleen knows how, yes.

Andy 25:28
What was his… Smoody? Like how many people can have that name?

Larry 25:33
Probably about 10 million.

Andy 25:35
Oh, God, seriously? No. Lane, the defense attorney, said that when the sting operations first began, defense attorneys and prosecutors alike, didn’t like much about how they were operated or funded. At the time of Hambrick’s case, investigators did not do enough to ensure the suspects were actually intending to meet minors. “Since then, agencies have made changes to how they conduct the stings,” he said. Aha! So they’ve gone back and taken note of what they did wrong, and they probably improved things, Larry.

Larry 26:03
Well, yes. But we need to, as the people who actually instruct law enforcement and give them the powers that they operate, make it clear that they must prove that there was an intent to have sex with a minor. And we need to clarify the statutory schemes. But anyway, while Lane said, Hambrick’s case isn’t an outlier, he said it’s unusual that he was acquitted. And I want to reiterate that, yes, this is a great outcome. Congratulations to Kathleen and Jace. But don’t figure this is going to become the norm.

Andy 26:36
Is there any avenue that all of the other people that are involved in Kathleen’s group called CAGE, which is Citizens Against Government Entrapment, if I’m not mistaken on that one — Is there an avenue that this is used as some kind of evidence, persuasive authority, all those terms, whichever one would work, to help those people out?

Larry 26:57
Very little, because this is a trial level court, it went up on appeal, and it got reversed on one issue alone, not insufficient evidence, but the fact of the waiver. So, you’d have to find how many people had waived their right to a jury, unknowingly, without signing it themselves, and you would have a subgroup that could possibly reopen their old convictions and go back and roll the dice and go before a jury. If they’ve served all their time, perhaps they have nothing to risk, because maybe Washington law would prevent them from imposing a harsher sentence than what was originally imposed. But this won’t have much impact beyond this case. And if it is, it will be for people who had waived their jury right, unknowingly.

Andy 27:41
Only because of that, he was able to go back before the jury?

Larry 27:46
Yes, that was what got him back to the courthouse again, was the attorney-waived-jury. Like I said, I would never have done that.

Andy 27:58
Because he had served his sentence at that point. So, he was like, “done.” He still had the registry to contend with, but he was done. Why would you then go, “get another bite of the apple?” That’s the expression you always use?

Larry 28:10
Well, because the higher court said so. Because he did not knowingly waive his right to a jury trial. Yeah. Right. But I’m saying I would never have, I can’t imagine any attorney I’ve worked with in case preparation, where we would waive a jury trial, without getting a signed waiver from the defendant. I can’t fathom that happening.

Andy 28:29
I remember I’ve talked about this before, that when I was being sentenced, and I’m sitting there in the courtroom with the attorney on the other side of the glass, and the whole room is just super loud and booming, can’t hear anything. And somewhere on there, I signed that I was waiving right to a trial and all that stuff. I mean, I remember, of all the other things that I was signing at that time, but I remember that happening. Well, that’s a standard part of the waiver, when you’re doing a plea. But he went ahead and went to trial, but he waived his right to a trial by jury. Yeah.

Larry 29:03
And that’s an unconscionable thing for a defense attorney to do that.

Andy 29:08
Right. Is there any sort of punishment, whatever the right word would be? Is there any sort of punishment for that attorney that did that?

Larry 29:14
Not likely. He’s going to tell a different story. If the complaint was made, he’s going to say, “I discussed it very thoroughly with my client. He was young and impressionable. And I thought he signed the paper. I don’t have it now, but I’m almost certain he signed the paper.” That’s what he’s gonna say.

Andy 29:32
Well, I do have Kathleen scheduled at the end of the month. Schedules just could never work out with the time that we took off and whatnot, and she was busy. But she’s supposed to come on so we can talk to her firsthand, towards the end of the month, if I’m not mistaken. The 28th? I don’t know if that’s the right day of the week. Yeah, the 28th I’m pretty sure that’s what it’s gonna be.

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Andy 30:39
All right. Let us go to this article over from ACSOL, which is the Alliance for Constitutional Sexual Offense Laws. Is that right?

Larry 30:50
That sounds familiar.

Andy 30:51
Very good. All right. ACSOL has filed a federal lawsuit in Missouri (in Missoura?) Which way do you say it, Missouri or Missoura?

Larry 30:59
Missouri.

Andy 31:02
The case is Thomas I. Sanderson vs. Andrew Bailey, in his official capacity as Attorney General of the State of Missouri; and James –who? oh my god, what is up with these names you keep coming up with every week? Who Danik? Who Denecke? Which one do you think it is?

Larry 31:20
I think it’s Hudanick.

Andy 31:24
Hudanick. So, this is James Hudanick, in his official capacity as Chief of Police of the City of Hazelwood, Missouri. And what is this going to be about?

Larry 31:34
This action challenges the constitutionality of a provision of Missouri State law mandating that persons convicted of sexual offenses display a sign at their residence declaring, “No candy or treats at this residence” each Halloween. This is prohibited by Missouri revised Statute 589.426(1)(3).

Andy 32:03
And what are they trying to do? What are they seeking?

Larry 32:06
Two things. First, they’re asking the defendants be enjoined in perpetuity from enforcing the Halloween sign posting mandate, and that the Halloween sign posting mandate codified in the statute section I just read be declared null and void under the First Amendment of the United States Constitution.

Andy 32:26
Courts and other jurisdictions have struck down similar Halloween sign posting mandates on the grounds that they are a ‘classic’ example of ‘compelled speech.’ Do you think that this case is a good one? Do you like it?

Larry 32:38
I do. And it’s very solid. Courts have indeed struck down similar requirements. And it’s noteworthy that the only circuit precedent that they cited in this complaint is McClendon v. Long, and that’s 22 Federal 4th at 1330 from the 11th circuit in 2022.

Andy 32:54
I know that one!

Larry 32:56
I was just going to ask you if you remember that. That was the case that I, as your host, planned and worked diligently with the attorney in Georgia, to see that we prevailed, and we did prevail.

Andy 33:09
The complaint states further, “Sign posting mandates, such as those imposed by the State of Missouri, pose a danger to PFRs, their families, and their property. That is because the sign posting mandate and its association with the requirement to register, is highly publicized by state and local governments, as well as the media. Further, both the government and the media encourage the public to view the occupants of any house displaying the sign at issue as likely abusers of children.” Do you agree with that?

Larry 33:39
I do, indeed. This is placing a target on the registrant, as well as all occupants of that dwelling.

Andy 33:45
The complaint states, “There is no empirical evidence for the State of Missouri’s continued assertion of a danger to children from registrants on Halloween, or for any special regulation of registrants on Halloween. In fact, the leading association of specialists in the treatment of PFRs, the Association for the Treatment of Sexual Abusers (ATSA), affirmatively denounces Halloween restrictions such as Missouri’s.” I know you say that evidence is not necessarily required. What is it about this case that involves the First Amendment?

Larry 33:45
Well, that does change the equation. Normally, you’re looking at what’s called a rational basis review. But this changes the legal standard dramatically. In First Amendment challenges, there is a much higher threshold for the government to overcome. They could, in fact, require signs for a very limited number of registrants. But those registrants would have to receive some due process that identifies them as likely to lure a child. Otherwise, they just cannot impose this blanket requirement. So, listen to me law enforcement: If you want to do these things that, I don’t think they’re solid, but if you want to do it from a constitutional perspective not being challenged, you have to have due process. Remember: due process.

Andy 35:05
What does this word mean?

Larry 35:06
You have to target those people who have, in their offense behavior, and their criminality, that they have done something like luring a child. And if you were to narrow it down, then you would take 800,000 PFRs nationwide, and you’d have a category of 17. Because the number of adults who have actually lured a child to some sort of private place, and sodomized and done ugly things to them is probably very, very small. But you could do this type of thing, to that offender, with due process, to show that they have this propensity, and it has been untreated, and unmanaged. But you can’t do it as a blanket policy. So folks, listen, if you want to do these things, tell your state legislators that we want to do this, but it’s going to cost us some money, because we want to do it in a constitutional way. Remember, you put your hand on the Bible, and you said that you’re going to enforce and defend the Constitution. That means all aspects of the Constitution.

Andy 36:11
I mean, so I was just going to bring up, when I joined the military and re-enlisted and all that stuff, I had to swear to uphold the Constitution against all enemies, both foreign and domestic. And that would be including due process, correct?

Larry 36:27
It would. And these people, when they get elected to office, they pay a lot of lip service to the Constitution. But what they actually mean, let me interpret it to you. They mean: “I will enforce the Constitution on things that have big money behind them, like the NRA, and things where there can be an immense amount of political pressure brought to bear if I don’t.” So, you’ll find a lot of sheriffs that magically believe in strong defense of the Second Amendment, because they know the consequences of not having that position. But when it comes to something about PFRs and due process, they magically go silent. And they forget all about that same Constitution.

Andy 37:06
And DAs, obviously, are there to uphold the law. And this is not, well, this is law for them, right?

Larry 37:15
It is in fact law.

Andy 37:16
In Butts, it wasn’t, with Gary Long. That wasn’t law, that was him making up something. That’s why it was, I’ll say, easy to win in court.

Larry 37:24
It was easier because he could not cite to the law. This is not going to save Missouri, but it is easier for them to defend it. “Well, I mean we’re just doing our job. We put our hand on the Bible, we’re going to enforce the law. If you don’t like the law change it.”

Andy 37:37
Yeah. And another thing that you say is, in signing a law, you assume it’s constitutional until somebody brings a challenge for it.

Larry 37:48
And that’s generally true. In First Amendment cases, when you’re restricting the content of speech which, arguably, I would say this is restricting the content, you’re not telling them particular words that they can say, but you’re telling them particular things that they can’t do to express themselves on Halloween. And you’re telling them that they can’t communicate with people who might come to their door. So I would say this is very close to a content-based restriction, and this is the highest standard of scrutiny applied, strict scrutiny, and I just don’t think they can overcome it.

Andy 38:18
Would you let me read part of the statute, is that cool?

Larry 38:21
Yes.

Andy 38:22
Missouri Revised Statute Section 589.426 and the Halloween Sign Posting Mandate: Effective August 28th, 2008, the Statute provides, in full (so hold onto your seats, kids) as follows: Any person required to register as a PFR under the sections I just said above, shall be required, on October 31st of each year, to: Avoid all Halloween- related contact with children; remain inside his or her residence between the hours of 5pm and 10:30pm unless required to be elsewhere for just cause, including but not limited to, employment or medical emergencies; post a sign at his or her residence, stating “No candy or treats at this residence;” and leave all outside residential lighting off during the evening hours after 5pm; any person required to register as a PFR under Sections 589.400 to blah blah blah, who violates the provision of Subsection One of this section shall be guilty of a Class A misdemeanor. Now, has the plaintiff in this been prosecuted for a violation?

Larry 39:31
According to the complaint, he has. Plaintiff Sanderson and his family moved to the City of Hazelwood in or about the year 2000. Each Halloween for the 22-year period between 2000 and 2022, Sandersons family erected and maintained lavish Halloween displays at their home and on their property. The Sandersons’ display has been a neighborhood tradition for many years, with over 300 people visiting each Halloween. In or about October 2012, Hazel Police Officers appeared at Sandersons residence to inquire about the Halloween decorations, alleging that he might be in violation. Subsequently they concluded that he was not, for whatever the reasons. It wasn’t clear in the complaint, but they told him that he was good to go.

Andy 40:11
I mean, man it says — yeah, I guess it doesn’t really say you can’t do it. Like I just read the, so: “Avoid all Halloween contact with children, remain inside, posting a sign and leave residential lighting off outside. Now if you’ve got lights on in your yard, Larry, lighting up your skeletons, that’s not residential lighting. All right. It goes on to say that on or about October 31st, 2022, while his residence was decorated, as it had been for the past 22 Halloweens, six marked vehicles from the Hazelwood Police Department descended upon the Sanderson residence, with sirens blaring! At least 10 Hazelwood police officers then entered plaintiff Sanderson’s property from all sides, including through his neighbor’s yard. Officers told plaintiff Sanderson that he was in violation of the statute that he had, twice before, been told did not apply to him. The officers asked for permission to search his property, which plaintiff Sanderson refused to grant permission requested, requesting instead that the officers obtain a warrant. Do you approve of him telling them to go get a warrant?

Larry 40:35
Good point. I do. Indeed. But did you hear how many officers they had at the property for a misdemeanor? Now, can you please admit that that’s funny?

Andy 41:32
This is, okay funny in the sense of, oh my god. The guy just has some skeletons and boo boo boo on his front yard, and they need six cop cars? How many, and they’re loaded probably four deep, in each car?

Larry 41:46
In our studio audience, someone Google this Hazelwood, Missouri and let’s see what the size of the town is, and what type of police force we’re talking about. But I’m betting this is like a third of the police force.

Andy 41:57
Yes, it probably is. Hazelwood, Missouri Population. All right. So no, it is not funny, Larry. And then on November 3rd, 2022, law enforcement obtained a warrant and arrested plaintiff Sanderson and placed him in custody. Plaintiff Sanderson was then charged with one misdemeanor count of violating the statute. The St. Louis County court convicted plaintiff Sanderson of violating the statute and sentenced him to 12 months of unsupervised probation. Plaintiff is currently on probation and will remain so through April 12th of 2024. Now, what do you think of this plaintiff?

Larry 42:34
Actually, I like this plaintiff. He’s about as good as you could hope for, unlike the case we discussed last week when we had the worst possible challenge. Uh, this town has 25,000 people. Yeah, so they had like a third of the police force out there at his residence.

Andy 42:51
(laughs) Before we go out of here and cover the last little section, what do you think the odds of success are?

Larry 43:01
Oh, in this one, they’re excellent. I have wanted to do this challenge. Our bureaucracy at the organization I serve on the Board of has been moving a little bit slower than I would like, and another organization got to it first. But this is something I wanted to go at for about a year now.

Andy 43:18
Doesn’t Janice have experience in this? They filed something similar in California, years, years, years years ago?

Larry 43:25
Yes, they do.

Andy 43:27
So, is this something that you can kind of rubber stamp and just fill in the form letter and go about the challenge?

Larry 43:34
Yes, you look at her complaint. And it’s very similar to what we used in Georgia, and they will be similar to what we use around the country. I want to do all these. I know it doesn’t bring down the registry. It’s not the big one. But it conveys to law enforcement, and to the policymakers and lawmakers, that there are limits to what will be tolerated. And it puts boundaries around what’s acceptable. And being told that you cannot decorate, you cannot engage in your basic rights as an American, it’s unacceptable. And we’re gonna shoot you down on it.

Andy 44:07
I’m struggling to really grasp, Larry, that the people continue to be elected and re-elected and they have to swear an oath to the Constitution that they’re going to uphold it and all this stuff. But in that — so, fine, you have a statute that says to do the thing to uphold the law, but you also then have the First Amendment right. Then maybe those aren’t exactly covered the same way of the First Amendment being about freedom of speech, freedom of religion. But when I first started becoming involved with NARSOL, and something along those lines of the Halloween signs was going on. And I heard someone said, it’s also the right to be able to express yourself. I guess it was the right to be able to hear a message. And then you brought up that this is your ability to express yourself. And that these would be perfectly good challenges to go after.

Larry 44:57
Correct. Absolutely and we as advocates need to be doing more of these challenges. We’re not going to bring the registry down through judicial intervention, I’m sorry to break that news to you. But we can contain the monster. And we need to go after everything that we can to contain this monster. Litigation will eventually wear these people down. But these people, the legislative bodies, they’re part time. They’re homemakers, they’re different. They don’t know. They’re not constitutional lawyers. They’re being told by the Attorney General, and experts that testified, that these are constitutional, and they don’t know any better.

Andy 45:34
So we shouldn’t blame them?

Larry 45:35
Not per se. We should not blame the legislative bodies, because they’re being told by people they trust that these are good laws, and that they are very much constitutional.

Andy 45:46
Do you think it’s lost on them? That it’s not just about the PFR in the house, but also potentially the other innocent people that are in the house? Their parents, kids, spouses, whatever, that can be impacted by this public awareness of them? Does that ever enter into anybody’s consciousness?

Larry 46:06
No, because the PFR population seldom shows up and brings their minors to explain to them that, “Hey, I’m afraid because of this, and I’m bullied because of that.” They don’t use the boohoo technique. The victims’ advocates, they bring in the boohoo-ers to cry. And I’m sorry, but boohoo-ing is very effective. We need to get into the boohoo business.

Andy 46:27
We’re gonna run a boohoo campaign, Larry. All right, we have something. I have to like change screens, because I could not get this article to load, Larry, without using my special sneaky-sneaky techniques. Where did — where do I go for this one? Uh, what did I do?

Larry 46:51
It was the Washington Post.

Andy 46:52
I know. But I could not get it to load on Chrome, so I had to go do something sneaky-sneaky to make it load. There, now it’ll load. Okay, now we can look at it. And this article is from the Washington Post about the blackmail of teenage boys. And, you know, Larry, I have a 16-year old myself. So, this is something that hits kinda close to home. The article was from the Washington Post, as I said, written by Chris Moody and published October 2nd, 2023. It states: Lynne and Paul were sitting in their Seattle home one night earlier this year when their son, Michael, a 17-year-old high school football player, burst into the room and made a bee-line for his mom’s purse on the dining room table. Paul asked, “Hey, what are you up to there?” Their son paused, took a breath, and leaned against the wall. “Um, I’m being blackmailed,’ he said. He had been chatting with a person through Instagram and Snapchat, who purported to be a 16-year-old girl. ‘She’ saw his profile and told him he was cute. Michael had never met the person, but the account was filled with photos and details about the girl’s life that made it appear real. The two flirted back and forth. The person behind the account asked to see a photo of him in the nude, and specifically requested he include his face. Alone in the room that night, Michael dashed off a picture he took with his phone. Suddenly, the person who had seemed so sweet and fun while chatting for weeks, demanded Michael send hundreds of dollars through Zelle. If Michael refused, the person threatened, they would send the nude photo to his family and friends. He tried to set up a Zelle account on his phone, but it required his social security number. That’s why he was digging in his mom’s purse. He was hoping she might have his card there.

Larry 48:31
I didn’t catch that part. I totally went through that. But according to the article, Michael had fallen prey to what online safety and law enforcement experts call ‘financial sextortion,’ in which predators befriend victims online under false pretenses, entice them to send incriminating photos, and then demand payment under threat that they will expose the photos to family and friends. “The number of sextortion cases targeting young people has exploded in the past couple of years, with teen boys being the specific targets,” said Lauren Coffren, executive director of the Exploited Children Division at the National Center for Missing and Exploited Children (NCMEC). “They’re using shame, embarrassment and fear, and they’re tapping into that,” Coffren said. “They’re exploiting children’s worst nightmares.” This is gross stuff.

Andy 49:22
The repercussions of the abuse are devastating. At least a dozen boys died by suicide in 2022 after they were blackmailed, according to the FBI. Michael’s parents were surprised he would find himself in this position, but immediately helped him navigate the next step.

Larry 49:40
Well, what do you do if your teen is a victim of sextortion? I don’t have a teen. I mean, I did about 160 years ago, but what do you do?

Andy 49:47
(laughs) According to the article, if you’re in this situation, experts advise you to immediately stop responding, and block the harasser. Do not delete the conversation, so you have proof, and you can report it to authorities. Do not send any money, even if the user has sent incriminating photos. Giving into demands will rarely make them go away, and will often encourage them to demand more. Next, alert the platform. Most have a place to report sextortion. I have problems with that advice, Larry, but what do you think? Do you agree with that advice?

Larry 50:20
Not entirely. Do you remember a recent episode, where a father called the police?

Andy 50:25
I do!

Larry 50:25
And the police threatened to prosecute the minor girl, it was a girl in that case. And I know of only one state that protects minors from prosecution for making photos of their private parts, and that’s New Mexico. I do not know of any other state. So, calling the police might have some risk attached to it.

Andy 50:43
Can you see any legal way to insulate yourself? I guess, don’t talk to the police. Call an attorney first, and then talk to the police.

Larry 50:50
That might be the first step. But all I can say is that parents are going to have to speak to your adolescents and urge them not to send any selfies, particularly nude selfies I should say. You can send all the selfies as you want, but don’t send nude selfies because these can bite you in the butt. I got bad news that they could use all kinds of AI tools, and make whatever you send them — suppose you don’t include your face, Larry, and then in another picture you do include your face. With some creative photoshopping, you could put the two together and now you have a nude selfie. But do not send any selfies of your junk.

Andy 51:26
I’m with you. But it wouldn’t be very hard to even craft the other part of that, of making up somebody else’s junk and putting the other person’s face on it.

Larry 51:35
But we would get into that in discovery. If you came to me as a defendant, telling me that that’s not your junk. Well, I’m gonna have to say, “Well, we’re gonna have to look at your junk and compare your junk to this junk, and see if the junk is a match.”

Andy 51:48
That’s what they did with Michael Jackson!

Larry 51:50
That’s exactly what we would have to do!

Andy 51:53
Now running around looking at minors’ junks, Larry!

Larry 51:56
Well, we would have to do that, because I’d have to tell the prosecutor, “Look, I need for you to consider dismissal in this case, because the junk that’s in that photo is not my client’s junk.”

Andy 52:06
(laughing)

Larry 52:11
“And if you want to verify that, well we’ll go into that. But we have a different junk, and I’m gonna put my client’s junk in front of the jury, and we’re gonna get an acquittal at that point. Do you really want to go through this?”

Andy 52:27
This is ridiculous. This is sad. All I can say to parents is that, please, speak to your children and urge them to not send selfies.

Larry 52:40
I totally agree.

Andy 52:43
Lastly, Larry, I hope we can do this one quick. This comes from Florida. And this is from News4jax.com. The article says, “A number of new laws are now in effect, as of Sunday. Arguably, the most controversial centers around changes to Florida’s death penalty. Child rapists can now face execution for their crimes. The law specifically pertains to child victims under the age of 12. Higher courts have already said imposing death sentences in these types of cases is a violation of the 8th Amendment.” What say you?

Larry 53:17
Well, I say it’s unconstitutional in my opinion, but Florida courts now have a green-light to sentence certain offenders, labeled as ‘child rapists’ to death row. It was a measure that received bipartisan support as it rose through the Tallahassee legislative process. Upon signing it into law, Governor Ron DeSantis said, “These are really the worst of the worst. The perpetrators of these crimes are often serial offenders.” You always want bipartisan support for legislation. Here’s an example of something that’s bipartisan, and it’s not good. Bipartisan doesn’t necessarily mean good.

Andy 53:51
Maria DeLiberato is the Executive Director of Floridians for Alternatives to the Death Penalty. She does not disagree. She said, “Of course, child sexual battery is one of the most horrific crimes that one can think of.” DeLiberato, an attorney herself, explains even though the law is now technically in effect in Florida, the Supreme Court would first have to reverse its initial ruling for it to apply to a particular case. DeLiberato also points to alarming statistics. According to the Child Welfare Information Gateway, about 90% of child sex abuse victims know their abuser and about 30% of children are abused by family members. So now you’ve got this whole dynamic where a child is going to bear the weight of a possible death sentence to a neighbor, an uncle, grandfather, something that’s someone that they know, that everybody in their family is not going to feel exactly the same way about. The end.

Larry 54:54
Now that’s going to be sad, because Florida’s strongly in favor of the death penalty, but there are gonna be people in the family that may not live in Florida, that might not be pro-death-penalty. And so, you’re gonna split families apart in terms of, “I don’t think the death penalty should be applied in a case like this.” Hopefully the courts strike it down. But again, folks: bipartisanship doesn’t necessarily mean good. It can be good, but it’s not necessarily.

Andy 55:25
Hey, there was something that I just read, though, that says about 90% of victims, and so 90% — that means some number 10 or less, is of people that are a known quantity. And like, they’ve just admitted that, essentially, the registry is watching the wrong people.

Larry 55:46
But how would you watch the right people? If they haven’t offended yet, how would you determine who to watch?

Andy 55:51
We wouldn’t have a registry then. Because it doesn’t make much sense to watch the people that you don’t need to be watching. Not necessarily don’t need to be, but these other people are going to be the ones that are going to end up in court sooner.

Larry 56:03
So, well we shouldn’t be registering anybody if they’ve paid their debt to society, but that’s a discussion for another podcast.

Andy 56:10
I agree with you. I looked for new patrons. There’s no new patrons, but feel free, if you want to listen and subscribe for even $1 a month, that would make me a happy camper. But you have something to report about a new subscriber.

Larry 56:24
Yes, we actually have a free-world subscriber named Scott that just signed up for a year. Can you believe that? A year!

Andy 56:31
Where is Scott located, give or take?

Larry 56:34
I think Wisconsin.

Andy 56:36
Wisconsin, eh? All right, well, fantastic! Is there anything that you would like to talk about for the next 30 seconds before we close it out?

Larry 56:42
No, just make people aware that we are not going to record next week, because you’re traveling to the Bahamas. But you’ll be back the following week.

Andy 56:52
I am. Absolutely. It’s gonna be a long drive too. All right, well, make sure that you head over to registrymatters.co, where you can find the show notes, and subscribe to the podcast with your favorite podcast app there. Or do it actually in your podcast app and search for it there. Email registrymatterscast@gmail.com. And as I said before, subscribe over at patreon.com/registrymatters. Nothing else, Larry?

Larry 57:17
Nothing else.

Andy 57:19
Very good. I hope everybody has a great weekend. It’s a holiday weekend for most people, or at least many people. It is, uh, I don’t even want to call it Columbus Day. It’s Indigenous Persons Day now, I think. Isn’t that right?

Larry 57:32
That is what I recollect it being called.

Andy 57:35
Very good. And I hope everybody has a great week, and we will see you in two weeks.

Larry 57:41
Good night.

Announcer 57:49
You’ve been listening to F Y P.

Listen to RM278: Lifelong Registration vs. Justice: The Malone Story
https://www.registrymatters.co/podcast/rm278-lifelong-registration-vs-justice-the-malone-story/

https://fypeducation.org/wp-content/uploads/2024/03/RM-278-Final-Print-Copy-1.pdf

Listen to RM247: The Difference Between an Extradition and a Probably Cause Hearing?
https://www.registrymatters.co/podcast/rm247-the-difference-between-an-extradition-and-a-probably-cause-hearing/

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Announcer 0:00
Registry Matters is an independent production. The opinions and ideas here are that of the host, and do not reflect the opinions of any other organization. If you have problems with these thoughts, FYP.

Andy 0:09
Recording live from FYP studios, east and west, transmitted across the internet. This is episode 247 of Registry Matters. How are you this evening, you people?

Larry 0:21
We’re very well. Nice and cool, but very well.

Andy 0:24
Fantastic. Before we get going, make sure you press the like and subscribe and get the notification bell, then add a thumbs up to this video. And that will add all the sugar spice and everything nice to the YouTube algorithm and maybe some more people will find this content, and we would appreciate it very much. Do you want to banter about anything? Or do you want to dive right in there?

Larry 0:45
Well, we can banter a little bit. We’re gonna do a brief discussion about the upcoming what would have been a national rail strike.

Andy 0:55
That sounds fun.

Larry 0:57
So it sounds fun?

Andy 1:01
Sounds fun. Well, so before we get going, though, I do have a question that I need to ask you. So since we just crossed our five-year mark, right, and with your age, and retirement, and I’ve now named you as actually Dr. Doom and gloom.
Recorded voice #1 1:18
“How much longer are you planning to stay?”
Recorded voice #2 1:22
“A long time. Get used to me.”
Andy 1:25
What does the rail strike have to do with our issue? Exactly?
Larry 1:29
Well, it doesn’t directly in terms of our issue, but it has to do with political analysis. So we’re gonna get a little bit into the analysis of what happened in the legislation that the President just signed. And a little bit of the hypocrisy and the inconsistent contortions that were played, But I was afraid you’re gonna ask me that. But we’re gonna get into the political analysis. And also, we had a fantastic jobs report, which I want to spend a few minutes on. And then we’re gonna get some listener questions tonight. And then we’re gonna do a segment on Interstate Compact, dealing with probable cause hearings, and we have some articles. So it’s gonna be a great program. It’s gonna last for hours and hours.

Andy 2:11
Probably. Since you mentioned jobs report, I do want to send a shout out to one of our patrons, and a good friend of mine. And he has had a pretty high-dollar job for a number of years. And someone doxed him. They went on to the company website, and they posted and contacted every person–the director, finance, they found all the different people–and they posted and said, Hey, this guy’s on the registry in another state. And two weeks go by, and they fired him.

Larry 2:40
That’s really sad.

Andy 2:43
It’s really like, I mean, that’s a complete SH move. And we talk pretty regularly about is there any way to file anything legally? And first, you’d have to find the person that did it? How would you prove that they did it with malicious intent, beyond just informing them? Maybe they didn’t know it at his job, and he was just informing them. That’s a really murky road to try and do anything with this issue.

Larry 3:10
Well, that gets into some interesting legal areas. Because I don’t know what states we’re talking about, but many, if not the majority of our states, are employment-at-will, meaning that a person can be employed or unemployed. Their employment can be terminated for no reason because the employer maintains that right in an employment-at-will state. Unless, of course, you do one of the prohibited actions related to discrimination, which is largely things that a person can’t help, like the nation they’re born in, and disabilities, and certain things that are prohibited. Be interesting to know if he lives in a state that has an enhanced level of protection. That where you might have a cause of action. And then it would be interesting to know that if he disclosed the fact that he was on the registry, or if they even asked in the beginning, because if they’re firing him now, and they didn’t ask him the beginning, that seems a little bit, no that seems quite wrong.

Andy 4:15
I believe they knew. But it became super public from people that may not have known. I believe his boss knew, and maybe somebody else, but the quote unquote, the Board didn’t know. Once the Board found out, they felt that they had liability and so forth. He is not on the registry in the state he lives in.

Larry 4:37
That’s typically what happens. The lowest levels of supervision, they’re aware of it and are okay with it. But then when all hell breaks loose because of the public nature of the registry, then the public pressure starts being applied. And then it all changes, and the s-h-i-t rolls downhill. And the person who made the hiring and accepting gets questioned why did you make the exception for this? And that’s why no one wants to make any exceptions. But I think that he, depending on the state, might want to seek redress, because there may be some options. And certainly this would help prove the registry itself is the reason for his termination because of the doxxing and the revelation he was on the registry.

Andy 5:23
Yep. Totally, totally. All right, well, enough of that. Please feel free to go on and do your jobs report now, Sir.

Larry 5:31
All right. So yesterday, the Bureau of Labor Statistics reported that the American economy added 263,000 jobs in the month of November, and the unemployment rate remain close to historic low at 3.7%. This report brings good news for working families as the economy continues its transition to steady, stable growth. Since the start of this administration, the economy has added ten and a half million jobs, and there are now more than one million more Americans working than there were before the pandemic. And hear that one more time–we have restored all the jobs, and we’re 1 million above what was the all-time record in the previous administration, and there yet 10 million unfilled jobs that are going begging due to the chronic labor worker shortage. And many of these jobs are very high paying skilled ones such as airline pilots, doctors and engineers. So again, America, when are you going to do something about your labor shortage? We’ve got 10 million people who can be paying taxes. Ten million jobs that would be generating taxes and economic activity, but we’re just gonna let them remain unfilled. Until when? So that was a great jobs report.

Andy 6:47
Yeah, and as I continue to say, this number probably has to change though, the number that I have in my head. It’s 150,000 jobs per month to maintain no improvement or decrement in the unemployment rate. So 263 is a good chunk over that. I don’t know if that 150 has changed any. I’ve never heard an update to it.

Larry 7:06
Well, that’s an elastic number because people exit the labor force. And then when the economy gets stronger, traditionally, people have reentered the labor market. They hear that there’s openings, and they hear that salaries and wages are going up, and people re-enter the workforce, because it’s a magnet effect that brings people back in. It seems like now that even with this chronic shortage, we’ve had a similar number since the end of the Obama presidency in 2016. We had like 8 million unfilled jobs. We hit over 11 million, and we’re still over ten million unfilled jobs. So the strength of this economy, the draw is just not there with all these high paying jobs that are open. And they can’t fill them. At some point, we need to recognize the workers just aren’t there.

Andy 7:56
Yeah, when you have a six-figure job, and someone’s not filling it. Of course, there’s always people that who say, I’m not doing that job because I don’t want to, but I think more so than not, we don’t have the population to fill the job.

Larry 8:10
That is correct. And we have people who get to choose not to work, and I’m going really off script now. But I have a friend whose niece is at the highest level of nurse. I can’t keep those straight, but the highest amount where you could, if you were working, you could be making the highest amount of money. She has that education. She’s in her 30s. And she’s raising a family and she’s choosing not to work. Her husband as a CFO of a hospital. And he makes good money. And this friend, bless his heart, he’s always talking about there’s so many sorry people that won’t work. So I confronted him. I said, well, your niece is a highly-trained individual. She could be providing a great service to the community right now. She could be nursing, and she could be pulling down six figures. Is she one of those sorry, people that won’t work? There are people who choose not to work because their economic circumstances allow them not to work. And that’s the beauty of a free country. You don’t have to work if you don’t want to work and if you can support yourself. She is choosing to raise her children. She’s choosing to be at home. There’s nothing wrong with that choice. But for the greater good she could be in nursing right now pulling down six figures. But that’s her choice. We have a lot of people in the economy that because of their prosperity in the previous couple of decades they’ve accumulated enough money in their 401k. They took early retirement. They don’t want to work anymore. They’re 54 years old. They’ve got the resources not to work. You get to make that choice in America. I don’t know why that discombobulated people so much. You have the right not to work.

Andy 9:52
Does this tie in any way in the rail strike bipartisan stuff that happened in Congress this past week?

Larry 9:59
It does tie in indirectly. The worker shortage is a real issue. The rail strike that was averted through congressional action would have been a devastating blow to the economy because we already don’t have enough truckers. Now that’s a profession that pays reasonably well, and there’s not enough people. That’s why those driverless trucks are going to be in our future because we don’t have enough humans that want to do that work anymore. But since there’s a shortage of truckers, the elasticity is not there for them to take on the shipping. So the Congress quickly invoked–I think it’s something from 1926, that has to do with their authority to regulate the rail industry. And they invoked a settlement at the instigation of a Democratic president. And we’re going to get to bash both the Democrats and the Republicans tonight because both parties got themselves in a contorted position. But the lesson for our listeners is that what drove this was the political necessity. The political necessity is that the economy would take a devastating hit. We don’t know how much of a hit, but it would be devastating to have the rails shut down, and the railroad companies just quit moving freight. So the Republicans, who normally claim that they believe in letting the market resolve its issues, which, by that doctrine–if they really believed it, they would have allowed a strike to happen. They would allow the companies to try to hire what’s called scab workers, replacement workers, or bid up their wages to try to get people to fill the jobs, if they truly believed that the market would take care of it. So they would have stood down and let the workers go on strike. The Democrat party that claims it’s the friend of workers, it would have stood down and let the negotiating process work. And the most powerful, and really the only tool that organized labor has, is the power of a work slowdown or a stoppage. They would have allowed the stoppage to go forward. So the Democrats did a flip-flop. And they use the power of government to impose a settlement. And the party of no government intervention, they did the same thing for slightly different reasons. But they did the same thing. And they protected the interests of the railroad companies to keep them operating. And if they truly believed that competition would fix this, they would let the rail companies deal with the shortage of workers and hire new workers. But truly, they don’t, they looked at the political things, and they know that there’s not enough workers out there, they know that it would be devastating. And they decided to jettison everything else and use the power of government to put the rail situation to rest. Now, it’s going to be interesting to see if they actually work at full capacity. If the workers actually don’t call in sick anyway. To see if there’s any sabotage, which has been known to happen with organized labor. Things break down mysteriously. It’s going to be interesting to see if they work at full productive capacity. Time will tell. But the political lesson is that the considerations won the day, and the Democratic Party abandoned its interest in protecting organized labor. And one more thing, if we had a Republican President right now, and a Republican president had done this, the Democratic Party would be crying foul. They would be saying that they neutered the tool of organized labor.

Andy 13:38
Just in my mind, the vastness of our rail network and the reliance on it feels vaguely similar to us subsidizing our farming so that you have very stable milk prices and bread prices. And those staples do not radically change because we subsidize farmers, even to the point that they if they have a completely failed crop, we pay them anyway so that they will stay in business. And we don’t have this radical flux of farming up and down. This feels similar. The farmers are corporate, private-owned. This is the same–the rails are private company-owned kind of things. Shouldn’t we do something to–I don’t want to say nationalize it–but shore it up so that this type of thing isn’t in play?

Larry 14:26
I don’t know the answer to that. I mean, I agree with what you’re saying. But I’m trying to illuminate that people who claim that they believe in pure capitalism, they really don’t. I mean, you can’t do what the Republicans just went along with and claim that you’re market oriented, because the markets were not allowed to work to see if this could be resolved. And the Democratic Party clearly wasn’t the party of labor because they capitulated. They didn’t get their sick leave. I think it was like seven days a year they were trying to get and ended getting one day. I’m not sure I’ve had the facts right.

Andy 15:01
Yeah, I heard something weird about something with like, oh, three days’ vacation. Like that’s the issue? And I’m sure it’s totally not. That’s some oversimplification and mischaracterization of it all.

Larry 15:12
But there are times when I think that bringing the power of government, like with the Defense Production Act, that was contemplated when Trump was President trying to produce the ventilators and certain things and there was discussion about the Defense Production Act. There are times when it is in the national interest. But then you have to come off your intellectual high horse where you say that capitalism can solve all problems, you have to admit that the power of government is necessary to do some things. You can’t have it both ways.

Andy 15:45
Boy, we could diverge into like 10 different directions from that. But I think we should shelve it there and stop doing the Larry Matters-on-Labor podcast or whatever the hell we would call that. Alright, well, then let’s move over to a question that came in from Mike. It says, “Hello, Larry and Andy. I enjoyed the segment on the interstate compact as I’ve been through that process. There was one area that I believe Larry didn’t mention.” Larry, I thought you mentioned every area. “But he says when it comes to the controlling state, in the case of probation, the conditions set by the court are only the conditions they can revoke you on? Case in point–the receiving state adds some random condition that’s not on your original sentencing court conditions. But you violate that new condition. During the retaking and appearance before the sentencing court, you argue that condition X, this new condition, wasn’t in the original court agreement. I have read in the ICAOS benchbook, that in such a situation a probationer can only be in violation of those original conditions.” So Larry, I give you the floor, and please elaborate.

Larry 16:56
Well, he’s put an organized, coherent thought together. And the truth is we don’t know the answer to this. The bench book suggests strongly that conditions imposed in the receiving state are to be treated by the sending state as if they had been imposed there. But in reality, you’ve got the human factor. You got judges who are sitting in the state that sent the person and allowed them to be transferred. And they say, well, I did tell them that in my conditions of probation, and if they’d a stayed here, we wouldn’t revoke them for that. So therefore, you may have a judge who says, you know, just because New Mexico wants them to do that, we wouldn’t have required that here. So that is a distinct possibility that you may end up in a situation where they wouldn’t revoke you. I think the question he is asking is can they revoke you or are they forbidden? I think they can revoke you. My personal opinion is I do not believe they’re forbidden to revoke you. I say that because when you request transfer, you sign a stipulation saying that you agree to abide by the conditions that are imposed in the receiving state. You sign that knowing that if you refuse, that you’re likely not going to be allowed to transfer. But that, to me, is the same thing as if you go to the probation office after the judge has sentenced you. And the Probation Office gives you additional conditions that are routine in nature, or maybe a condition that the probation officer discovers that that he or she thinks is appropriate for you. They hand that to you and say sign this, this is a new condition of probation. Can the judge revoke you for not following that? I believe the judge can, and I know for a fact that judges do revoke you for things that they didn’t put in their original conditions. The probation officer typically has you sign those, and then they get sent back to the court to be signed by the judge. And they are typically added by the court at the behest of the probation office. But in terms of this is kind of murky. I would be very leery of going back to a state where I had been originally sentenced and saying, Judge, you cannot revoke me, because you didn’t impose this on me. I would be very leery of hanging my hat on that argument. But it’s not without any rationality to it. I mean, he is making sense. It’s just we don’t know the answer to this. We’d have to wait and see. And it would have to go up on appeal. But my feeling is that if you if you agree to the conditions, and you don’t adhere to them, I believe your supervision could be revoked in the sending state.

Andy 19:36
Would you step out on a limb. So one of my probation conditions was–I always love this one–you shall never drive alone, especially in places where children are known to congregate. So let’s just say the state that you started in doesn’t have that. And then you go to Georgia where they do have that. And you say, this wasn’t part of my original conditions. Is that the scenario?

Larry 20:07
Well, you’re making a good point, and I would argue that slightly differently. I would argue that that is an impossible condition.

Andy 20:16
Oh, I know. I know. But it’s there. It’s written and I signed it. I’m like when you say– come to my office? Are you going to come pick me up, so I don’t have to drive? How do you want me to get to your office if I can never drive alone? And you already said never. How can I especially never know where children are known to congregate?

Larry 20:35
Well, clearly, that was not an artfully worded condition of supervision. Did you ever hear of anyone being revoked or attempted to be revoked because of that condition?

Andy 20:45
Absolutely not. Same thing with driving log where you log every mile, you drive to everything, hey, I went to the grocery store, I went to church you did. I never, no one ever asked me about it. And I never did it, either. But so those are two things that you could end up going to Georgia that were not in your state, they go from New Mexico, where maybe they don’t have them, and you end up in Georgia. And they have those two things here. And they say, well, where’s your driving log, and you’re like, I didn’t have these where I came from? Sorry, adios.

Larry 21:15
Well, now, under such a really strange scenario, there’s two different things that go on. You can be retaken and not revoked. So a state that allowed you to go to Georgia, they could communicate to Georgia, we are not going to revoke them for that. But since the compact requires us to retake the person, if they refuse to comply with the conditions that you’ve imposed, we will retake that offender. And retaking is not the same thing as revocation. So they will send you they will send you instructions to report back and be supervised there. Which might be very inconvenient, depending on your life circumstances.

Andy 21:54
Would you do that one piece there? Because he did write that, and I was pleased that he wrote that about the retaking versus the revocation.

Larry 22:03
Well, when they’re there, the whole process is always a retaking–when a person is in a state on Interstate supervision–since the states are being supervised and cannot revoke them. They cannot revoke them. They didn’t impose the supervision, so they cannot revoke it. All they can do is force the person to be retaken by the state that sent them. But when the state retakes them, they still have a choice about revoking them. So retaking is the process by which Georgia says this person is not complying with us. We’re instituting retaking. And you have to retake them out. If the sending state wishes to revoke and try to revoke, they’re supposed to instruct Georgia to conduct a probable cause hearing, because that’s step one. And in the retaking process. If Georgia establishes there’s probable cause, then you go back to Colorado, New Mexico, or whatever state that you named. And then you go back and have a full-blown revocation process. But when you get back, New Mexico is not going to have to revoke you. They can say, well, we are taking them, but we don’t have those conditions here, and we’re not going to revoke him for those. But if you don’t want to supervise him because you have those conditions, then we will supervise him here. But again, that may be very inconvenient for you if you get if you get forced out of the state where you have support and job and stuff. Even though you’re not get even though you’re not getting put in prison, it’s not very convenient.

Andy 23:36
Do you know of a movie with Tom Hanks called “Terminal”?

Larry 23:40
I’ve not seen it, but I’ve heard of it.

Andy 23:43
Okay. So he is from some super-duper, duper, duper, duper small country. And while he’s on an international flight, his country dissolves. So now his passport, visa, and all that stuff are null and void. And he can’t get into where he wants to go to. And there’s no home to go to. So he’s just stuck in–what do you call it where you go to through immigration? What’s that space called at the airport?

Larry 24:10
Customs?

Andy 24:12
So he’s stuck in the custom side of the terminal.

Larry 24:19
They will eventually let him out.

Andy 24:22
I assume that they will. Anything on the ICAOS thing before we go on?

Larry 24:26
Well, I appreciate the great question.

Andy 24:29
This thing–we could almost have a podcast about it, it’s so ridiculously complicated. It makes my head spin every time we talk about it. Ok. This came in an email a little while ago: I have listened to your podcast on military sexual assault on October 24th. Our son is currently serving an eight-year sentence due to a female not wanting to admit she cheated on her fiancé who was deployed at the time the incident occurred and claimed sexual assault. She and my son had been dating for a month. This was in October of 2018. There are so many issues that happened throughout this process. Criminal Investigation Division is UCMJ lawyer, which is the Uniform Code of Military Justice lawyer. And on and on. He was convicted on two counts and got eight years at the JRCF at Fort Leavenworth. We’ve tried to appeal his case two times. And we were denied, with no reason. I’d love to talk to you about this.

Larry 25:32
Well, I do plan on reaching out. Now keep in mind, I have such limited knowledge that I may not be the best resource. But I can at least tell you what comes to mind after I hear, so I’m planning on reaching out at some point very soon. But that scenario could very well happen.

Andy 25:58
Anything else or do we just move along?

Larry 26:00
I don’t have anything else to add other than we feel bad about it. That’s why we had our guests. Now this stuff, this stuff is totally out of control, apparently.

Andy 26:09
Yeah, it seems like it. Seems like you have just slightly more than zero way to defend yourself. Like you could show up with nothing, and you might do better than if you tried to defend yourself because they’d be angry at you for wasting time or something.

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Andy 27:13
Well, then moving along, we picked up a comment on our Patreon feed from Eugene, and it’s about church attendance. He says, “I have been on probation for seven and a half years without an infraction. Then six years ago, I had the minister of a church fill out a form for my probation officer to allow church attendance. Recently, I wanted to attend a different church. But the rules have changed. Now the minister must drive eighty-two miles roundtrip to meet in person with my P.O. I can’t ask a minister to do that. Also, I suspect that he must agree to having an escort follow me to the men’s room or wherever I go in the church, or in the room where the dinner is served weekly. And attractive lady invited me to dinner at the church, and I’m very lonely, with no way to meet ladies. Now, this isn’t the Larry’s Giving-Advice-On-Dating podcast. I assure you of that.

Larry 28:04
Well, what I would suggest is going to be difficult, but it’s the only suggestion I can come up with. And he needs to take a clear look at himself, and take an objective look at himself. Can they justify this as an individualized-tailored condition specifically for him, related to his offense and his characteristics. We get the part that he’s had all these years without an infraction. But what we don’t have is what the underlying offense was. If he offended in a church, I think that that would diminish his claim that these are unreasonable conditions. So I would first ask myself, is this specifically tailored in any way to my profile as an offender? If it is not, if it’s just what they tell everybody that the person has to if they want to go to church, if they have to meet the P.O., and that the minister has to drive to the probation office him. I think that–not being an attorney authorized to practice law–I think that might be erecting too much of a barrier on the free exercise of religion. I think this might be a cause of action that would gain traction, but the first part is the self eval, find out if they can justify it for you, and find out if they’re doing this for others, or if it’s just you.

Andy 29:25
I gotcha. Okay. The one part that I guess that I’m not super clear on is he wanted to attend a different church, and now the minister must drive 82 miles. I’m sure you can find a church that’s closer than 82 miles.

Larry 29:38
Well, the minister is driving 41 miles, but what I’m taking from that as he’s out in a rural area, that he’s changing churches, and this was off the radar until he decided to change churches. Nobody was thinking about it, but he goes in because he feels like he needs to have permission to attend the new church. And then they say, oh, by the way, we have to meet with the minister. So the question is do they have to meet with every one’s minister? Or is it because of his characteristics as his offense goes, if they have to meet with everyone’s minister, and everyone’s minister was asked to drive 40-50 miles. That is, I think, in my opinion, is erecting a very high barrier towards your freedom to worship.

Andy 30:24
I gotcha. Okay, then let’s move along to the Interstate Compact Probable Cause Hearing. Someone wrote in and said, “I’d like to follow up on the last episode regarding Interstate Compact and Probable Cause Hearings. I remember episode 164–” Could grief How do you remember episode 164? I don’t remember whatever we did last week–“when we discussed a case from Colorado. I’ve heard you people talk about it in previous episodes, but what you say does not comport with what they actually do. The lady’s son was in New Mexico serving his Colorado parole and violated. The violations were relatively minor, yet he was arrested and sent back to Colorado. You use the term “probable cause hearing” and claim that a person on compact is entitled to a PC hearing. Her son did not get such a hearing. He sat in the Metropolitan Detention Center for weeks, and eventually he was asked if he wanted to waive extradition to Colorado. He did. If such a right exists, why is it that nobody I’ve ever heard of gets one of those hearings?” Boy, I already know what you’re going to say.

Larry 31:35
So you’re implying that this hearing is a figment of my imagination, right?

Andy 31:39
No, what you’re going to say is that after you’ve sat in jail for some period of time, you’re like, Screw this, I’ll sign the thing. And back to where I came from. I go instead of waiting for where you have access to people that may testify for you and all that stuff. But instead of sitting there waiting it out, you go back.

Larry 31:57
Well, that’s part of our process. But it’s not a figment of my imagination, even though very few people get these hearings. It’s not a figment of my imagination. It’s ICAOS Rule 5.108. The origin of this right is two Supreme Court cases from 1972 and 1973. For the legal beagles, the cases are Gagnon v. Scarpelli, 411 U.S, 778 (1973) and Morrissey v. Brewer, 408 U.S, 471 (1972). ICAOS Rule 5.108 provides that:
(a) An offender subject to retaking that may result in a revocation shall be afforded the opportunity for a probable cause hearing before a neutral and detached hearing officer in or reasonably near the place where the alleged violation occurred.
(b) No waiver of a probable cause hearing shall be accepted unless accompanied by an admission by the offender to 1 or more violations of the conditions of supervision.
(c) A copy of a judgment of conviction regarding the conviction of a new criminal offense by the offender shall be deemed conclusive proof that an offender may be retaken by a sending state without the need for further proceedings.
These things are not a figment of my imagination. They’re reality.

Andy 33:19
And you just spewed a whole mess of legal mumbo jumbo. If a person does have such a right, why don’t they schedule the hearings?

Larry 33:27
Well, that’s a good question. Well, because most state legislatures have not mandated a procedure for the hearings in their statutory schemes. This means it’s up to the correctional authorities to invent a process. And since it’s the correctional authorities who want the offender sent back to the state of conviction. What interests would they have in creating a robust process to establish probable cause? Wouldn’t that undermine their efforts to get rid of the person?

Andy 33:56
Yeah, I totally see that. They don’t want you here. And certainly where you came from, they don’t want you there either. But so I remember that. You said they mistakenly or intentionally offer extradition hearings rather than probable cause hearings? Yeah. We have talked about that, that even the legal system doesn’t understand what these hearings are supposed to be. So what’s the significance of that?

Larry 34:20
Well, the significance is sometimes, depending on the jurisdiction, if a person gets arrested, they have a system in place that automatically says, if a person’s in my jail, they’re entitled to see a judge within so many hours. So they automatically, if they’re in a local jail, and in the jurisdictions that have these processes in place, even though nothing has been filed in the way of a probable cause hearing, they get brought into the court on miscellaneous charges. And the judge asks why is this person in my jail. Why is this person being held? Well, Your Honor, he’s on probation from Colorado. And he’s being held here in Alabama because of a probation violation. While the judge is not real familiar with the ICLs, either, he says, “well, what about this? It seems like to me, you ought to get on back Colorado and get this all straightened out. Do you want to waive the extradition?” And the person says, “well, I don’t like your jail too much down here in Alabama. And they do tend to take better care of us in Colorado.” And they go ahead and sign the waiver of extradition. So then they’ve got a signed document that the offender signed, without the benefit of any legal advice oftentimes, because due to the lack of public defender resources, often they’ve not had any consultation with anybody. And even if they did, the person didn’t know jack about what they were talking about, because they were what we call Guppy Attorneys. They got hired to do first appearances. And they have never heard there’s of interstate compacts. So that’s often what goes on here. But the difference is significant. It’s really different because the scope of the inquiry afforded to a person in an extradition hearing, is quite different, as opposed to a probable cause hearing. The scope in an extradition hearing is limited to the identity of the person and the validity of the fugitive demand. Remember, this person is not a fugitive. They’re in Alabama, on permission from Colorado to be supervised, so they are not a fugitive. So we don’t need to identify them. They’ve already been identified. But an extradition hearing a person who gets picked up. And NCIC reveals a warrant for them in another state. So the only inquiry that takes place in an extradition hearing is–are you the person who’s named in this arrest warrant? And has the state that wants you back that’s making the fugitive demand, have they put the proper paperwork together to make that demand, which includes some documents from the governor’s office? That’s the significant difference. That’s not a probable cause determination. That’s an identity determination.

Andy 37:08
So how would that extra extradition hearing differ from a probable cause hearing?

Larry 37:16
Well, in the probable cause hearing, the offender would be entitled to the following rights–they’d get a written notice of violations, because we can’t do ambush litigation. So the probation people are going to have to show you a list of things that you violated. They’re going to get disclosure of non-privileged, non-confidential evidence regarding the alleged violations. They’re going to get the opportunity to be heard and to present witnesses and documentary evidence, relevant violations, and the opportunity to confront and cross examine the adverse witnesses. Unless the hearing officer determines that there’s some risk of harm to the witness. But you’re going to have a robust proceeding taking place. The probation department is going to tell you in writing what you did wrong. They’re going to tell you who they’re going to call against you, which would be the probation officer usually, but possibly law enforcement, maybe some some civilian witnesses. You’re going to get the opportunity to confront those witnesses and ask them questions in a probable cause hearing. You’re not going to get to do that in an extradition hearing. The judge is gonna say, are you John Paul Jones, born 6/19/58? And you’re going to say, “no, Your Honor, I am not.” And a judge is gonna say, well, then we’re going to force the demanding state to prove that you’re John Paul Jones. It’s going to take some time. I’ll give them 30 days. They’re going to submit fingerprints, DNA, whatever they have, and they’re going to tie you to being the fugitive named in this warrant. You can cool out in our jail. And you can wait. That’s what that’s all the evidence that’s going to be taken in the in the extradition demand. It’s quite different from a probable cause hearing.

Andy 38:58
What we’re talking about, Larry, is like the Miranda rights–you have the right to remain silent. You have a right to an attorney. We kind of sort of all know those by rote memory of watching every legal procedural show that exists. This almost needs to be formalized into an expression like that to tell you have the right to a probable cause hearing. You have the right to bring forth evidence and witnesses, etc.

Larry 39:23
I agree with you. I wish it had happened. But probation authorities are not wanting that to happen, because they want you off of their caseload. I know this sounds so crass and so rude, but if you’re a supervising probation officer, and you’ve got someone you have bad vibes about, you would much rather them be offending in the state that convicted them than in your state. So therefore, they’re going to look for ways to get rid of as many as they can if they have any hesitation about them because they much prefer the camera go rolling in the state of the probation office that’s supervising them and convicted them, rather than answering, “how did that happen here?”

Andy 40:08
This person waived extradition and voluntarily agreed to return to Colorado. Did he disadvantage himself by doing that?

Larry 40:18
Yes, he did. Potentially he did, anyway. Even if they did not revoke him in Colorado, after he got sent back there, he was stuck there. And he had to apply again to be transferred. And had he had a proper hearing in New Mexico, he might never have been transported to Colorado. So we don’t know what would have happened. But we know that he didn’t advantage himself in any way. At best, he basically disadvantaged himself because he has to start the process all over again to come back to New Mexico. And they’re gonna do everything they can to slow that train down.

Andy 40:50
It does sound to me like it would be significantly better to have the probable cause hearing. So how does John Q. Public, when they end up getting locked up for some sort of revocation, how do they get this probable cause hearing? How do they get such a hearing?

Larry 41:06
I wish I could answer that I have not been able to rectify this problem, systemically. I’ve had some success on a case-by-case basis by filing, a pleading called a petition, a notice of demand for a probable cause hearing in the receiving state. So that’s what your attorney would file. The problem you have is that most of the attorneys are not up to speed on the ICAOS, and they’re hesitant to file such motion, because they’ve never seen it before. And trying to file it because remember, you don’t have an action going in the state were you’re being supervised. So there’s no case number to attach it to. So you have to go into the old-fashioned courthouse the old-fashioned way. And you have to get a clerk to agree to let you file something under miscellaneous case number. Because normally, it would be filed under your sentencing case number, right. If there’s something to be filed, it would be filed under your sense sentencing case, where you don’t have a sentencing case. Because in the state you’re being supervised, you’re a guest there being supervised as a courtesy, so you don’t have anything. So the attorney is trying to pull their hair out trying to figure out and I tell me, you file a miscellaneous case, well, how do you do that? Well, in this day of electronic filing, you have drop down menus. When you go on, you got people like Andy, who set up these platforms, and they’ve got things all neat and clean for you to select to drop down, but they don’t have a miscellaneous filing of a notice of demand for a probable cause hearing. So you can’t open a case in the state of supervision. So due to all the barriers and the confusion, it just never happens. And the people end up agreeing to go back to the state. It’s a tragedy, but it happens.

Andy 42:50
Oh, god, is this a mess? What I’m thinking is that everyone that is on PFR-type probation should have your number tattooed on the inside of their eyelids. That way, when they do get arrested for whatever, they can look up your number and call you and have you help them find the attorney that will represent them best, and you can advise them on how to go about it. That just sounds like that would be the smart move.

Larry 43:18
I could indeed if these people had enough money to buy my time.

Andy 43:21
Oh, I see. I thought you were free.

Larry 43:24
Well, I am on the public dole now.

Andy 43:26
You’re cheap and sleazy, like on a bathroom wall. No, that’s not you?

Larry 43:31
There’s one other thing that you can do that conceivably could throw a monkey wrench in it. You could file in your state where you were sentenced, you could file a notice of a demand for a probable cause hearing in the receiving state. Now, of course, that court cannot force the receiving state. Remember, if you file something in Colorado court where you’re sentenced, and you say, I’m debating a probable cause hearing in Alabama, they don’t have any jurisdiction to force Alabama to do anything. But what you could do is put the court in Colorado on notice that their revocation is going to be tainted by the fact that you haven’t had this probable cause determination, which may limit their options when they finally get you back because you weren’t brought back by the legitimate process. That’s another thing you could do. Again, you’re going to have pushback from the attorneys because they’re gonna say, “well, you know, once we get you up here, we’ll just straighten this all out with the judge. I’ll talk to the DA, and I’ll get this all worked out.” And you say, “I want you to file this just in case the DA is not reasonable. I want the judge to know that the process by which I was returned to Colorado has been tainted because I wasn’t given a PC hearing in Alabama.”

Andy 44:38
God, what a nightmare. Like for real. Unless you’re in Alabama or some state like that, it is probably better to just stay where you are until you’re done with your supervision and can then move without having to bother with this. This is such a convoluted, complicated mess.

Larry 45:00
It is indeed. It absolutely is. And a lot of people don’t have that option. They get their sentence there and they have nowhere to go. And they have connections in the states that are not very desirable to go to. But the other option is to either be held in prison like in Illinois, where they hold you in prison until you do not have a place to go. They do the same thing in my state. They hold you in prison until you have a place to go. Or your other option is to go someplace where you have some level of support and hope you can work your way through it. And that’s what they choose to do.

Andy 45:33
Sure, sure, my God. So I thought we had a talk pre-show about you are going to be happy and positive and inspirational. But no, you deliver this garbage.

Larry 45:43
Well, I thought I was delivering it with happiness and inspiration.

Andy 45:48
Okay, yes. Somebody already said Scary Larry. All right. Then we will move on. We have some feature articles that you have provided for us this evening. Shall we move over there, sir?

Larry 45:59
Sure. Let’s do this one. This first one is gonna be fun because we already talked about it on the last show, except it’s a different state.

Andy 46:05
Okay, so this is from the Texas Tribune–Prison firm MTC accused of billing Texas for inmate treatment programs it didn’t provide. Now that’s fun. One of the country’s largest private prison companies has defrauded Texas by collecting millions of dollars for improperly billing the state for thousands of unmanned prisoners for in-prison therapeutic programming it hasn’t provided during the pandemic, a new complaint filed with the state auditor claims. Now that is funny, Larry.

Larry 46:41
Well, you think that’s funny? That’s odd, but I’ll go along with you. It is funny.

Andy 46:49
In 2020, as the coronavirus killed thousands of prisoners across the country, a push to release more people eligible for parole was met with firm resistance by the Texas Board of Pardons and Paroles. And the board continued requiring most prisoners approved for parole to first complete treatment programming, which generally takes three to nine months and focuses on life skills, substance abuse rehabilitation or treatment for those convicted of sex offenses. What did the company do that was illegal, Larry?

Larry 47:23
Well, Texas prisons largely kept men and women confined to their cells or dorms, and people inside told The Texas Tribune in 2020 that much of the required programming wasn’t occurring. On Monday, prison rights advocacy group LatinoJustice alleged that despite the lack of services, Management & Training Corporation continued charging the state for the programs and forced prisoners to falsify documents stating they had received treatment. Now you have to admit that’s funny if true.

Andy 47:55
That is definitely funny. This isn’t the first time MTC, a private prison operator which also contracts with state prisons for rehabilitation programming, has faced fraud allegations. Just last week, Mississippi’s state auditor demanded MTC pay nearly $2 million on guard shifts, after an investigation by The Marshall Project.

Larry 48:23
Well, I always hear people that lean conservative talk about fraud. And fraud is a bad thing. But it seems like their voices become very weak when it comes to corporate fraud and large-scale fraud. They worry about, in these conservative states, they worry about food stamps, they worry about the person taking a drug test, they impose all these regimens to make sure that for their get their $200 worth of SNAP benefits. They have to be clean and sober and all this stuff. And they allege fraud. Well, I don’t condone fraud. But I would like to hear the same amount of anger when it comes to this type of fraud. And I’m hoping that the governor of Texas, who just got resoundingly reelected, and the governor of Mississippi, I hope these governors will be on their high horse about fraud and find it just as obnoxious as the fraud they tend to be so critical of. Because fraud is fraud, and they shouldn’t be doing it. If it’s true. Remember these are allegations. The presumption is, right now, that MTC has not done anything wrong. So they can choose to force both states to prove these allegations, or they can agree to settle. But right now the presumption is they haven’t done anything wrong.

Andy 49:50
I gotcha. Um, anything else here before we move into the Reason article?

Larry 49:55
Now that’s enough on this.

Andy 49:57
Okay. I do think that this will be funny, Larry. No, it’s not funny. Alabama Jails Woman for Endangering a Fetus that didn’t exist. Another woman. The lawsuit alleges false imprisonment after arrest for endangering fetus that didn’t exist. Another Alabama woman has been jailed for using drugs while pregnant. But this time there’s a twist: she wasn’t actually pregnant. Her young child merely told a social worker that she was, according to the woman’s lawsuit against local law enforcement in Etowah County. We’ve covered them before Larry, Etowah County.

Larry 50:37
Yeah, this is quite entertaining. And we want to get who got who got locked up? Again, folks, we’re supposed to validate charges before we file them against people. I’m not sure a child’s recollection that Mommy’s pregnant would be sufficient before I would seek a warrant to arrest someone for endangering a fetus. I would like to have some documentation that there actually is a fetus. I mean, that’s not too much to ask.

Andy 51:07
This is totally just on the heels of the Dobbs decision then too.

Larry 51:14
Well, I’m not seeing the connection. But what are you saying?

Andy 51:17
The connection would be that if abortion is not a legal thing, and Alabama then is one of the states that would say no, under any circumstances at all. And so here you are–let’s just say that she did these things and harmed the fetus–then you are committing a crime against a human being. That’s where this comes from.

Larry 51:38
That is correct. And that’s why they locked her up.

Andy 51:41
Right. So this is totally on the heels of the Dobbs decision. This is an impact of it, and an effect of it.

Larry 51:48
But they didn’t have the requisite evidence. I’m not even getting into a debate about whether it’s right or not. When you level a criminal complaint prosecutor–I know there’s dozens of you out there listening–you have a higher ethical duty under the rules of professional conduct. You need to know that a crime has occurred within your jurisdiction. And you need to have significant evidence that points towards the person whose liberty you’re about to put in jeopardy and their reputation in jeopardy, that they committed a crime. If you don’t know the person’s pregnant, you don’t have proof of that. You’re a step ahead of yourself. You could hold off on filing charges until you actually have the requisite evidence. You don’t file the charges and try to build a case later, which too often prosecutors do.

Andy 52:36
Right? That’s, that’s a really bizarre article there. She wasn’t even pregnant. And I’m laughing and I’m sorry, if you were the one in prison, I am not laughing at you. That is just really high on the redonkulous scale. Have you heard of that word before, Larry? Redonkulous.

Larry 52:54
I can’t understand how our transcriber’s going to spell that. We’ll find out.

Andy 53:01
All right, from the AP news. Oh, God, we’re gonna get bashed for being a lefty and whatnot. Wave of Sex Abuse Lawsuits Seen as New York Opens Door for Victims. Sexual assault victims in New York will get a one-time opportunity to sue over their abuse starting Thursday, under a new law expected to bring a wave of allegations against prison guards, middle managers, doctors and a few prominent figures including former President Donald Trump. For one year the state will waive the normal deadlines for filing lawsuits over sex crimes, enabling survivors to seek compensation for assaults that happened years or even decades ago.
Come on, you’ve got to side with the victims. What could you possibly find wrong with this, Larry?

Larry 53:45
Well, I don’t have a side in this other than I work on the defense side. And on the defense side, old allegations are virtually impossible for a person who’s been accused to receive a fair trial. And in a civil setting, which is what we’re talking about here, the threshold of proof, the burden of proof is far lower. So you’re talking about just a preponderance of the evidence. So if someone brings decades old allegations against you in a civil setting, a) you don’t have the right to counsel to be appointed for you if you don’t have money, because you’re not at risk of losing your liberty. But they may sue you anyway, as a part of going after the deeper pockets of whoever you’ve worked for or whatever entity you were involved with, be it the scouts, be it the university or your employer, and therefore you’re not going to get a fair shake. You’re going to be more concerned about it, of course, if you have assets to lose, because you’ve worked all your life and you’ve accumulated a little bit of wealth and you’re 58 years old, and somebody says you did something when you were 28. And they clean you out. You have a very low level of proof required in a civil case. So what’s wrong with it is that the person can’t get a fair trial. That’s the only thing that’s wrong with it.

Andy 55:03
A person in chat says I’m currently being sued by my victim because of a temporary look back period on statute of limitations, revocation, and sex crimes in DC. So then it goes on, “I feel like I’ve been in jail for almost three decades said the person who’s 49 and said she was abused by the millionaire and notorious sex offender Jeffrey Epstein when she was a young woman. And it’s more than time for me with other victims to be free of that prison that we’ve been in and for the people who are accountable to be held accountable. And what would you say to the individual being reported with?

Larry 55:43
I’d say that I’m sorry that this happened. And it’s too bad the allegations weren’t brought in a timely manner. I’d also say that justice indeed has an expiration date, because people are entitled to fairness. And people can’t receive a fair adjudication and trial decades later. So I’m terribly sorry this happened. It’s unfortunate, but in my mind, it’s too late.

Andy 56:12
All right. And then finally, we have an article from Source, New Mexico, I guess. Source, NM?

Larry 56:19
Yes. What on earth. Why did you drag this crap in here for?

Andy 56:24
New Mexico’s public defenders say they have too many clients and nowhere near enough attorneys to represent them. Without more funding they say people accused of crimes are losing out on their constitutional rights to adequate defense and due process. When someone is charged with a crime in New Mexico, there is a good chance that they can’t afford their own attorney and must be provided one by the state. And among those attorneys, many are not actually employed by the state Law Offices of the Public Defender but are contractors instead. Why do you people have contract attorneys when you have a statewide public defender system?

Larry 57:20
Well, a number of reasons. Some of our counties are too small to justify having a public defender office. We’ve got a county that has 1000 people in it. And another reason is that the public defender can easily have a conflict with a case. For example, there may be multiple defendants, and it would create an ethical conflict for the public defender to represent multiple defendants that were involved in the same case. So, therefore, they will send out the additional defenders to contract attorneys. So there’s a number of reasons why that happens.

Andy 57:51
I would also imagine that depending on the kind of case, a public defender could be just out of their league. It could be a very significant case–I’m thinking OJ Simpson type of case–and you’re the public defender, you’re like, I don’t know what to do with this. I assume that would also be a scenario.

Larry 58:06
I would like to think that’s not as likely the scenario here because of the highly specialized nature, and we’ve got a great system here. It’s not great enough, obviously. But we do have some highly specialized units where they send complicated cases too, so of it’s a complicated case, you’re not going to end up with a first-year law student or first year attorney. So I would I’d like to think that’s not really the reason. But people look at it that way. They think their case is just so complicated that only a private attorney can understand it.

Andy 58:42
I mean, the difference would be very procedural, I suppose. But whatever. And when a contractor takes on, for example, a first-degree murder case, they are paid a base rate of $5,400. For the whole case. That means, on average, that attorney is making $13.81 per hour representing their client, according to a study of New Mexico public defenders’ workloads published in January. “Those numbers should shock us,” Rep. Ryan Lane of Aztec told the Legislative Finance Committee on Tuesday afternoon. Are you shocked, Larry?

Larry 59:25
No, not at all because we’ve had this problem for many years. But let’s give credit to Representative Lane for his recognition of the problem. Because he’s a Republican, he represents a very conservative part of the state. And typically there’s not a high level of support for public defenders increasing those resources. So let’s see if we actually increase the pay for the contract attorneys, but I appreciate Representative Lane’s position.

Andy 59:52
The office is asking the Legislature for $13.2 million more from the state’s General Fund — about 21% more than what’s being spent now on public defenders. The request includes $4.2 million to increase contract attorney compensation, $1.2 million for in-house attorney compensation, and $5.7 million to add 60 full-time staff, including 30 attorneys. The request for funding more staff is based on recommendations from a four-year-long workload study released in January that found three times more defense attorney hours are needed across New Mexico to provide adequate legal representation. Do you think they will get the money?

Clinton Laugh Track.

Larry 1:00:46
No, they will not get anywhere near that amount of money in my opinion. I mean, they will get an increase. Financially we’re doing okay because of the elevated energy prices. About a third of our state revenue comes from energy production, be it natural gas and oil from the Permian Basin. But you also have every agency looking for more resources, every single agency that of the state government, whether it be the taxation revenue department that collects the taxes, whether it be the children, youth and families department that works with children, whether it be infrastructure, roads, whether it be prisons, everybody’s wanting more money. And it’s going to be difficult when you start looking at the requests that are more popular. When you look at what all state government does, things are far more popular than representing criminals. And therefore, when you’re divvying up new funding, which we will have a lot of new dollars in the state budget this year because of the high energy prices. It’s a lot more vote voter friendly, to give those monies to other programs, like the Department of Veterans Services. Now, would you rather go out campaigning on what you had done to improve the life of veterans? Or would you rather go out campaigning on what you had done to improve the life of people accused of crimes? Tell me, which do you think you would garner more votes?

Andy 1:02:17
I’m pretty sure the veteran issue would gain you a whole lot more popularity.

Larry 1:02:21
So therefore, they’re not likely to get this amount of money. And we’ve had this discussion over several years. And they’ll get they’ll get an increase, and it will be probably above the rate of inflation. But I’ll be shocked if it’s 21%. I’ll expect it to be more in the eight to 10% range.

Andy 1:02:41
All right, sir. I don’t have anything else on the schedule for this evening, do you?

Larry 1:02:47
No. And you see why we pull those articles because we would have run out of time.

Andy 1:02:52
And one of them was super short, that we probably should have covered anyway. But we will get to it next week. I tried to ask them again, if that if we can do anything about the podcasts getting on the on the tablets in prison. That’s what one of them was about. But I will address it more fully next weekend.

Larry 1:03:10
So that was one thing that I that I had forgotten that was in there. And that was what I’m getting more than just the one I put in there. I’m getting regular inquiries about that. Maybe we need to task someone that’s got more time on their hands, maybe even a transcriptionist to get on the old-fashioned phone and start calling people because they’ve not been very receptive to email communication.

Andy 1:03:33
Right. I mean, I followed their procedure and I had emailed someone. They emailed back and said, go to this website and fill out their form. I know that I filled it out before, and I filled it out again tonight, and it says we’ve received it, and we will get back to you shortly. And I mean, we’re a 501c. We are trying to provide factual, non-biased, nonpartisan information about how to help people be productive, get out, follow the rules, navigate this whole thing. And that’s what we’re trying to do, and I mean, I could have just thrown it all in the trash.

Larry 1:04:08
Well, I’m over my head in terms of I can’t really be of any help. But I would like to, if people have tablets and can listen to us, I would very much be supportive of that. It’s not really about the money, it’s about the information. They will come to us when they get out and be appreciative of what we provided to them.

Andy 1:04:28
And it’s obviously a captive marketplace. And these are the people that need the information, probably the most dissed mostest.

Larry 1:04:35
I would say so because they there’s such a lack of information that’s reliable. They get all sorts of rumors and misinformation, and we’re trying to clear it up as best we can. Sometimes we tell you there’s not a really a clear answer to the question.

Andy 1:04:51
Sure. Well, very good sir. Find all the show notes and everything that you need over at registrymatters.co. You can find phone numbers and links and everything over there at the Registry Matters main page. And we didn’t get any new Patreon people. I can double check really quick, but I don’t think there were. Do we get a new snail mail people?

Larry 1:05:12
I think I’ve got five coming our way soon as the person provides the names to me.

Andy 1:05:17
Oh, that’s true. And then I also sent you another one from the guest we had on a few weeks ago, right?

Larry 1:05:23
Yes, yes. I think I activated it, but we’ll make sure. But I think I activated that one already.

Andy 1:05:29
Very good. Well, that is all that I have for everything. And we had a pretty good crowd listening live. So those are the patrons and I appreciate you all so very much. Thanks for hanging out. There was good chat tonight. It wasn’t like a bunch of crickets. And I know that you were following on with bated breath watching those people chat in there, Larry.

Larry 1:05:48
Yes, indeed. I am.

Andy 1:05:51
Have a great night everybody, and we will talk to you soon. Take care. Goodnight.

Announcer 1:05:58
You’ve been listening to FYP.

Listen to RM238: Douglas Lindsey v. the FDLE | People Of State Of NY v. Matthew Corr
https://www.registrymatters.co/podcast/rm238-douglas-lindsey-v-the-florida-department-of-law-enforcement-people-of-state-of-new-york-v-matthew-corr/

https://fypeducation.org/wp-content/uploads/2022/09/rm238-douglas-lindsey-v-the-florida-department-of-law-enforcement-people-of-state-of-new-york-v-matthew-corr.png

RM 238 Recorded 9-18-22
Douglas Lindsey v. the FDLE | People Of State Of NY v. Matthew Corr

Announcer 00:00

Registry Matters is an independent production. The opinions and ideas here are that of the host and do not reflect the opinions of any other organization. If you have problems with these thoughts—F.Y.P.

Andy 00:18

Recording live from F.Y.P. studios, east and west, transmitting across the internet. This is episode 238 of registry matters. It is 238, is it?

Larry 00:28

That is correct.

Andy 00:30

Oh good. I got it right this time. Happy Saturday night. How are you, sir?

Larry 00:35

Well, I was doing awful. I mean, doing well, until I tried to clean my tub. And now I’m doing awful.

Andy 00:41

You know, so my solution to that much like my kid hurting his stomach and it hurts to breathe. Don’t do that.

Larry 00:46

So don’t clean the tub.

Andy 00:50

Don’t clean the tub. Although, what are you–170? You can find someone to clean it. Like you’re just you in your house, right? It’s just you. More or less?

Larry 01:01

More or less.

Andy 01:03

More or less. Like, how often do you clean it—weekly or monthly?

Larry 01:07

Every two or three months when I can’t stand it any longer.

Andy 01:10

Okay, good. Just hire someone to come in there every month. I’m sure you can afford it, Larry.

Larry 01:17

Well, if F.Y.P. would compensate better, maybe.

Andy 01:22

Alright (laughs). So step up your patronage so Larry can get a cleaning person to clean his shack. Is that what you’re saying?

Larry 01:28

I like that idea.

Andy 01:30

All right. We’ll get on that one. Would you be so kind, sir, to tell me all that we have going on?

Larry 01:39

Well, we have a spectacular outline for tonight. We’re going to be talking about an individual who wrote a long explanation about no means no, but yes does not always mean yes. And he explained in great detail about what the process is when you’re accused. And under the Uniform Code of Military Justice. We obviously can’t read all that. But I picked out a part I liked to read. I thought it was quite interesting. And we have a case that was just decided in the 11th circuit court of appeals regarding moving out of state from Florida, and I put that in at the last minute. So have you read that case from cover to cover two or three times?

Andy 02:34

Two or three times.

Larry 02:36

Okay. Then we have a case out of New York that has to do with an issue that is of great interest about the Full Faith and Credit Clause. So the theme is going to be the Full Faith and Credit Clause tonight, in terms of both cases. And we touched on that on the last episode. So we’re going to be zeroing in on what the Full Faith and Credit Clause can do and cannot do.

Andy 03:06

All right. I guess we–oh, wait, did you finish?

Larry 03:10

I think you have something that you’re going to put in that had some chatter about a potential seventy-year sentence.

Andy 03:17

Yeah, there’s an article from one of our recent guests from a prominent magazine that I wanted to make sure that we featured. I wanted to make sure that we brought that to everyone’s attention. So that’ll run the show. Right?

Larry 03:35

Are we going to do that article at the end? Or at the beginning?

Andy 03:38

Yeah, we’ll do that at the end. So the first thing up is to be read from JRCF, which–I can’t remember what JRCF means.

Larry 03:49

The Joint Regional Correctional Facility over in Fort Leavenworth. That’s where a lot of our former–I guess they’re still military. I guess they don’t kick everyone out. But they’re serving sentences of varying length. And I think they’re shorter sentences. I think they have another facility over there where they serve longer citizens. But this was a something written, and I just took out a part of it. It was good stuff. We may publish some of it in the NARSOL newsletter.

Andy 04:17

All right. So the title is “No Means No. But Yes Doesn’t Always Mean Yes.” Why any of this should be an issue at all is the bigger problem. “Because consent can be withdrawn at any point to include long after the fact. Now, the idea of withdrawing consent is completely unquestionably legitimate. Just because someone willingly participates in sex does not mean she cannot stop at any point. If you agree to go up in an airplane, you can still change your mind about skydiving. The problem is the concept of withdrawing consent after the fact sometimes long after the fact, as there is no statute of limitations in these cases. Now, women are not literally saying ‘I said yes, but I changed my mind now.’ That is one step too far toward being ludicrous. What they do instead is stop one step short of that and say, ‘I said, Yes, but I was too drunk to have consented,’ and offer as proof only their recollection of being intoxicated, and at best, the recollection of some friends. This is why the war stories, and all the disgusting glory are so necessary. Guilt or innocence hinges on the memories, sometimes distant ones, of highly intoxicated people. There’s literally no other instance where such logic would be acceptable. After all, you can change your mind about jumping only up to the point you step out of the airplane door. Imagine a person on trial for vehicular homicide testified that she could not be held responsible for agreeing to drive because she had been too intoxicated to have agreed to do so. As evidenced by the fact that she threw herself up right before getting in the car.” So yeah, that’s a problem there.

Larry 06:02

Well, there’s much more to that submission. We need to find out how to validate it. The person who authored it was not the person that sent it to us unless they’re using a pen name. So we need to communicate with the person, but that there may be some of that published. But it’s kind of scary because you can withdraw your consent and say, “Well, I was intoxicated,” and you bear no responsibility for being intoxicated.’ I’ve never been intoxicated in my life. And I do not know how a person becomes intoxicated without some participation. So you guys, please enlighten me on that.

Andy 06:41

I can see like some frat stories where you’re held down, people push the keg tube into your face, and you’re like, you know, college pranks. But beyond that, that one is tough to figure out like, maybe people slip stuff into your drink.

Larry 07:00

Well, now there’s drugs that they do that where they render people incapable—

Andy 07:10

Roofies! You know, Larry, I do want to bring up one thing. I got a whole mess of crap last week for not knowing what a White Claw is, and I just want to reiterate, I have like, I don’t think I’ve ever been drunk in my life. On a count of five fingers is how many times I’ve had alcohol in my life. I’m just not a drinker. So leave me alone, man. It’s not fair.

Larry 07:30

What is a White Claw? Because I didn’t know either.

Andy 07:34

It’s a hard seltzer when I looked it up. So I guess it would be like a ginger ale. But now it’s got booze in it, and flavors. Somebody says it’s a girl’s drink. So there you go. There’s that.

Larry 07:51

All righty. Well, the other thing I had to mention is back in June, we received–actually, the first packet came in March for a person at the same facility. Then a much larger package came in June. And because I am particularly said that I really don’t understand the Uniform Code of Military Justice, and how parole works. And the person sent enough material that I can understand it now. I’m not claiming to have read every page. And the person didn’t expect me to read every page. But I’ve read enough of it that I think I understand it much better now. And it resembles the old federal parole system prior to 1984 when the Sentencing Reform Act was passed. And I intend hopefully to reach out to the person’s contact on the outside in the coming couple of weeks. And find out if that person would like to explain in more detail what I still don’t understand. Because it is of interest to the audience about making parole, and this person, at first glance, it looks like they’re being denied parole from the documents without a lot of justification. So, I’m not in a position to pronounce that with any authority, but it looks like they’re jerking him around.

Andy 09:12

And then I guess you want to do the Florida case.

Larry 09:18

Yes, that’s the 11th Circuit Court of Appeals. I’ll have you set it up.

Andy 09:23

So let’s do this. And you put this other case, of course, it’s something you did last minute. So we have a bone to pick. I get everything all set up later. And you’re like, oh, by the way, here’s this thing last minute. So here we are. Last minute. It’s a Douglas Lindsey versus Florida Department of Law Enforcement. It’s in front of the United States Court of Appeals for the 11th circuit. Can you remind the audience where the 11th circuit is? Also tell us what it encompasses or who is in the 11th circuit.

Larry 09:52

It is in the southeast United States. Geographically it’s relatively small. It includes the states of Georgia, Florida and Alabama.

Andy 09:59

Let me expand on that how so? Let’s see 10 million people in Georgia, probably 25 or maybe 30 in Florida. Alabama has got like 55 people that live in it. So you end up with what the ninth circuit that’s got, like a third of the country in it.

Larry 10:13

That is correct.

Andy 10:16

They’re obviously not broken up in any sort of representative way. So the 9^th Circuit–is it actually bigger than the 11th Circuit?

Larry 10:27

Yes, it has more judges, and it covers the largest geographic territory. What happened in the creation of the 11th Circuit is going to be difficult to replicate. Jimmy Carter was president, and at that time, there was no 11th Circuit. And the courts were claiming that they were grossly, grossly overworked and needed more judges. So they created a lot of additional judgeships, which Carter got to fill. And they created the 11th circuit. And they carved it out of other circuits, primarily the Fifth Circuit. So prior to that creation, if you were in Georgia or Alabama, you would be in the Fifth Circuit, which was in New Orleans. And I don’t remember if Florida was in that circuit. Now that they created this circuit, the bipartisanship that existed then to create an expanded judiciary doesn’t exist. First, it was a Democratic plot to pack the court if you want to expand the judiciary. They did a similar thing with George HW Bush. I forget how many. They didn’t create a new circuit, but they created a significant number of new judgeships. But it’s going to be hard to replicate that again. So that’s how we end up with 11th circuit. They split up the circuits and created the 11th. There was talk of doing that in the Ninth Circuit, but it’s not likely to happen anytime soon.

Andy 11:47

Really. Okay. And you said Carter, so late 70s,

Larry 11:51

Late 70s. Yes.

Andy 11:55

So it hasn’t really been that long. It’s not like it’s been that way for 100 years. So this is something somewhat mutable.

Larry 12:00

It could be done again.

Andy 12:03

And I recall through the years that we’ve done this podcast, you haven’t been excited about the type of challenge Lindsey was making. His issue is that he remains listed on Florida’s public website, even though he doesn’t even live there. He’s no longer required to register in his home state of Oklahoma. And I got to wonder, Larry, do you people have zero heart. Do you have no heartbeat?

Larry 12:25

Well, I think I have a pretty big heart, actually. But unfortunately, the courts are not supposed to decide issues based on emotion. And I’ve been trying to analyze this through the years based on the facts. And the fact is that Mr. Lindsey was once registered in Florida, and it’s historically accurate, which means his claim is weak to put it mildly. And until the United States or a state within the United States adopts a law that a person can cite to that there, at the moment, there is no constitutional right to be forgotten. And remember, folks, I don’t make the rules. I’m just a messenger. I wish such a challenge were viable. But unfortunately, in my humble opinion, it is not, as it existed in that case. Now there would be an instance where such a case would have much more viability, and that would be in a case like with Wisconsin, because Wisconsin continues to allege that it has control over you. Florida doesn’t. Florida just says you sailed off into the sunset, you were here, and we’re reporting that. They scrubbed the address, I think from where you were living, and they say living out of state, and Florida has dealt with you. Wisconsin takes the position that you owe us $100 A year monitoring, and you must continue to keep us informed as to where you are. That would be the same as Wisconsin state, you have to continue to pay your vehicle registration fee, even though you’ve taken your vehicle to Florida. So the way the challenge was set up in this case, he had a very weak claim. But that’s not to say that a correct they set up challenge would have viability, but this one didn’t. I said that to him. And I’m saying it again. Now. The fact if you’re listed on a registry, that in and of itself, is not enough under our current law to get you any type of relief.

Andy 14:21

And according to the court, Douglas Lindsey appealed from the district court’s dismissal of a suit against Richard Sweringen in his official capacity as Commissioner of the Florida Department of Law Enforcement, Mr. Lindsey argues that based on an Oklahoma State court order finding that he was no longer required to register as a PFR. In that state, Florida’s PFR registration resume is unconstitutional as applied to him under the Full Faith and Credit Clause. That sounds familiar. What’s wrong with his argument?

Larry 14:51

Well, before we go there, let’s set up the case a little bit more. Lindsey had been deemed a level three offender under their own risk-based system in Oklahoma. They used to do an evaluation of risks that they scrapped at some point. I don’t remember the year, but in June 29, Lindsey filed a motion for review of his lifetime risk assessment duration. And in September of 29, Oklahoma District Court issued an order finding that Lindsey was level one PFR. And pursuant to its authority under blah, blah, blah, it determined that based on the new designation and the absence of any legal trouble for a period of 10 years, he was no longer required to register under the old OSORA. Soon thereafter, he was removed from Oklahoma PFR Offender Registry, rather than staying put he moved to the great state of Florida, that keep track of the time because we have the dates here, so go.

Andy 15:43

Okay. In 2011, Lindsey moved to Martin County, Florida. He did not register as a PFR. In November of 2017, the Florida Department of Law Enforcement, which maintains the registry informed him that he was required to register. Lindsey complied. This is probably the failure right there. He should have gotten out of Dodge. Later then, in June 2019, Lindsey formally requested that the Florida Department of Law Enforcement remove him from the Florida registry based on the Oklahoma order. The FDLE denied his request, stating that because he was released from the sanction imposed for his qualifying crime after October 1 of 1997, he had a requirement to register in Florida. So tell us what happens next.

Larry 16:29

Well, before I do that, I would just like to point out that from 2011 to 2017, that hovercraft took a while to find him.

Andy 16:38

It seems like it did take some time.

Larry 16:41

Yeah. Now what we don’t know is if he got ratted out by someone who knew that he had the old conviction of Oklahoma, or if he encountered some law enforcement. They don’t have to tell us that. And I’ve had dug deep enough in the into the lower court, I might would have found what triggered this information. But it’s not like the hovercraft picked up right away. But anyway. In August 2020, Lindsey moved back to Oklahoma. As a result of that move, Florida Law no longer requires him to provide his registration update information or anything for Florida. But the Florida registration remains publicly available, including on the internet. And therein lies the problem he and many face.

Andy 17:19

So then, according to the court, as a general matter, for a person with out of state convictions like Lindsey, residency in Florida triggers the registration requirement. Lindsey specifically was required to register because his offenses of conviction–the sanctions from which he was released after October 1, 1997–were similar to certain enumerated offenses under Florida law. He’s not in Florida any longer. So then, Larry, why can’t he be removed–along with the other 50,000 people in similar situations?

Larry 17:50

Well, they could be, but they have no right to be under law. But according to the court under Florida law, specifically 943-0435, subsection 1h, 1a, some PFRs may petition for removal of the registration requirement after 25 years, but not those convicted of offenses such as sexual battery or lewd lascivious offenses or similar offenses in another jurisdiction. And then they go on to say the Florida PFR simply does not provide a mechanism for removal from the Florida registry upon domicile outside the state. So it’s just not in the statute.

Andy 18:24

I do honestly think, though, Larry, is seems like a no brainer to me. So he’s no longer in Florida. And the court itself said the Full Faith and Credit Clause requires the states to recognize and give effect to the public acts, records and judicial proceedings of every other state. US Constitution, Article four, they went on to say the purpose of the Full Faith and Credit Clause “was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded, as of right, irrespective of the state of its origin.” He has an order from Oklahoma. Let’s see you spin your way out of this. You people need to figure out how to spin your way out of this.

Larry 19:17

Well, I’ve just got to rely on what the court says because the court disagrees. They said, “according to Lindsey, the Oklahoma order is a final judgment entitled to exacting full faith and credit in Florida. Like the district court, we disagree. Mr. Lindsey’s 1999 Oklahoma convictions remain in place and their validity is not in question. This is not a case, therefore, where the underlying conviction has been set aside. And the Oklahoma order based solely on Oklahoma law, that is the authority granted to the Oklahoma district court under Oklahoma law does not purport to bind any other jurisdiction. Nor does Oklahoma, as a general matter extraterritorial jurisdiction to exercise police power in Florida.”

Andy 20:07

Thank you. I would like to say that that would be extra-terrestrial for you.

Larry 20:11

So, the fact is, as I’ve said many times on the podcast, one state cannot relieve you of another state’s obligations.

Andy 20:22

And another state is, therefore not obligated to follow what another state does. It goes in either direction, either in your favor or not in your favor, right?

Larry 20:31

Well, that’s what the case law appears to say in this particular case. This was a non-published opinion. And I didn’t put that in our plans. But a non-published opinion is not binding precedent. It’s kind of like a decision from another jurisdiction that you can cite. And you can say what brilliant analysis it is. But you can’t compel any other court in the 11th circuit to follow it. But the courts are not finding a lot of sympathy for this argument so far.

Andy 21:05

And you said this came out in the last day or so. So you haven’t done a full Larry-Analysis of it. You’ve done just sort of a cursory overview of it.

Larry 21:15

I’ve done an analysis of the 11th circuit, but not the underlying District Court. The district court decision may have been more comprehensive, but I didn’t read that part of this, because it just I just actually got it last night when I sent you that message.

Andy 21:30

Well, we need to probably get out on this one. The court concluded that “the Full Faith and Credit Clause does not direct us to resolve this conflict in Mr. Lindsey’s favor. In fact, it prescribes just the opposite as the Clause does not require Florida to substitute the OSORA” for the Florida PFR act, citing Hyatt 578, U.S. at 176. They said, “Florida has a legitimate interest in prescribing the manner in which it protects the health and welfare of its citizens” from persons convicted of PFR type offenses. So what else do you have before we move on from here?

Larry 22:11

Well, the court also stated Florida need not dispense with its preferred method of doing so because another jurisdiction has less restrictive requirements on PFR registration, as the District Court essentially recognized, even if Oklahoma did not have any registration requirements for offenders like Mr. Lindsey, the legislative choice would not prevent Florida from enacting a PFR registration scheme. So you can come to Florida and say, I don’t have to register. And they can say, too bad. So sad. You shouldn’t have come here.

Andy 22:45

Um, I do have to wonder. So somewhere in there, what we just said is that Florida has legitimate interest in prescribing the way it protects the health and welfare of its citizens. Isn’t that a condition where we could go back with evidence saying that this doesn’t do what you’re saying it does?

Larry 23:07

You could, I don’t think it’s going to gain traction. Because it’s not a rational basis. The test that gets applied to this, whether something works or not, is not a part of the evaluation to what you were looking at. Is it rational to want to protect the safety of the community? Yes, it is rational. So that is the inquiry.

Andy 23:34

So we don’t need evidence to support a rational basis. Just because it’s a logical statement to make. It doesn’t require evidence to back it up.

Larry 23:41

It does not a kind of free society would be in a free society. We get to impose irrational laws on ourselves.

Andy 23:52

And is there a type of inquiry that the evidence would be required?

Larry 24:02

Well, as you’re going up in the review standards, you’re to intermediate scrutiny. And then strict scrutiny? Yes. Where evidence is required with strict scrutiny, when you’re talking about the First Amendment, it must be a compelling governmental interest. It must be shown by evidence, and it has to be the least restrictive means to achieve that government interest. But in terms of just having a law, we can restore the 55 mile an hour speed limit tomorrow. There doesn’t need to be a shred of evidence to support that.

Andy 24:29

Okey, dokey. All right. Well, then, so we’ll move on to the New York case.

Larry 24:35

I suppose so I feel bad about this. Because there are a lot of people who really do believe that I’m crazy when I tell them this. And I got even some grief when I said something to the effect of it’s only a website. And I don’t mean to diminish a website. It’s not a fun thing to be on. If you’re presented an unfavorable light, but you have no reporting obligations. You have no disabilities or restraints. Your life is not altered. Now if Mr. Lindsey wants to come forward with real evidence how this is altering his life, he is free to initiate a new cause of action. He can put forth some kind of ridiculous theory that he might not be able to travel internationally, because he’s listed on Florida’s registry. It’s hypothetical until he’s denied travel. Now, of course, my position is that I don’t deny anybody the right to travel, you just have to provide the notice. But he is no longer required to register in any jurisdiction. He would only be required to register in Florida if he were to return there. So he’s merely listed on a website, folks with no disabilities or restraints other than the fact that it’s an emotional thing. Most people would prefer that their dirt not be aired publicly. I would agree with that, wouldn’t you?

Andy 25:53

Oh, without a doubt.

Larry 25:54

It’s like, if you had an ugly divorce, most people would probably prefer that the divorce allegations, and some of that file be sealed from public exposure, and they do their very best. But he’s got to show how he’s being harmed by this. The fact that he doesn’t like it, is not enough. I don’t like what’s on the internet. I’m sure that all of us find things of this less than flattering now in this in this digital era that we were living in. But not liking it doesn’t make it unconstitutional.

Andy 26:24

It’s government-sponsored doxing or sanctioned doxing.

Larry 26:29

It’s my understanding that they’re not really putting out any information on him that’s private. I think they’re just listing the fact he was there. There’s no address attached to it. He was registered at one time in Florida. That’s historically correct.

Andy 26:44

Gotcha. All right.

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Andy 27:34

All right, so this is New York. You people put this case in here and named it People of the State of New York versus Matthew Corr, and that’s C-o-r-r. And that’s from the Appellate Division of the Supreme Court of New York, Second Department. It has to do with the clock restarting when a person moves to New York. And I think this case fits nicely with our last episode dealing with the Full Faith and Credit Clause. Larry, you’ve developed a theme here for the last two episodes. The last one had to do with the Full Faith and Credit Clause as well. Tell the audience in less than–I’m going to make it one minute–what this case is about.

Larry 28:11

Sure. According to the court, “this appeal presents an issue of first impression as to the duration of registration and verification of a level one PFR, who was convicted of a qualifying offense in another jurisdiction, registered another state and subsequently established residence in New York.” Is that fast enough?

Andy 28:31

I believe you did it perfectly. And I read the case twice now. And it’s so blatantly obvious that the court got it wrong. Can you at least admit that the court got it wrong?

Larry 28:43

I’m leaning in that direction, but I can’t admit it.

Andy 28:47

Dammit, man. Okay, so the court stated, we disagree and hold that the initial date of registration referred to in that statutory provision means the initial date of the offender’s registration with the Division of Criminal Justice Services pursuant to New York’s PFR Registration Act. If Mr. Corr was registered in another state and subsequently relocated to New York, how can there be any a question about his initial date of registration? Doesn’t the word initial mean the first date of registration?

Larry 29:18

Not necessarily. Depends on the language of the statute.

Andy 29:23

You’re hopeless. So upon moving to New York, the court did not contest the risk level designation, but instead argued that the date of his registration under Sora should be made nunc pro tunc. Larry, I don’t know what these words mean. What do these words mean?

Larry 29:42

Well, it’s an order issue today as is if it had been issued on the previous date. It’s Latin, and it simply means now for then.

Andy 29:52

Alright, so nunc pro tunc to January 29 of 2016. The date that he first registered in Massachusetts, he asked the Supreme Court to credit his registration and verification requirements with that time. Please tell me what nunc pro tunc is again?

Larry 30:10

It means you’ve set up the order as if it had been issued then. So it means now for then. So what he was wanting was an order from the court crediting him with the time that he had been registered in Massachusetts.

Andy 30:27

Is this like backdating a check?

Larry 30:31

Sort of. A court sometimes makes some mistake. They get the judgment wrong. So you go back and correct the order, and you want the order to have been effective from the date that it should have had effect.

Andy 30:47

So like retroactive.

Larry 30: 50

Then the order is titled nunc pro tunc. So it precedes the previous order, and it would make it effective.

Andy 30:53

Okay, I gotcha. And so I note that the court stated, “It is fundamental that a court in interpreting a statute should attempt to effectuate the intent of the Legislature.” “As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof.” What does this mean?

Larry 31:17

It means words matter. They are interpreting what the word “initial” means in the context of Mr. Corr’s registration. When did he initially register? “Where a statute describes the particular situations in which it is to apply and there’s no qualifying exception added, an irrefutable inference must be drawn, that what is omitted or not included, was intended to be omitted or excluded.” So the legislature did not include anything that said credit. So that’s what they’re saying, “hey, we just wear these robes, we don’t we don’t make the law.”

Andy 31:58

So sometimes you have judges that overwrite law, and then other times you have them saying, “Ah, we’re staying away from that one.” I did zero in on that they stated “here, the legislature addressed a PFR like relocation to New York from another state in Correction Law Statute 168-k and did not provide that the duration of registration in New York was impacted in any way by the registration in another state.” Had the legislature intended to diminish the registration obligation of such a PFR, it easily could have so stated that they went on to say at the provision concerning PFRs, whose crimes were committed outside of New York and who establish residence in this state has been amended numerous times, yet the legislature had not provided the duration of registration in New York should be pro forma reduced by the amount of time the offender was registered in another state. Now, I know where you’re headed.

Larry 32:55

Correct. The court concluded that “the legislature’s failure to provide such qualification compels the conclusion that in intended for a PFR established in residence in New York, to register for the statutory period time, from the initial date of registration in New York, following the board’s determination that the offender is required to register with the division pursuant to SORA.” So I’m sorry, folks, but words matter. If you want to be credited there–just as we have tried and failed in this state to get credit established in the statute–we don’t have it. So when you look at the old statute, it says what it says. And I know you wouldn’t want judges legislating from the bench, would you?

Andy 33:41

We’re back to the Full Faith and Credit Clause. Did Corr argue that?

Larry 33:46

He did argue that on appeal. But unfortunately, the Court held that court’s contention that the Supreme Court’s denial of his request for the Full Faith and Credit Clause of the Constitution is unpreserved for appellate review. It appears that he did not develop that argument below which precluded it from being reviewed on appeal.

Andy 34:06

Do you think someone else later could argue that?

Larry 34:09

I think they absolutely could do based on the case that we just did, I’m not as optimistic as I was a week ago. But absolutely, this is an argument that is worth making.

Andy 34:24

Interesting. These are kind of wonky. These are a little bit in the weeds for my little pea brain.

Larry 34:35

I don’t they’re not complicated. You’re just making it complicated, aren’t you?

Andy 34:41

That’s probably very true in the grand scheme of things. Probably very true, Larry.

Larry 34:48

What I would say is that the lawyering on this case could have probably been better. You know that any argument you’re going to make on appeal you need to make in lower court. You’ve got to give the trial judge an opportunity to rule against you. And if you’re going to argue Full Faith and Credit, you need to develop it in lower court, and you need to get denied. Now, it could be that he had a different appellate lawyer who was trying to reach for something and raised it first time on appeal. But as a rule, courts are not going to entertain an argument first time on appeal if it wasn’t argued below, because the trial judge didn’t get a shot at it.

Andy 35:25

Again, wonky. You’re talking about some lawyer strategy stuff that I think goes above at least my pea brain.

Larry 35:34

Well, when you think about the court system, the appellate courts are fewer in number. You may have hundreds of trial judges out there in a state, and you only have one court of appeals. Therefore, they cannot be reviewing everything that you could have done and giving you an opportunity in an appellate forum to do what you should have done. That’s all they’d be doing is trying cases all the time. Because everybody would think of something that they didn’t do, and that they could have done. Therefore, they just can’t review on appeal what you didn’t develop before. You’ve got to give the trial court an opportunity to rule on your issue, even if you know that they’re going to rule against you. And that’s difficult, particularly in criminal settings for people when the judge is not buying it. And the judge is conveying with their body language yet to say, look, Your Honor, I need for you to let me lay the record for appeal. And if you practice in front of that Judge regularly, it’s hard to say, “Judge, I need you to stop. Because I’m playing the record. I know, it’s going to make no difference here. But I’m making a record.”

Andy 36:39

And if I’m not mistaken, the upper-level courts don’t introduce new evidence. They’re just basing everything from the lower courts on the evidence presented at that time.

Larry 36:51

That is correct. And that’s the angst a lot of people have when they go into this Smith versus Doe, because the facts that the Supreme Court used were decided by the parties below it. And I say that despite the fact there are legal gurus out there that have written all these articles and published them about how they got it wrong. And my opinion, they got it exactly right as the law existed in 2003 in Alaska. There was no punitive effect of the Alaska registration at that particular time. So they got it exactly right. You need to get over that. And you need to develop the evidence now to show that generation of registries no longer exist. You need to build an evidentiary record. You need to argue with the court. When the court doesn’t let you build your evidentiary record, you need to set it up so you can get a remand so you can build your evidentiary record below. But you need to get over Smith versus Doe. It’s ancient history, and let’s move forward from here. The parties stipulated to that evidence to the facts as they existed by the way they manage that case from beginning to end.

Andy 37:58

And if you will indulge me for a minute–I was having a conversation with someone recently. And I presented a lot of what you just said. Just for my edification that I responded the right way–we need something of an exceptional plaintiff, under the right conditions, with a lot of disabilities and restraints-to start running something up the flagpole, and it needs to go through the lower courts, the middle courts, the intermediate courts, the High Court all the way to get to the Supreme Court. Then the Supreme Court has to be willing to hear it because they see something wrong with what was done to the person. So that they could then essentially do something that overturns Smith.

Larry 38:40

That’s largely correct of what would need to happen.

Andy 38:44

They don’t just wake up one morning and say, “Oh, shit, we got this wrong. Let’s go back and revisit this ‘03 decision, a 20-year-old decision. And this is where they got it wrong.” They don’t do that.

Larry 38:54

But they don’t have the authority to do that. A case has to come before them. Now they’ve had opportunities to take cases dealing with this issue that they’ve declined. Remember, they declined the Pennsylvania case. They declined the Michigan case because they were not convinced that there was anything that they needed to review. So they declined to grant certiorari to both of those cases. But at some point, there could be an egregious enough case where they could revisit registration, and they could come up with a different holding. I’m not optimistic about this particular court. And I haven’t been for some period of time, but I can’t control what people file certiorari petitions on. You know, there was a guy in Kansas–you remember the case–what are we litigating? He went to the Kansas Supreme Court, and the justices are asking “what are we litigating?” It’s one thing to disagree with the points but it’s another thing we don’t know what we’re litigating. Whenever you have a case that say, you know–

Andy 39:50

I think I need to capture that audio and just hold on to it. What exactly are we arguing here?

Larry 39:56

Why are we even here? I can’t and control where people will file cert petitions on. But I can tell them that this Court as it is constructed right now, doesn’t have a lot of empathy. This is not the Earl Warren Court that came out with all the things that prisoners cite to the right to remain silent. The Gideon decision. Brady versus Maryland. That court doesn’t exist. That court hasn’t existed for a long time. And they’re not inclined to do anything. But people continue to say, well, we need to get a Supreme Court decision. That’s fine. Let’s go for it. But let’s build a case correctly, with a registration scheme that is very oppressive, and that has lots of disabilities and restraint. And we box them in, and we say you can’t continue to ignore this. Your court said in 2003 that you allowed this to stand in Alaska because it didn’t impose any disabilities of restraints. You said in 2003, that they’re the seven factors used to determine if something that’s called a civil regulatory scheme is truly civil, regulatory, and non-punitive. Using those seven factors, we have demonstrated by evidence below that we’ve met five or six or seven of those factors. You cannot continue to say that this is not punitive. And hopefully, that would work. But what happens if it doesn’t? What happens if that case gets there and they say, we choose to stick with Smith versus Doe? Then we were set back for another 25 years.

Andy 41:28

And 100 grand.

Larry 41:32

Well, I’m not even worried about the 100 grand, but you’re set back for 25 years. It goes to the states that have even considered any reduction in requirements–the floodgates would be open for the law enforcement apparatus to come in and say, “Oh, well, we can stack on more. We don’t have as many restrictions here as that state did, and the Supreme Court said that was okay.” And then suddenly, you’ve got the license and open door to make the registry even tougher. This is a risky business, folks. This is a very risky business that we’re in in terms of what we’re trying to do. We must be very judicious and very cautious about how we take cases to the court.

Andy 42:12

Then one final question before we move on to article two. Did the Michigan and then the Pennsylvania ones not being heard by the Supreme Court improve or not improve the situation overall?

Larry 42:30

I don’t think it really altered anything. First of all, that court that started those cases don’t largely exist because there’s only a few of the justices that heard them left. But they didn’t need to hear those cases because they were pretty cut and dry. They were decided largely under state constitution, particularly the Pennsylvania one. And so there was no jurisdiction there. The Michigan case, I think was decided on both. It’s been a while back now. I don’t think it really changes anything. In terms of this court–this court is not your friend, folks. It’s not. Get over it. It’s not. You want to believe that it’s for small government and it’s going to end everything. It isn’t.

Andy 43:11

All right. Okay, um, let’s see here, then there’s that article. Emily Horowitz, who is a good friend of mine and a friend of the podcast. If you go back to the episode that we did at the conference, she was a guest host and a guest on the program with a panel. She had an article published in Reason magazine. The title is “18-year-old faces possible 70 years in federal prison for Snap Chat texting crime.” And I wanted to pretty much just ask you a question or two. And basically, I’m confused that it says, so he was 17 when he was doing this. So in my brain, he would be charged as an underage person. And the individuals that he was communicating with were, as far as I understand it, 16 years old, so only a year difference. But he’s not an adult. And as I understand it, is that they waited till he turned 18 before they filed charges. And that makes my head spin around in circles. Like, if the crime was when he was 17, then shouldn’t they apply the laws to him as a 17-year-old? What’s the deal with them waiting till he’s 18 to then really put the hammer down?

Larry 44:27

Well, I don’t know the answer to that in its totality. Generally speaking, you’re correct. When a person commits a crime, it’s the penalty scheme that was available to them to the prosecution to the court at the time they committed the crime. That’s the basic Ex Post Facto Clause. We cannot subject a person to a different statutory penalty that would have been available. It gets a little bit murkier than that though, because sometimes the person could have been prosecuted as a juvenile and then could have been prosecuted as an adult, even though they were 17 or 16. There’s the potential they could have been prosecuted either way based on the prosecutor’s discretion.

Andy 45:05

Well, if I’m a prosecutor the crime must be super heinous. Like I think of John Malvo, one of the DC snipers. The snipers are underage, and they decide to go charge them as an adult for the crime.

Larry 45:14

That is correct. In some state it is the prosecutor’s discretion. They don’t have to follow anything in our state. It’s a very, very rigid prosecution process where they have to show that there was a non-amenability to treatment before they move a juvenile to adult court. And as I’ve said many times about Sam Donaldson, the younger they are–he was 14 at the time when he killed the father, mother and sister. And he was tried as a juvenile here, and he is already out of prison because they can’t keep them past their 21st birthday. But in this instance, since I don’t know the federal practice, I’m not sure what the Feds options are with dealing with underage offenders. It may be that he can be prosecuted as a juvenile or an adult. It may be discretionary. But, folks, he’s not going to get the 70 years. That’s just a maximum penalty–if everything that they potentially have charged, and he is convicted. If he were to be found guilty, not negotiate a plea, that’s a maximum stacking the charges, but nobody gets the maximum. Seldom does that ever happen.

Andy 46:24

What about the 292 from last week, man?

Larry 46:27

Well, that wasn’t a maximum number.

Andy 46:28

He was sure he was going to get 400 or something.

Larry 46:31

He was facing well over 500 years. He only got about half of it. I mean, what is your complaint?

Andy 46:40

Okay, sorry. So if he gets somewhere roughly half of the 70, he’s looking at 30 and change. He’s only 18 years old, and he’s going to serve more time in prison than he’s been alive. Good grief.

Larry 46:54

Well, not so simple. First of all, we don’t know. Just like the internet user who did this once. This looks like there was a substantial amount of this stuff happening, at least based on the story, right? This was not a guy who just stumbled upon it one day and did it once. Is that the way you read it?

Andy 47:14

Something along those lines, yes. I’m still at the 17- and 16-year-olds having access to the technology to take pictures of the junk and just press go. The friction level is so low. Back in your day, you had to take it to the Photo Mat place and get it developed, and you’re going to get in trouble at that point, it would be hard to develop photos at home on your own. Now you just you have a full 4k production studio just sitting on your iPhone or Android phone.

Larry 47:42

So well, if he does choose to negotiate a plea, he will be able to probably get rid of many of those counts. And that’ll be a part of the prosecution negotiation–you got 20 counts; you reduce it to five or whatever. And then he accepts responsibility by negotiating a plea. They have this sentencing scheme where they look at the severity level. So you want to you want to start with getting the prosecution to agree with that you plead to the least serious crime. So that drops to level and then there’s the career history points, it’s hard to imagine that he’s had has any career history of crime, that’s going to be significant in the calculation as, as young as he just has moved beyond his juvenile status. But so they start with those factors, and they’re going to come up with a range of sentencing. He’s going to be subjected between X number of months and X number of months, and the judge is going to be able to pick between those, and the attorney is going to put on mitigation that he’s amenable to treatment, he’s young, and on and on and on, and all this kind of stuff. And hopefully he doesn’t come out with seven years, but she’s trying to illustrate the point. And the point is well taken, that these sentences, the potential exposure is enormous, and therefore you have to come in and cut a deal. I mean, I can guarantee you confessed, he told him how he did everything. He admitted that it was his, there’s nothing to work with, other than trying to set aside the confession that he made, and that’s difficult to do. So he’s going to end up with a negotiated outcome.

Andy 49:24

If I can turn over to the technology side for a minute, even if they were across the street neighbors, because the Snapchat servers are located in California, it’s the equivalent of him getting in that airplane flying over to California using the Photo Mat to develop the photos and then transporting them back. So now he has distributed CP across state lines. And that’s how the Feds get involved because of all those little bits–ones and zeros. They are not following what path you would think of that short little hop across the street. They’re going all around the globe. So you end up with interstate commerce and possibly like international commerce.

Larry 50:06

Absolutely. Well, it was noted in the article that under Kansas law, he probably would have been facing something like four to 20 years. But he’s not under Kansas law.

Andy 50:18

Yeah. Just simply because he used Snapchat. If he found a platform that was local to his neighborhood or something like that, and then it may not have traveled across state lines. But you know, Larry, I like he used Snapchat. So then the prosecutors just put together like the cookie cutter answer. They didn’t go trace that the images are sitting over there. They just know that’s where they went. So therefore, then they have a federal jurisdiction. They don’t have the photos sitting there from Snapchat servers. I can almost guarantee you that.

Larry 50:50

You’re way over my head. I don’t know what they have.

Andy 50:53

That’s garbage. Someone just posted in chat–Don’t talk to the police. I think we did that recently.

Larry 50:59

We did that. But his public defender had recommended he take a plea that would keep his incarceration at 20 years, and perhaps, maybe as little as 12 to 15.

Andy 51:10

But still a lot of time for 17 years old.

Larry 51:13

But he said he recently receives some good news. He sent a note to the judge pointing out that he was just a month away from September 27 trial date and still did not know how the public defender plan to argue the case. This moved the judge to dismiss the public defender and allow a pro bono lawyer to take over. So now his trial has been pushed back indefinitely. So maybe the case will take on a different course now with a new attorney coming in.

Andy 51:41

Pro bono means–I’m not trying to bag on public defenders–someone that can focus time and attention on it at a normal level of workload attorney, obviously doing this for no money. Is that what that means? Right?

Larry 51:56

The pro bono does mean without pay. I don’t know that that pro bono attorney is going to necessarily have a lot more time. The Pro bono attorney could be driven by the notoriety of the case and want to get his or her name out there into the public domain.

Andy 52:11

I see. Someone trying to make a name for themselves.

Larry 52:14

It’s a possibility. I don’t know.

Andy 52:17

Okay. Is there anything else that you would like to cover? And let’s say five minutes before we shut this thing down?

Larry 52:26

Shut it down. We’ve only been going for like 15 minutes.

Andy 52:30

Yeah, yeah, exactly. 15. How about 51? And change?

Larry 52:33

What is wrong with you people?

Andy 52:35

I know. And I’m okay going like longer, Larry. But apparently some people hurt themselves and they want to go home. Maybe they’re loopy pills are actually kicking in. Okay, so maybe instead of an article, can you commit to when we will do a Chat with Larry episode? When you would be willing to come online and talk to our peoples?

Larry 52:57

Let’s do it. Tonight from now till midnight.

Andy 53:01

I can’t announce that to people in advance of. Well, are you willing to stick around though? I’ll go tell everyone.

Larry 53:09

No, let’s tell them before the month of September is out. So it’s either next week or the week after? Because we got two more episodes–no we got one. The last one will be on the first.

Andy 53:21

Yes, that would be on the first. So can you tentatively give me a day this week?

Larry 53:27

So I will do that? Yes.

Andy 53:29

Okay. All right. So is there an article you would like to cover? Or should we just let it go.

Larry 53:36

So I think that we have done a huge amount of work in a short amount of time. So maybe short is better.

Andy 53:43

I’m okay with that. I think that’d be just grand. And so without anything else, I will bid everyone adieu. You can find all the show notes over at registrymatters.co. You can leave voicemail at 747-227-4477. And email registrymatterscast@gmail.com. And of course, support us on Patreon at patreon.com/registrymatters. Or if you want to go over to go to fypeducation.org. There’s a donate button for a onetime donation to the 501c we have. And without anything else, Larry, I hope you have a splendid evening, and I hope you feel better.

Larry 54:22

Thank you. Well, you forgot one thing–to hit subscribe.

Andy 54:26

Oh, I did. Alright, I’ll do it right now. Go find all the subscribes and the likes buttons. There you go.

Larry 54:34

Give us five-star reviews and talk on the YouTube channel. There are not enough people responding. A guy did make a request on YouTube this week. Did you see that?

Andy 54:45

Is it the one about what is F.Y.P. stands for?

Larry 54:48

He told us that we should provide some entertainment for the holidays.

Andy 54:54

Oh, I know what that means.

Larry 54:57

He suggested that we do a duet of A Little Drummer Boy.

Andy 55:01

No, that’s not happening. I have a mission this year. I am perfectly poised that I will not listen to a single Christmas song through the whole holiday season. That is my goal. Every year it is my goal, and I usually fail, but that’s my goal.

Larry 55:15

You people, what is wrong with you?

Andy 55:18

Yeah, I’m just Mister Bah-Humbug. Well, Larry, I hope you have a great night, and I will talk to you very soon.

Larry 55:25

All right, good night.

Announcer 55:34

You’ve been listening to F.Y.P.

Listen to RM248: Does child pornography drive sex offender laws?
https://www.registrymatters.co/podcast/rm248-does-child-pornography-drive-sex-offender-laws/

Download the transcript here
https://fypeducation.org/wp-content/uploads/2023/02/RM-248-Final-Print-Copy.pdf

Announcer 00:00
Registry Matters as an independent production. The opinions and ideas here are that of the host and do not reflect the opinions of any other organization. If you have problems with these thoughts, F.Y.P.

Andy 00:18
Recording live from FYP Studios, east and west, transmitting across the internet. This is episode 248 of Registry Matters. Good evening, fine sir. Happy second episode of December? Yes, this will be the second episode of December. How are you?

Larry 00:32
It is indeed the second episode in December. And I’m doing okay considering my age.

Andy 00:39
I know right. To doctors you’re like a first impression kind of person for them. They have never seen the likes of you before, of that advanced age.

Larry 00:49
That is correct. When they run my blood and when they look at my joint, they say that it’s remarkable, unlike anything they’ve seen in their whole medical practice.

Andy 01:02
Very good. Let’s see–anything you want to banter about? Can we talk about politics? Please? Can we piss off people?

Larry 01:12
I don’t think we’ve got much political on the agenda tonight. I don’t. Although indirectly, everything is related to politics, but I’m not doing any economic analysis tonight or anything like that.

Andy 01:25
Do you have any comments about Brittney Griner being released for the trade for Dr. Death or whatever his name is?

Larry 01:35
What? I just said there was not going to be any politics.

Andy 01:43
Doesn’t seem like a fair trade.

Larry 01:46
What’s unfair about it?

Andy 01:48
He is like–I’m saying that human to human, they have the same value. But she is–I don’t want to diminish it that much–but she’s simply a basketball player. And he is like a known arms dealer, like running around killing people. She throws balls in a hoop.

Larry 02:06
Well, I don’t know anything about what he did or what he was convicted of. So I’m talking without sufficient information. But isn’t there a legitimate market for arms sales? Isn’t the United States the biggest arms dealer on planet Earth? I mean, don’t we sell more armaments than every other nation?

Andy 02:24
That’s probably true. Well, they’re approved by Congress, so it is we the people that do this, right?

Larry 02:32
Well, what was the nature of the arms he was selling? I don’t know. I don’t know enough about it. But anytime we can get an American free is generally a good thing. Like former New Mexico governor and UN Ambassador Bill Richardson said–human for human. We certainly could have decided to leave her there had we wanted to. But yeah, she’s home. And the Russians have–

Andy 03:00
–There was a lot of pressure. There was a massive amount of public pressure to do it.

Larry 03:04
Absolutely. And the Russians have said they’re willing to trade Paul Whelan, or to keep the door open to negotiations. But they want spy for spy. He’s been convicted of spying. And they say that they want a spy for a spy. I have a couple of observations. First of all, I don’t know just because you’re a Marine, that doesn’t make it that potentially that you’re a spy. I don’t know that I can come to that conclusion.

Andy 03:29
Fair.

Larry 03:30
So he very well could have been spying in his capacity of a Marine. But the fact of the matter is he was convicted of it, correct?

Andy 03:38
Yes.

Larry 03:39
Just as she was convicted. Americans become very righteously indignant when some foreign national is convicted here, and they think that our laws are too harsh. And we tell them, well, these are American laws, and you have to abide by American laws when you’re on American soil. But the same thing would be true when you’re on Russian soil. If you’re not allowed to have CBD oil, that is their law. Their penalty schemes are just what they would like just as our excessively harsh penalty schemes are up to us as Americans. And it’s really difficult for us to have the high horse about penalty schemes while we incarcerate at a higher rate than any other nation, including Russia.

Andy 04:21
So moving along. I was minorly involved in this conversation. Somebody posted something, so I jumped in after an individual made a comment. The person said, and we were talking about sex offender laws, most of these draconian laws are not voted on by the people. They’re just made law by the government to further their own agendas and make themselves look good to the people. And I wrote back and said that most everything is done by proxy, meaning we vote for a candidate to represent us to do the things that we want them to do. So very few things are a pure democracy. Am I wrong? That’s what I wrote back. And so the response was, and this is where I want you to give me some commentary. [whispers] This is also related to someone that said something on YouTube. So I said, in that way, then yes, you would be correct. If you voted for your candidate, you voted for laws that plague us then just you have to know your candidates’ intentions before voting, I guess. But then I write in my candidates, when I vote, Mickey and Goofy are gonna win one of these times. Can’t be any worse than the morons we got now. So Larry, if we have morons, we can fix this. If you don’t like Kyrsten Sinema, if you don’t like Mitch McConnell, if you don’t like any of them, you can unvote them.

Larry 05:45
I’m truly puzzled when a person will make a comment like that. And it’s part of my real frustration and sadness. Of the five years we’ve been doing this program. Because I’ve tried to be straight up and down the middle with factual presentation. Although people accuse me on YouTube of being otherwise, I try to give country concrete examples of what the public policy proclamations are. We play it as straight as possible. When someone runs for office, and they campaign on a platform that they’re going to be tough on crime, that they are going to make sentences harsher, that people need to suffer and be incarcerated for long periods of time to keep the community safe. And they vilify the other side of the aisle that wants to let people out and have second chances. And they weaken the first step act, and they do these things. We give the concrete examples with supporting evidence. We give the sources. We play the audio clips of the people speaking this themselves. And your job as a citizen is to pay attention to what people are telling you. They tell you what they are for and what they would like to do and which way they lean. Trust them on that. That would be who you are, it would behoove you to do that. Trust them when they tell you that they believe in law and order, trust them, because that’s what they mean. Now, there are things they tell you that they would like to do this or not able to do because we live in a democratic system where you have to secure other support than your own. So you might want to close Guantanamo, for example, which Obama pledged to do. He was not able to achieve that goal, because there wasn’t support in Congress for closing Guantanamo, although they did dramatically reduce the population of people being held in Guantanamo. And of course, the people that tend to lean conservative were very much against that. They said they were turning loose terrorists to fire on Americans again. But I’m really disturbed that someone will make a comment like this. You don’t directly vote on whether we’re going to make a felony a misdemeanor or a felony, or whether we’re going to make this a fourth degree or a second- or first-degree felony, you’re correct. You don’t vote on that. But you vote on the person who runs for office that will make those decisions. You have an opportunity to give them input when they’re on the campaign trail and tell them that they don’t represent your values. And that if they persist with that position, that you will be withholding your support and possibly voting for their opponent. That’s your responsibility as a citizen. Voting for Donald Duck or whatever he said he would do, that’s just a childish written reaction that is not productive and that does not move the ball forward.

Andy 08:51
All right. Let’s move along to a listener question that came in. He writes: I’ve listened to the two episodes about interstate compact and you people are too much. What good does it tell us that there is a right to a probable cause hearing and then turn around and say that you don’t know how to enforce the right. What good is a right that cannot be invoked?

Larry 09:20
Who said that?

Andy 09:22
That’s a good question.

Larry 09:26
Well, I don’t think that I said that the right cannot be evoked, nor did I even suggest that to my recollection. To the contrary, I suggested that 1) the right should be raised with your attorney, if you’re in that position, and not to waive the probable cause hearing and do not agree to an extradition hearing, rather than a probable cause hearing. And I said that if nothing works, then you should have an issue to raise on appeal that you didn’t get the proper due process during the retaking and revocation proceedings that were held. But that is somewhat of a good question, because a right that exist but it cannot be enforced, particularly if no one seems to know what you’re talking about–it’s very difficult. Oftentimes, you’re already convicted, but you’re sitting in a probation violation detention facility. And you have very limited access to communicate with attorneys. And the conditions are usually not optimal for long-term staying, and you want to get out of the place. So it’s very tempting to sign anything just to move the process along. But those temptations should be weighed against the fact that you may be put back in a state that’s quite a distance from where you’re being held in detention. And you may not be able to have what would be considered a proper revocation hearing because the witnesses that may support your version of what happened are in the state where you’re serving your probation, and they’re not going to be able to make it to the other state. If you’re in Alabama, and your revocation is going to take place in Idaho, having witnesses that are favorable to, are they going to be able to go to Idaho to testify on your behalf?

Andy 11:21
All right. Moving along, then, sir.

Larry 11:26
Well, that’s about all I can say. I agree. I mean, I’m aware of this conundrum for the difficulty in getting these probable cause hearings. I think this will bleed over to one of the articles that we talk about later about bail reform, where you see systemically just because something has been established, right. And you assume that attorneys should know the process, and judges should know. When we get to that segment, I think we can tie these back together. And it’s an established right and has been established since 1972 or 1973. This is long standing case law– that you have the right to a preliminary determination of probable cause before you’re shipped across the country. This is not anything new.

Andy 12:12
Well, just so from my own personal point–when everything first started hitting the fan, I was like, Man, I got this, I can handle this, I’ll go talk to them, I’ll clear this whole thing up. So right off the bat, we play that whole session from the law professor, that’s don’t talk to the police session. We don’t teach that. So you don’t know what you should do. It’s something that you most likely don’t have a lot of experience with of dealing with the whole apparatus, the whole industrial complex that it is. And then after the fact, like you just want to keep your head down and keep your nose clean, and but then some kind of revocation hearing thing comes up. And you, again, don’t know the rules. So you’re playing the whole game blindfolded and being spun around.

Larry 13:00
And you expect from what you were taught in your civics in your education growing up, that the attorney does know the rules. And you expect that the courts and the attorneys on both sides of the equation are going to do their best to protect your rights. And you’re shocked when you find out that isn’t necessarily the case.

Andy 13:18
Right. Well, let’s move along to a question from Michael. And that’s the handwritten one, correct?

Larry 13:28
Well, there’s question two for REM 248. Yeah, that’s the one.

Andy 13:36
So hello and thank you for doing such a great program. I’m hoping you might be able to help me, as well as a few others in prison. Here in the state of Nevada, the courts add a special sentence of lifetime supervision to what seems to be most PFR type charges. None of us are quite clear on what lifetime supervision is or what will be required of us. We keep getting directed to Nevada, revised statute NRS 176A. 410. But it just lists all the probation requirements and NRS 176.400 states, that lifetime supervision commences after any period of probation, or any term of imprisonment and any period of release on parole. It also talks about petitioning to be released from it after 10 years, but not what it is, as far as we can tell. It’s not registry, not probation. And it’s not parole, in which all the NRSs we’ve read made clear when explaining rules and stipulations. Are you able to explain what the special sentence of lifetime supervision is in Nevada and what the details are. Thank you for your help. Mike. So up on the screen, if you’re watching on the YouTubes, I have the document posted, and Larry is going to describe all of the things

Larry 14:58
I wouldn’t go quite that far. What I’m going to do is tell you that as a general proposition, community supervision for life, lifetime supervision, various descriptions they have for these supervision schemes that kick in after your regular post-prison supervision, they’re handled very much like the supervision that you’ve discharged from. This is so bizarre, but you’ve got five years of parole, for example. And then when you complete that, then you’ve got CSL as it’s known in New Jersey, Community Supervision for Life. But the conditions don’t change much. And as best I can tell, that’s the case in the state of Nevada as well. So I found this document that I think will be helpful. And I’m going to actually send it to the person who wrote this. And it’s called PFR Conditions of Supervision. And it has quite a few bullets. And we probably don’t know if we want to read every single one of them, but our readers are going to read the ones that are most significant in terms of what you need to be on guard for because I will just about assure you that these conditions are going to be in your lifetime supervision, after you complete your regular supervision. That’s what I can almost guarantee you from what research I’ve done. So pick some of these bullets and tell him what people are going to be looking at in that state.

Andy 16:32
I’m going to read quickly, Larry. I can get through these, but I will read quickly. Okay?

Larry 16:40
All right let’s see what you can do.

Andy 16:42
Alright. Submit to a search and seizure of his person, residence or vehicle or any property under his control–surrender your fourth amendment is where that one is going–anytime of the day or night without warrant by any parole or probation officer or any police of a peace officer, excuse me any peace officer for the purpose of determining whether the defendant has violated any conditions of probation or supervision of sentence or committed any crime. Next, reside at a location only if it has been approved by the parole and probation officer assigned to the defendant, and keep the parole and probation officer informed of his current address. Accept a position of employment or a position as a volunteer only if it has been approved by the parole or probation officer assigned to the defendant and keep the parole and probation officer informed of the location of his position of employment or position as a volunteer. Abide by any curfew imposed by the parole probation officer assigned to the defendant. Participate in and complete a program professional counseling approved by the Division.

Larry 17:40
Stop. Stop. Now, let me just ask you this. This seems so bizarre. So let’s say hypothetically, you had five years of supervision, and you completed a program of counseling. I know in my state, they would actually keep your counseling forever and ever, because it generates money for the treatment provider. But does this mean that conceivably, that you could be in counseling and treatment for another 10 years out of your pocket? Because that’s what it says you can petition for removal of minutes after 10 years stop? That’s sad.

Andy 18:10
Isn’t that vague. It just says participate in and complete a program. So the program could be 10 years in length, or the program could be three months in length? But I’m sure it’s not. Then moving along–submit to periodic tests as requested by the parole and probation officer assigned to the defendant to determine whether the defendant is using a controlled substance [whispers] don’t do drugs. Submit to periodic–I love this one, this is my favorite–submit to periodic polygraph examinations, as requested by the parole and probation officer assigned to the defendant. Abstain from consuming, possessing, or having under his control any alcohol. Why is that listed? Why wouldn’t the alcohol one be listed with the substance abuse, Larry?

Larry 18:56
I don’t know. But you know, that bothers me because that’s a legal product. But yet, coming under supervision, you can’t use it.

Andy 19:04
All right, not have contact or communicate with a victim of the sexual offense or witness who testified against the defendant or solicit another person to engage in such contact or communicate a communication on behalf of the defendant, unless approved by the parole and probation officer assigned to the defendant and a written agreement is entered into and signed in the manner set forth by subsection two. Don’t use aliases or fictitious names. Do not obtain a post office box unless the defendant receives permission from the parole probation officer assigned to the defendant. Do not have contact with a person less than the age of 17 in a secluded environment, unless another adult who has never been convicted of a PFR type offense is present, and permission has been obtained by the handlers assigned to the defendant in advance of such contact. Not be in or near a playground, park, school grounds, or a motion picture theater. Hold on, man. We can’t go to the movies, can’t go to the pictures, man? And who calls it that motion picture theater? Listen, it’s all digital. Now there’s no film running through the thingamajigger anymore. You remember that?

Larry 20:15
I do. Indeed those were invented when I was a child.

Andy 20:20
You were one of the guys that had the hand cranked, turning the pitch. [laughter] Alright, so don’t go to the movie theater or a business that primarily has children as customers or conducts events that primarily children attend unless approved by your handlers. Comply with any protocol concerning the use of prescription medication prescribed by a treating physician, including without limitation any protocol concerning use of psychotropic medication. Do not possess any adult material that is deemed inappropriate by the parole or probation officer, blahblahblah, your handlers. Do not patronize a business which offers adult material in the form of entertainment, and which is deemed inappropriate by your handlers. Do not possess any electronic device capable of accessing the internet, and not access the internet through any such device or any other means unless possession of such a device or such access as approved by your handlers. Do you want to stop there and rail on that one for a second?

Larry 21:20
Yeah, that one’s very problematic, because it’s a necessary thing in the modern society that we live in.

Andy 21:26
And the last one is if the defendant expects to be or becomes enrolled as a student at an institution of higher education or changes the debate date of commencement or termination of his enrollment at an institution of higher education, advise your handlers, as used in this paragraph institutions of higher education as a meaning ascribed in another publication. But probably trade school, college, something like that. There you go.

Larry 21:52
Those, those are very similar to what we would have here. They’re not as detailed as what we would have here. We’ve got a much longer behavioral contract here. But to Mike, and all those out there that are listening, you’re gonna have conditions similar to these regardless whether you’re on federal supervised release, or whether you’re on state-imposed probation, unless you’re in the state of Maryland, which is pure as wind-driven snow, or unless you’re in a particular county in Georgia, which we will leave nameless. But otherwise, these are very common types of things that you’re going to encounter. And I think you’re going to have them on your lifetime supervision as well.

Andy 22:33
I could say, you know, not word for word, but they were very similar to the 23, or whatever that I had in Georgia.

Larry 22:39
Yes, that’s what I’m saying. We were trying to broaden the audience’s knowledge. We’ve got people who’ve not been under supervision, family members and stuff, and they’re yearning for this information. And I do apologize for how long it went. But the people who have not seen these that are listening, I’m trying to get ready for helping their loved one when they come out. Hopefully, this helped them to understand the types of things that they’re going to have to be aware of from the supervising authorities, and how they can help their loved one be successful.

Andy 23:10
I’ve just a question that’s coming across in chat–are these lifetime? So is Nevada one of those, like you’re on probation, parole for ever. During that whole time you have these?

Larry 23:22
Apparently, there is a group of offenses that after their standard supervision, if you have those offenses, you go into a period of lifetime supervision. And it’s that way in Nevada and some other states, where you can petition to be off in 10 years, according to the writer. I didn’t do that diligent research to see what the petition process is like. But the essence of the question is, yes, you’re going to have almost identical conditions, I would think, regardless of what they named the supervision, if it’s a sexual related offense.

Andy 23:55
I would agree. I mean, like most of those were in Georgia, except for the Georgia one that says, I shall never drive alone, like seriously. How am I supposed to do that? Okay. Then moving along to some articles, and then we’ll move over to some more kind of feature stuff.

Larry 24:11
Sounds good. You’ve got quite a few articles in here. You must have worked all afternoon writing this stuff up.

Andy 24:16
I did definitely work all afternoon. This first one that you wanted to talk about comes from the NPR place. And you people put this article in that pertains to sexual assault in the military. And the headline is “House passes defense bill that includes proposal to combat sexual assault in the military.” And I note that the bill cleared the house on a bipartisan 352 to 80 votes. That doesn’t really leave a lot of room for anybody that said no, I mean, that’s a lot of folks.

Larry 24:45
Yes, because keep in mind, this is the National Defense Authorization Act. And so this is something that’s traditionally been very bipartisan. So yes, it passed. You’re correct. And since it pays for the entirety Department of Defense and the bill nearly passes each year with huge bipartisan support. In fact, you remember back what happened in 2020 when President Trump vetoed the National Defense Authorization Act? You remember that?

Andy 25:12
I do recall that I believe yes. He was promptly overwritten, as you predicted in a previous episode. What are the nuances of this, and explain how it impacts we people–the PFRs?

Larry 25:27
Well, the effort was led by a New York Senator to get this provision, and this is the subject of this article. “The effort, led by New York Democratic Sen. Kirsten Gillibrand for nearly the last decade to force such cases and other serious crimes such as murder and domestic violence out of the chain of command and under the purview of trained prosecutors. They assert that sexual assault cases in the military have been plagued with concerns from victims who fear coming forward to see prosecutions led by their own commander. Overall, a very low share of such cases goes to trial or see conviction . So that’s the problem she’s trying to fix.

Andy 26:27
According to Senator Gillibrand, this is the answer. “This is a historic milestone in our efforts to reform and professionalize the military justice system.” She continued, “and while it will take time to see the results of these changes, it is still important for us to celebrate this victory and continue our fight.” I thought you people have claimed that the Democratic Party is more on our side, can you admit that this is not a positive step for we the people?

Larry 27:00
I cannot say that on this particular legislation because I’ve not read it in its entirety. It’s more than 4000 pages long. And it will be in the show notes, hopefully, for those who doubt me, but yes, I have not read it. So I’m really not able to say

Andy 27:30
You said 4000?

Larry 27:33
Yes, I said 4000 pages. The Department of Finance is a very large operation. And the legislation that keeps it running is super complex. This is one of the funny things when I hear a lawmakers claim that they don’t vote on a bill that they haven’t read. That’s BS. Every lawmaker votes on bills that they have not read. It’s not possible to fully read all the massive proposals that they consider.

Andy 27:45
Don’t they have a bunch of aides or pages, whatever the term would be, and they all read–like maybe she had 10–and they read 400 pages each, and then they summarize back to the individual that would be voting.

Larry 27:57
Yes, that is what they do. But you get criticized for that by people who have no idea what goes on in legislative chambers. We had a representative here a few years ago that got chastised for not reading something because he admitted on a TV interview that he had not read it. And he got chastised. He said my staff read it. And people said–we pay you $170,000 a year to do that? Well, it’s just not feasible to do that. If you’re going to read a 4000 page, you’ll tell me how long that would take with average reading speed.

Andy 28:31
It would take me about 4000 days. “A senior democratic aide touted the new changes in the plan, saying it strengthened the fight against sexual harassment in the military by requiring independently trained investigators to probe such concerns and place it under the jurisdiction of a so-called Office of Special Trial Council. Outgoing California Democratic Rep. Jackie Speier led the fight focused on addressing sexual harassment since the murder of Army Spc. Vanessa Guillén, who faced such concerns while she was based in Fort Hood, Texas.” What is wrong with this?
Larry 29:09
So? For those out there with a Spanish surname, which would be pronounced Gui-yen. But who’s keeping score? I don’t know yet. I just have my concerns because of what we were told by Ashley, who was with us a few weeks ago. And she stated that their economic incentives for those to make allegations. And if that is the case, we cannot be sure of how this will play out when it’s fully implemented.

Andy 29:43
It’s now touted as “A system of justice that is worthy of their sacrifice.” That article nots that for years, Gillibrand’s legislation was met with opposition from the Defense Department, some Republicans and even Democrats. Last year, she saw a major breakthrough, partnering with Iowa Republican Sen. Joni Ernst, a combat veteran to pick enough bipartisan support to approve the plan in the Senate.” Does this mean everyone is on board now?

Larry 30:11
It does not. “Senator Gillibrand and Rhode Island Democratic Senator Jack Reed, who happens to chair the Senate Armed Service Committee openly sparred over several Senate floor sessions last year about this proposal.” So according to the article, no, it doesn’t mean that at all. I’ve said consistently throughout this podcast that the Democrats are not right on some of our issues. This would be one where they’re not right. But try to understand the reason why they take the position they do. They typically take a position on stuff like this with emotion. They have bought into the thing about justice shouldn’t have an expiration date. So they’re not on our side on statute limitations where they should be. And they have drank the Kool Aid about all this massive amount of sexual misconduct in the military. And women represent a huge democratic voting bloc, a huge democratic voting bloc. The Democratic Party has lost the white male vote a long time ago. And the Democratic Party for political reasons, has to be on the side of protecting women who are serving the nation They just have to be. And again, I don’t make these rules. I’m just simply telling you the reality of the political pressure they’re under. So even if they have, like Senator Reed from Rhode Island, even if they have reservations, it’s difficult politically to express those reservations because you’re alienating one of the largest, if not the largest voting bloc of the Democratic Party. If you say, well, we don’t care.

Andy 31:49
Now, “under the Office of Special Trial Counsel, Gillibrand said it marks a sea change that could help better protect servicemembers. She went on to say, ‘We now have a system of justice that is independent, that is transparent and accountable, that will hopefully reduce or be free of bias.’” Do you think POTUS, President Biden will sign this?

Larry 32:10
Of course he will. And if he didn’t, he would probably be overridden. Just as Trump was back in 2020. The White House has expressed some concerns that I noticed throughout the article. It wasn’t about that this particular provision, but there were provisions of concern. But he’ll have no choice but to sign this. And he would not take the loss of political capital to veto a National Defense Authorization Act. I mean, he may be having signs of senility. But he has not forgotten how promptly Trump was overridden when he vetoed the National Defense Authorization Act. So that’s not going to happen, not going to happen.

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Andy 33:31
Another article that you wanted to cover was from The Appeal. “Georgia sex offender registry traps people in debt and homelessness.” And I think you want to dig in deeper than we typically do with articles. So go for it.

Larry 33:54
I do want to dig a little bit deeper and the person in the article–I didn’t see the name, so we’re going to talk about the person and that’s what we’re talking about. The focus of the article says “I was arrested in 2010 while engaging in sex work to survive and later forced to register as a sex offender. Since then, social stigma, footage laws, and crushing monthly court debts have made it difficult to get back on my own two feet and succeed after prison.” I’d like to show some of the barriers people face in Georgia. That’s the purpose. But you know, we both have some connection to Georgia, and we’re familiar with how things operate in the Peach State. So this article presented itself.

Andy 34:41
The individual stated “In 2010, at age 20, after six years of engaging in sex work to survive, I was arrested and charged with pimping, pandering, and exploiting a minor who was over 16 years old. In 2012, I was convicted and sentenced to 30 years, with 14 to be served in custody, and forced to register…” “As my public defender so appropriately described it, I was depicted by the media as a sort of Guido the Killer Pimp and accused—I maintain falsely—of terrible acts befitting only a terrible person.”

Larry 35:15
So well, he might not be a terrible person at all. They may have just been in survival mode.

Andy 35:23
According to the article, “it’s well known that police target sex workers, criminalizing their means of survival and contributing to sex offense related convictions and statistics and political in particular, police target BIPOC and LGBTQ sex workers in particular.

Larry 35:40
I have no idea of what that is. I’m hoping someone in chat will enlighten us.

Andy 35:43
Yes. Please tell me what BIPOC is especially the many disenfranchised ostracize and homeless teens and young people engaged in a trade for survival. Why do you think they do that?

Larry 35:56
Why they do the arrests and investigations because it sells well in public opinion. You can go out as a law enforcement apparatus, and you can say that you’re running these sting operations and you’re catching these pimps that are prostituting our youth. Nothing is more heart tugging, that I can think of. So these sorts of arrest and patterns by law enforcement cater to public’s hunger for our spectacle, and it pads conviction rates. And while furthering the general rhetoric of perversion and predation. That’s what the Appeal said. But clearly, it sells. And again, folks, if you don’t want this stuff to sell politically, you have to register. Our listeners, you out there, have to register with people and tell them that you find this objectionable. When you see them on TV, making comments or grandstanding, you have to send an email. You have to call. You have to tell them I have find your behavior appalling. That’s when it will stop.

Andy 37:11
Oh, by the way, BIPOC is black, indigenous and people of color. So there’s that? Ok. And he stated, “I didn’t know at that time that I was fulfilling a narrative around crime and sex offenses. Nor did I know about the vicious re-incarceration cycle of the registry and potentially lifelong monetary peonage to the criminal (in)justice system. But I do unfortunately know one thing now: Sex offender registries are debt traps that cause mass homelessness and mass incarceration.” Dig into that one.

Larry 37:46
Well, in Georgia first-time technical violation by someone on the registry is a felony punishable by up to 30 years in prison. Now, make sure you heard that–30 years. And in the Land of Enchantment of New Mexico, a registry violation is a fourth-degree felony punishable by up to a maximum of 18 months of incarceration. And it’s not a serious violent offense, which means in most instances, you’re going to get day for day. So you’re going to do a whopping nine months if they max you out. Under the state’s recidivism statute, in addition to that 30-year potential a second violation triggers a provision where there’s no parole eligibility, meaning that you will have to do that 30 day for day in Georgia. It is so difficult to secure housing for people with PFR convictions. And the outskirts of at least four Georgia cities–I’m assuming it’s the major cities–they’re just loaded with encampments for people that can’t find housing. I’m guessing that would be Atlanta and Savannah and maybe Columbus. You know–the places with population centers. Maybe Macon. But there are places where there’s just nowhere to go.

Andy 39:04
Yeah, right. The article states that prisoners within 15 months of their parole or maximum release date can apply for placement in a TC, where they may have their own clothes and leave the facility each day for work release. He stated that “my application was denied; I was told I couldn’t be placed on work release while still receiving gender-affirming treatment I’d won through litigation.” That’s not funny, Larry.

Larry 39:31
It’s, definitely not funny. “As a citizen on the registry, I’ll be paying for my ankle monitor, mandatory treatment classes, monthly urinalysis tests, biannual polygraph tests, and of course my parole officer’s valuable time. These charges will accumulate to at least $400 to $800 per month. If I cannot keep up with these fees and with rent simultaneously, it doesn’t matter which bills I choose to pay.” What he’s saying is that if I can’t pay them all, I’m going to fail.

Andy 40:08
So I frequently reference this–go back to, I believe it’s June, maybe 2016. There was an episode of Freakonomics–I can leave a link in the show notes to it–but it is why do we make sex offenders pay, pay, pay, pay. That incredibly good episode describes that we’re going to put approximately a $10,000 debt on someone coming out of prison with a PFR-type offense. Anyway, the article notes, “that it’s terribly easy to land on the PFR registry in this country. The U.S. Department of Justice reports that children are accused of committing roughly a quarter of all known sexual offenses and more than one-third of all sexual offenses against kids. At this time, there are more than 200,000 people on the registry for conduct that occurred when they were a minor.” Does the average person realize how easy it is to find yourself on the PFR list?

Larry 41:00
No, they do not because of the terminology that you use. Law enforcement and media use words like sexually violent predators, rapists, child molesters, so the public doesn’t realize how easy it. nor do they realize how difficult it is for a registrant to work in most states. PFRs in Georgia are not able to work within 1,000 feet of public parks, schools, childcare facilities, or any other places where minors are known to congregate. Law enforcement will sometimes even prohibit registered persons from working in restaurants. Multiple studies have linked sex-offender registries to increased rates of homelessness. But we still insist on doing this unconstitutional and horrible public policy.

Andy 41:46
Did I ever tell you about getting denied housing because it was like since what 1000-foot thingamajigger. And the place I was trying to move into was like 996 or 990, something like that. And they said no. And the in the place that was a park it was a cul-de-sac. And there was a park bench. And there was a sign under that said something. But there was just a concrete bench in this cul-de-sac that was the park, and I couldn’t have done that house because it was 900 and change feet away.

Larry 42:13
Now that’s funny.

Andy 42:15
It’s ridiculous, man. It’s ridiculous. And the house was across the street. So it was like 200 feet from the police station.

Larry 42:23
So yeah, I hear that all the time. Similar stories.

Andy 42:27
I’m sure you do. Moving along then to an article from USA Today. You put this in here about pretrial detention. It’s titled “Federal magistrates, prosecutors misunderstand bail law, jailing people who should go free.” This is from USA Today. So tell us about this one.

Larry 42:43
Well, according to the article, “A Reagan-era law, passed by Congress nearly four decades ago to change the federal bail system in order to address concerns over rising crime committed by arrestees released pending trial, has been wildly misunderstood and misapplied by the federal court system’s magistrate judges, prosecutors, public defenders and probation officers, a new two-year national study finds.”

Andy 43:14
The article continues: “The unprecedented look at federal pretrial detention conducted by the University of Chicago Law School’s Federal Criminal Justice Clinic paints a portrait of a judicial system that has neglected the rights of especially poor arrestees and people of color. Such systemic problems are largely the result of what judges and advocates told USA TODAY is a poorly written, war-on-drugs-era statute known as the Bail Reform Act of 1984, an over reliance on prosecutorial discretion, and risk-averse magistrate judges and federal defenders.” What changed after the bail reform act was implemented?

Larry 43:49
Well, according to the report, here’s what changed. “Less than 24% of arrestees were jailed pretrial. By 2019, nearly 75% of them were. As of June 30, nearly 118,000 people were federally jailed pretrial, according to federal courts data. At the same time, the amount of time presumably innocent people spent locked up awaiting trial has also increased nearly sevenfold, the report found, from an average of less than two months in jail in 1985 to nearly a year now.” And they’re presumed innocent, and we’re detaining three quarters of the people accused of crimes folks. This was a policy that was passed in the 80s. Congress had to pass it. Reagan couldn’t have signed it if Congress hadn’t passed it. But there was a lot of public pressure on Congress to do this because of the supposedly revolving door of catch and release. And the same thing that was said then is being said with the states now that have implemented bail reform where they are letting more people out pending trial. But anyway, go ahead.

Andy 45:08
I want to make sure that we are talking about people that are innocent until proven guilty, correct.

Larry 45:13
That is the theory of our Constitution. And I’m shocked. I’m shocked when people who are reluctant to say that. When I hear an interview and when an alleged victim says that person should be in jail? On what basis do you say that? Well, they, they did so and so to my husband? Well, they are accused of doing that. They’re presumed innocent

Andy 45:39
And that why you would then get held and then go before some magistrate judges. You would go before one of them to be afforded bond, and unless you are like Jack the Ripper, shouldn’t you go home, possibly for some kind of monitoring of some sort?

Larry 45:57
That is what our system is supposed to be built upon. The presumption of innocence until you’ve either pled guilty or been convicted. Innocent people are not supposed to be held in custody.

Andy 46:10
According to the report, “Federal magistrate judges may over-detain out of fear that someone they let go will commit a new crime or worry that they may lose their jobs since they serve terms at the discretion of the district court.” I thought that federal judges are appointed for life.

Larry 46:27
Federal judges are the ones that are a district judge and above, but magistrate judges are not. The magistrate judges are appointed by the District Court. And they must reapply regularly. I think they serve six-year terms, but I’m not absolutely sure. But they must reapply.

Andy 46:43
The article continues: “The Bail Reform Act includes a narrow list of offenses that make an arrestee eligible for detention and a second hearing. Those include more serious violent crimes; crimes involving violence, guns, minor victims or terrorism; most drug offenses; offenses carrying a maximum penalty of life imprisonment or death; and certain cases of recidivism. Prosecutors can also argue there is “serious risk” an arrestee will flee or obstruct justice. If none of these offenses are involved nor conditions met, then an arrestee should be released at the initial appearance.” And then Larry, you being the knower of all things judicial system, why are they not released?

Larry 47:19
I wish I could explain it. My guess is similar to the issue we just talked about with probable cause hearings. The people who work in the system do not understand what they’re supposed to be doing. That’s one possibility. But when you look what the article said when US Magistrate Judge Jonathan Hawley first got to the bench in the Central District of Illinois over eight years ago, he stated, “no one appearing in front of me, from the defense lawyers to prosecutors, to probation officers understand how the Bail Reform Act applied. And it was a shock to me.” Now, you have to admit that’s funny.

Andy 47:53
I am not going to admit that funny. Not at all. Do you want to argue about what’s funny now?

Larry 47:59
Well, if you’ve got a magistrate judge saying that of all the various key players from prosecutors to probation, federal probation, a significant player, that these people don’t understand the Bail Reform Act, how else would you describe it if it’s not funny?

Andy 48:16
Not funny at all. “Juval O. Scott, the federal public defender for the Western District of Virginia, said when she took over the office in 2019, she instituted a policy that lawyers in the office had to challenge detention unless there was a reason not to. Since then, the district’s release rate has gone up almost 20%. Scott said, ‘There were a lot of very seasoned defense attorneys that had no clue what the statute said,’ Scott said. ‘They walked into court, and they would agree that their clients could be detained even when the statute did not offer a basis for their detention. So we can’t blame judges for detaining people if the defense bar doesn’t step up and ask for their release and tell the court why.’” That is very sad. We were expecting that these people go to colleges and whatnot that teach them these things. Then they go to an institution, a workplace where they would then like, here’s how we do this. And this is what we are afforded, constitutionally, as the people that are being represented by, well, these people.

Larry 49:18
It’s indeed sad, because Congress, I think, intended the presumption of detention, to apply narrowly to the worst of the worst. And that’s what the article says. But under the statute, prosecutors are supposed to persuade judges that detention is necessary. And judges are supposed to weigh the presumption alongside an individual assessment of an arrestee. The report says all that. I don’t understand. I really don’t.

Andy 49:43
But the real world comes down to, god what was the judge’s name in Persky? Then it comes down to, so you go into court, you’re standing there, and you’ve got your side defending you that saying like you’re the best person ever, and then the prosecutor is painting picture that you are the worst person ever. And then the judge is going to end up on the news that they let this terrible person accused of these things go home.

Larry 50:09
That is a fear, and particularly for the magistrate judges who do not have lifetime appointments.

Andy 50:15
The report notes, it’s every judge’s nightmare that they release someone who then goes out and does some violent act, what can be done, we would have to stop watching the ambulance chaser kind of news reports is what we would have to do.

Larry 50:26
Well, Congress could also pass amendments to the Bail Reform Act and make it abundantly clear that the presumption is that defendants should be released pending trial. Unfortunately, that’s not likely to happen. Because it’s political. The Right has been demonizing the states that have been trying to do that very thing, to make it easier for defenders to be released pretrial. They say it’s turning loose a tidal wave of crime on the innocent public, and you just cannot withstand that type of an assault. I mean, you just can’t.

Andy 50:57
Can you remind me of some of the criticism that went on with the pretrial detention for those accused in the January 6, Capitol riot?

Larry 51:05
Well, there were some on the right who were very indignant that these people were being detained. And they are justified in their righteous indignation. But what disturbs me is that for 40 years, there was no indignation. I mean, we on the progressive side, we’ve been complaining about this, those of us in the trenches, practicing law, we’ve been complaining about the presumption of innocence being eroded, and people being held pretrial, we’ve been sounding the alarm bells to no avail. And then when something like January 6 happens, and you have your people being held pretrial, then suddenly it’s a problem. Okay, fine, you’ve now realized it’s a problem. Let’s start working on a solution to stop the demonization. And let’s start doing what you say you want done. And changing the Bail Reform Act and making it abundantly clear that people should be released pending trial.

Andy 52:05
An individual in chat, who is listening to us live for the first time ever, said federal supervised release was only supposed to be for the worst of the worst. It’s how they sold the 85% of sentencing having to be served and no parole. I think that makes sense as a comment.

Larry 52:25
Well, the abolition of parole–the old system we had in the federal system–there was after a percentage, I’m not remembering if it was 30%. But there was a percentage of the sentences that were served and that you were eligible to be released. That was abolished, but the Sentencing Reform Act didn’t have to do with the Bail Reform Act, but the Sentencing Reform Act abolished federal parole. And it put in these guidelines because there was great consternation of what was referred to as a disparity in sentencing across the land. I mean, you had people in the more conservative side, were saying, why is it that down here in Alabama, when someone robbed the bank down here, we give them 12 years in federal penitentiary? And how come out there in San Francisco and that pond of sin out there, how come they get on probation out there for the same crime. And part of what drove that Sentencing Reform Act was to make sure that everybody goes to prison. So now we have someone like Martha Stewart, who makes a false statement about a stock trade that she would have made more money on had she not traded. But she’s a convicted felon because of making a false statement. And she had to serve five months in the federal penitentiary.

Andy 53:44
Right. And then did she do house arrest too?

Larry 53:48
Yes, yes, she did.

Andy 53:51
Very good. Um, anything else there before we dive into the little shindig that I wrote up?

Larry 53:57
No, let’s do it. Because we’re running short on time.

Andy 54:00
We are. I hope we can get through this. So I saw over on a subreddit for sex offender support a post by someone who was convicted of CP type charges and questioned the prevalence of illegal content. And it still makes me wonder. He asked why hasn’t the government started a campaign to educate people on the hazards of possessing CP? Do you want to say anything about it? Do you think that it’s the government’s job at all to tell you the rules and dangers of having these things? I mean, I only know that M.A.D. was the only thing similar, but that was driven by that organization. I don’t see that our government–local, state, federal–does anything to inform us of what we should or shouldn’t be doing.

Larry 54:46
I’m in agreement with you. I’m not sure. I mean, we do have public service type of announcements, but I’m not sure that we have those except for maybe with drunk driving. And who pays for those announcements? I’m not sure, but if you don’t know that looking at naked children is probably not ideal, then you’ve got more problems. Now what I’m told, and I’ve not experienced this myself, I’m told that sometimes you don’t know what you get. You click on something, and it opens totally different than what you expected. But I’m over my head on this. I don’t know this stuff. But that’s what I’m told it. Actually, people are not looking for it. But they click unknowingly on this stuff, and then they’ve possessed it.

Andy 55:25
Yes, then you would then be in possession of it. So first, I’m getting some feedback on this, what identifies as CP? How is it identified? Is it like SCOTUS said at some point in time, I know it when I see it when they were referring to porn, in general. Is CP merely nudity? At some point in time, it crosses a line. And it says, yep, that’s what that is. How would you know? Is it just a person in skimpy clothing? So how would you even identify what is versus what isn’t? I think that would be one area where like, I don’t know what you would call it.

Larry 56:06
Well, the more egregious is very easy, because it’s age based, you got anyone under 18. for federal purposes, this is defined as a minor. So images of nudity, exposing, exposing the breast or the genital area. But then I think it goes beyond that, you know, there’s these sexually suggestive poses that may qualify as well. I don’t do federal work, so I don’t know all the complications within the federal system. But it’s age based, for sure. And then there becomes experts brought into play when you don’t know the name of the person, you can’t identify the person. So therefore you don’t know the age. So you have these experts come in and testify that that’s the age of the body development of the person that’s depicted in the images.

Andy 56:54
And wouldn’t that be super fuzzy. Some develop very early, and some develop very late?

Larry 57:00
That is correct. You could very well have that situation where someone could be fully developed, and they could be 16. And they could look older. It’s very difficult because part of the federal law prevents the images from being turned over to the defense attorney. In the old days, we would just get a copy of all that stuff. And we would look at it. But I think after the Adam Walsh Act passed in 2006, now you have to view it under supervision. And it’s highly regulated because you’re in possession of the porn yourself. So they don’t give us a thumb drive with a discovery. But those images, we have to go down and take a look.

Andy 57:38
My main focus in this segment is you are very skilled with law policy and that whole apparatus. That’s really the area that I’m trying to focus on with this conversation, not about how is it identified all that stuff? So is there any incentive on it? Is there any incentive by the government to try and curtail this activity? Do you think?

Larry 58:06
Well, depends on what, like Bill Clinton said what the meaning of the word is. Okay, it depends on what you mean by incentive. There is an incentive to arrest people and prosecute people because that keeps the apparatus of law enforcement working and justifies their existence. Is there an incentive to reduce the incidence of it so that you don’t need their law enforcement apparatus? I’m not so sure about that. I have never been convinced that the law enforcement apparatus wants to diminish its need. I think it’s constantly trying to increase the justification for its need.

Andy 58:44
So I was reading through the comments of the subreddit, and so I’ve summarized some of them. One tells us that you it’s a conspiracy, just follow the money. Nothing is done about it as a way to constantly Feed the Beast through polygraphs, parole, probation payments, treatment providers, etc. Then throw in bonuses for extra overtime during events like Halloween for all the compliance checks. The question is then is it simply a cash cow for the various parties and that’s prison, DEA, law enforcement, Kabuki machine operators, and the like?

Larry 59:17
What kind of machine operators?

Andy 59:19
The Kabuki machine operators, the ones who hook you up to the whole little machine and watch the little needles move back and forth.

Larry 59:26
Can you spell Kabuki, so we understand how it’s spelled?

Andy 59: 29
K-A-B-U-K-I.

Larry 59:32
All right.

Andy 59:34
Do you think that it’s just a money machine for them?

Larry 59:40
I have a hard time believing these things come about that way, but they develop and evolve that way. It’d be kind of like the Department of Homeland Security. For example, the Department of Homeland Security was a reaction to 911 and the fact that our various agencies could not coordinate well when asked to respond quickly. But the Department of Homeland Security has evolved to be one of the big participants in the porn prosecutions. Anytime there’s a federal prosecution, you can almost guarantee that the Department of Homeland Security has been involved in. So I think once these things evolve, and grow, kind of like the SMART Office with registering ratio, registration, tracking and monitoring that federal office that does that mean to the states, it needs to survive. It’s not looking to eliminate its existence. So yes, I think that Kabuki machine operators, the prosecutors, defense attorneys, all these people depend on a high level of of cases rolling through there. If all of a sudden the federal caseload dropped by 60%, what would happen to all these people?

Andy 1:00:52
By God, the Kabuki machine operators would have to go legitimize their existence and do something real.

Larry 1:00:57
But what would probation officers, and what would pretrial service workers do? Well, with the people that sell technology, to the electronic monitoring? What would all these people do if federal apprehension and enforcement dropped by 50%? If we, you know, the Conservatives talk about downsize government. If we downsized the apparatus by 50%, and reduced its capacity by 50%, to prosecute and incarcerate, what would happen to all these people who are working in this system?

Andy 1:01:26
I gotta tell you, just to some degree in a lot of those cases, then they would actually move into close to their operating capacity where many places are operating at 110% and 120% of capacity. So they would almost come down to a normal load.

Larry 1:01:41
So it would result in a lot fewer people being employed over time, and nobody’s sure that–

Andy 1:01:50
But aren’t we interested in the public safety? So this is almost like, well, we’ll let the content stay out there so that we can continue to arrest and be employed instead of thinking about the overall benefit of society, and cutting the head of and killing the beast instead of just chopping it off?

Larry 1:02:09
Well, I’m not qualified to talk about how the content gets out there. You know, people say that it’s the federal government that runs it. I don’t know that. I don’t know that it is true. I don’t know it’s not true.

Andy 1:02:20
Another aspect of this, someone, we’ve meant something we’ve mentioned on the podcast, and I don’t know if we can ever actually verify it. I know that I’ve seen articles and heard people say it, but nothing really that that verifiable, it says that 50% of the sites that are hosting this type of content are in fact run by government agencies. And the question here is of some numbers of the sites are, are, are therefore funded by taxpayer dollars to ensnare those that access the content into the legal system, I guess, incense, in essence, feed the previous question. So I don’t know how we would ever verify it. But if the government our taxpayer dollars, are running the servers that host the content, that I guess it’s not entrapment by Larry’s definitions, but sure seems like it

Larry 1:03:08
not entrapment, because they’re not encouraging the crime, they’re merely providing you the platform for to do something you have a predisposition to do theoretically.

Andy 1:03:17
Right. Do you do you see any sort of parallel like, I mean, there’s not a cocaine store up the street for you to go buy stuff that’s run by the feds? Are there? I guess there might be.

Larry 1:03:31
Yeah, I don’t know that.

Andy 1:03:37
So how about we kind of briefly touched on this? Should there be some kind of public information campaign, as Nancy Reagan did back in the day? Just say, no, likely from peer pressure? Do kids end up drinking and or doing drugs? Should there be some kind of YouTube ads, or wherever to help get the word out about the consequences? And would it even help, though. I can’t imagine that anybody really thinks looking at this content would be above board. For example, consider what you can buy at Walmart. Some items require proof of ID to buy like some medicines, they sell guns and ammo, but they’re in controlled areas. You have to make something of a concerted effort to find the content that you’re not supposed to have. One poster wrote that I think there’s an Allah and analogy to the drug war. And that I don’t think it’s a problem. We’re going to incarcerate our way out. I think it requires a conversation about ending demand. And I think that requires policy and conversations about access to mental health treatment, sexuality, pornography, repair, repression, etc., that he doesn’t think we’re ready to have. What are the steps needed to do something like this? Do you think like some sort of public awareness campaign and so forth, obviously, it would take money and who might fund that sort of thing?

Larry 1:04:48
That was going to be the question. I would pose this wherever the money come from. I mean, we’re more than willing to spend the money to incarcerate people, but spending money for treatment and prevention is a difficult sell because you cannot ever imagine or what the effective rate, what the efficacy rate was of that stuff, we don’t know what crimes would have been committed, because crime rates are not stagnant. So just because the rate didn’t change much, it could have been that was going to escalate by 40%. Without the prevention and intervention and the treatment, we just don’t. It’s difficult to prove. So, therefore, it’s difficult to secure public funding for prevention.

Andy 1:05:24
I have one final thing that I want to bring up as a technological person. You have companies out there like Facebook and Google. So Meta and Alphabet respectively, they can build algorithms to identify suspicious content. And that’s computers looking at the images to try and see and they make determinations. And then they have some report mechanism and processes in place that takes the information off of their sites. And I’m not saying it isn’t there for you to do a Google search to find stuff. I’m just saying it’s really hard. But if they have the mechanisms to do it, why can’t our government do it? And again, another comparison is to the drug war. When you compare the money of the drug cartels have to what the US spends, its paltry by comparison. Like, if that content ended up on a Facebook or Google type property, prosecutors would go hammer them. And so they have an incentive to not have the content there for you to get it. So you have to go through some really covert, subversive channels to pick up anything of volume. So it just seems like it’s possible to be done, but we don’t do anything about it. It’s really all I wanted to then add to the end of that.

Larry 1:06:40
Well, I think Facebook and the big companies are doing something about it. They are putting the brakes on it. They’re turning it over to the authorities.

Andy 1:06:48
Agreed, agreed. And they have the ability to do so. But then it just moves elsewhere from where it’s now. But it’s out of those mainstream kind of channels. It still seems like it would be plausible for the government to do that. But then there’s fourth amendment stuff, like they can’t go search your stuff without a warrant. And it’s very complicated, but it seems doable to some degree.

Larry 1:07:10
So it’s a conversation for another episode about why would you want to have the have the government interfering with this kind of stuff.

Andy 1:07:19
So very good. I don’t have anything else. And we’re a tad over time. Anything that you would like to say before we depart?

Larry 1:07:26
Looking forward to being back next week, one more week before Christmas.

Andy 1:07:32
Absolutely. One more show before Christmas. And then we’ll take off and I guess we’ll be recording somewhere on New Year’s Eve, aren’t we? Well, maybe we’ll record a day earlier like on the 30th or maybe even a day later, one or the other. And so any who all you’ve got to do then is go find the show notes over at registrymatters.co. And that would be fantastic. You can find links to everything there to support the show over on the Patreon kind of place or find the show notes and the transcript over at fypeducation.org. Thank you everybody that hung out in chat. We had a big, huge crowd tonight. And without anything else, sir, I would bid you a great weekend. Take care.

Announcer 1:08:24
You’ve been listening to F.Y.P.

Listen to RM250: Register as Soon as You Can as Soon as You Can Figure out the Rules
https://www.registrymatters.co/podcast/rm250-register-as-soon-as-you-can-as-soon-as-you-can-figure-out-the-rules/

Download the transcript here
https://fypeducation.org/wp-content/uploads/2023/02/RM-250-Final-Print-Copy.pdf

Announcer 00:00

Registry Matters is an independent production. The opinions and ideas here are that of the host, and do not reflect the opinions of any other organization. If you have problems with these thoughts, F.Y.P.

Andy 00:17

Recording live from FYP studios, east and west, transmitting across the internet. This is episode 250 of Registry Matters. Good evening, how are you this fine evening, sir?

Larry 00:29

Doing marvelous. I’m glad to be back with you one more time.

Andy 00:32

Just once? This is the last one?

Larry 00:35

I don’t know. You’ve been trying to get rid of me. Every time you’ve asked me during the session–how much longer I’ve got to stay. So I don’t know.

Andy 00:44

Well, before we do anything, I’m gonna say make sure that you do all the likes and subscribes, and the notification bells, all those other things on YouTube to use that algorithm and whatever to game the system. That’s all I’m trying to do is game the system. You know?

Larry 01:03

I’m familiar with the concept of gaming the system.

Andy 01:08

So give me a rundown of what we have going on tonight.

Larry 01:11

We’re going to revisit an issue we covered, I think on 243 of Registry Matters. We talked about people who were being discharged from military custody. And we’re gonna be talking about their duty to register and how quickly they should register. And what happens if they don’t register. And we’re going to have the same guest back–barring technical issues–that we had back on Episode 243. Then we have a number of articles to talk about. I think we’re going to have a very spectacular episode of Registry Matters.

Andy 01:52

Fan-freakin-tastic. Alright, now this is episode 250. And Larry, I have been swamped for six months. I thought, you know what, I won’t do anything for episode 200. I’ll kick it back to 250. And I still haven’t had any free time to do anything. So a couple people knowing that this was coming, sent a couple things to play for you. So I have two to play for you–one very short and one just delightful. Okay, so without further ado, I’ll play these little clips for you. Okay, you ready?

Larry 02:30

Sure.

Announcer 02:32

Registry Matters and the FYP studios are proud to present their 250th episode. It just goes to prove YOU PEOPLE will listen to anything.

Larry 02:43

No idea who that is. I wouldn’t have a clue.

Andy 02:48

I’m fairly certain you know who that is. That is the individual that does the intro thingamajigger and then also the ending. Anyway, he’s my voiceover guy. And his name is Rick and I adore Rick. Now the other one that I have to play for you comes from an individual you know as Deputy. And he’s just literally a treasure. He’s a hoot. He’s brilliant. He’s a very, very, special individual. I’m quite happy that he is here and helps with any issues that I have with the server or technical things. He helps also run the discord server. But he’s fabulous. And so here’s that.

Deputy 03:25

Hey, you people. Here we are–250 episodes of the Larry show is in the books.

Larry 03:34

This is all confusing to me.

Andy 03:36

It is certainly unusual, Larry.

Deputy 03:38

250. Through the good, through the bad, through everything. We’ve now made it 250 episodes

Andy 03:51

Everyone has to drink now.

Deputy 03:53

It is with great privilege that I now present to you this exclusive, limited-edition gift for being such great You Peoples. Introducing the Handout-on the-Bible-2023-Larry-calendar. Each month comes with quotes direct from Larry such as

Larry 04:14

“You did put your hand on a Bible, and you swore to uphold the law and to enforce the law.”

Deputy 04:19

Along with 12 Full-color exclusive photographs of our favorite legal minds celebrating the seasons. See Larry holding sparklers while dressed in Lady Liberty in July, or the ever-effusive Larry holding a Christmas Bible well dressed as one of the wise men for December. Not available in stores and not available anywhere. It’s the Hand-on-that-Bible 2023 Larry calendar available never but only from FYP Productions. But seriously, I don’t want to take anything away from this monumental occasion of 250 episodes. Seriously. You 250 episodes, which is insane. And congratulations, heartfelt from the bottom of my heart. Like, wow, 250 episodes. Congratulations, Andy. Congratulations, Larry. There are no words. And here’s to another 250 more. You guys are killing it. Thank you, guys, so much for everything you do.

Andy 05:30

Any thoughts?

Larry 05:32

That is really wonderful. I appreciate the effort that must have gone into creating that.

Andy 05:38

It was, but he’s phenomenal. He’s played some stuff–I don’t know if I should say this because this was pretty anonymous. But he ran a radio show, Larry, while he was inside, and did it over the telephone and got recorded and got broadcast. He’s amazing and fantastic. And he does amazing work and has a phenomenal radio voice. So all right, then I guess we should go into this feature event, don’t you think? So we see you people brought back the special guest, who is Ashley, and her spouse is in military custody. And we discussed it on Episode 243, as you already said. And why are we going back to this so soon? It seems like we should have some sort of statutory limit of limitations of the minimum window before we bring a guest back. But this is only seven or eight weeks. And we did take a couple of weeks off during the holidays. Why did we bring her back so soon?

Larry 06:39

Well, because the issue is confusing, and I feel it is at the very least FYP can do is try to help those who have served our country. And they now need information about their future obligations. And especially since the information is really hard for them to obtain, and they’re kind of in a different circumstance from the rest of the PFRs. Being that they get shipped to one facility, particularly mostly one state. And so we’re trying to enlighten them a little bit further with information.

Andy 07:11

So again, our guest is Ashley, and her husband is at the Joint Regional Correctional Facility in Fort Leavenworth. And thank you very much for joining us again, Ashley. We tried to have you on last week even but even still, like as short notice is still in order. So thank you again, for coming back. And I guess we have had sort proxy communications with her husband. And so we have a bunch of questions, and I’ll begin with this. So I’m going to send most of these at Larry. And then Ashley, if you need to chime in, feel free to let me know and I will bring you in. But to clarify some of the questions I was asking you through Ashley, this is what Samuel wrote, ““To clarify some of the questions I was asking you through Ashley, I thought I would write. I have to admit, I am thoroughly confused. As for us here, we do have DOD and Department of the Army regulations stating clearly that one must register ‘within 3 days of release from confinement’ (that is from Army Regulation 27-10).” Larry, can you explain how you can say that a person does not have to register within three days when it says so in the DoD regulations?

Larry 08:25

Well, I’ll start with what Samuel explained, and I’m gonna quote from him. He said this regulation seems to come with no mechanism on enforcement. However, as the majority of the inmates will leave here with no requirement for supervision due to having sentences of less than three years. So how would anyone know whether or not they had registered at all and within the three days. It’s a mystery to me.” Okay, I’m only guessing but my guess is that the Joint Regional Correctional Facility probably provides a list to the state of Kansas since the facility is located there. And they probably provide a list to the US Marshal tracking unit that hunts down missing PFR. So there’s a there’s a unit within the federal marshal’s operation funded by the Sex Offender Management apprehension registration and tracking office, the SMART Office. And my hunch is that the marshals would be looking for all these people who are released because if they get that notice what they would do is calibrate for a future review within a specified number of days after release. They would go back and circle and look and see if that person has registered anywhere. If that person hasn’t registered anywhere, my theory would be that the marshals would begin a nationwide search for the individual and that would not be good when they located you. So that’s what I think happens. But again, these are all my opinions and speculation.

Andy 10:06

And you think that upon exit from that establishment, that fine housing unit that he is living at right now that when he leaves that, it is some sort of do you an automated document push? Do you think they call up and say, Hey, Joey, so and so just left from such and such, and so keep your eye on that they show up in three days.

Larry 10:30

I don’t think they call. We’re in a technological society now where things are done electronically. So I would think what they would be doing would be as a courtesy to Kansas. I’m not sure if Kansas can require it. But even if they cannot require it, as a courtesy to Kansas State, they would notify them by electronic means that that an offender is being discharged from that facility. Very few of them are going to end up registering in Kansas because they didn’t originate there. But in addition to that, since they can be dispersing anywhere in the nation, they would send the same electronic communications to the marshals because the marshals would be the ones who would ultimately be tasked with tracking them down, because the state only tracks under jurisdictional boundaries. That was an impetus for the Adam Walsh Act to begin with. When they passed Awa. The state, once they were satisfied that the person was no longer there, they had no economic interest to do anything else. If you’ve left the state of Iowa, and I was fairly satisfied that you’ve left there, why on earth would they want to hunt you down and bring you back? They would want you doing whatever you’re doing illegally in another state. So that’s why as a component of the Adam Walsh Act, they created this Fugitive Apprehension team. So once there’s a jurisdictional boundary has been called crossed by a person who has a duty to register, the marshals have that necessary jurisdiction, and they would track him down. That’s my opinion. It’d be nice if we could confirm this, but I think that’s probably what they do.

Andy 12:07

Samuel also then stated, “States seem to vacillate between initial registration after confinement needing to occur within three days of entering the state or three days of release from confinement. Georgia and North Carolina, for example, state clearly that one must registry within three days of release from confinement. Georgia even clarifies that this requirement pertains to those punished under the Uniform Code of Military Justice (OCGA 42-1-12(e)(5). My understanding of your conversation with Ashley is that these statutes only pertain to people incarcerated within that state. If this were the case, though, why would Georgia specify that, even for residents, the three days pertains to either release or entry into the state (suggesting that it does not pertain to only those incarcerated within the state?” Holy moly, this starts looping around and getting confusing.

Larry 13:02

I never intended to convey that the registration requirements only apply to those incarcerated and the state. My intent was going to be that that a state beyond where a PFR is incarcerated does not have the requisite jurisdictional hook to require anything of the PFR until the state gains jurisdiction. Generally, jurisdiction attaches once the person does one or more of the items on the list that require him to register. And as a general rule, these things are becoming employed, attending school, being physically present for a certain number of days, or establishing a residence of the state. If the person is released in another state jurisdiction does not commence by Georgia, if that person is released in Iowa, until one of more of those things occur. Now, I didn’t forget what he said about what the code of Georgia says about even those in military custody. What I’m guessing, and I didn’t do the research prior to this program, but I’m guessing since Georgia has a large number of military installations, that it would seem that there’s likely a brig of some type. I know they have brigs all over United States. They don’t do long term incarceration in Georgia, but I am confident that there’s a military installation possibly in Georgia that has a brig. You got Robins Air Force Base, you got Dobbins Air Reserve Base, I could go on and on. We got all these military installations at Georgia. So it could be that someone in the drafting process of the Georgia General Assembly said Well, what about these people and we got our jail houses covered, but what about them that are released from whatever that facility might be? It houses military confiners. But other than that, it may have just been an add on, but clearly, just because it says it doesn’t make it something that they can enforce because they have no jurisdiction to require a facility in other state to provide them any notice whatsoever. Now the military, again, as a courtesy might be providing it to the state of Georgia. We don’t know all these things. But that being said, even if he if he is, if Georgia is provided a list of people that he’s been released, if he didn’t do anything that would trigger their jurisdiction, there would be a prosecution would die on the vine, even if they tried to initiate one because there’s just no basis to require him to do anything until he attaches himself to Georgia.

Andy 15:36

So Samuel also said, “I do understand that there are jurisdictional issues with Federal, State, local, military, etc. etc., but I do not understand another way to read these statutes or why some states would specify release from confinement over entry into the state. Accepting the later raises confusing questions, while abiding by the former makes things straightforward and simple.” Can you explain why the state statutes read release from confinement?

Larry 16:16

Sure, because both things are happening. It’s because there was an understanding that 1) there’s no jurisdiction for required registration for a person not connected to the state. It would be like requiring a person to register a motor vehicle when they weren’t connected to the state. And 2) the problem they were attempting to address in their lawmaking capacity was to capture the large number of offenders that would need to register from their prison system. I would just venture a guess that 95% of the people that are in the Georgia prison system are going to be staying in Georgia when they’re released. Maybe 85%, but a huge number of them. They want to capture that population as quickly as possible. So that’s why they have the language in there about upon release. Okay, under his logic, what about the people who never go to prison? He didn’t mention anything about people who were put directly on probation. I guess we could read into that, that they don’t have to register, correct.

Andy 17:17

Oh, man. Sounds good to me.

Larry 17:20

So that the language came about because they’re trying to capture the bulk of the people who are being released from prisons that they do have jurisdiction over. There will be a second segment of people who will be entering the state who will be just registrants, who may have nothing to do with the correctional system but rather the civil regulatory scheme. Or there’ll be people coming in on compact who are serving a part of their parole or probation, and they’re compacting into Georgia. And they need to get registered within the requisite number of days that Georgia provides. Say, for example, they compact again, from Vermont, where I think it’s 10 days. I’m just doing that from recollection–I may be wrong–but I think they have a 10-day window. When you come to Georgia that 10-day window is out, though. It is no longer relevant, because you’re not in Vermont any longer. So they need to have guidelines for both segments of the population.

Andy 18:17

So then, to continue, Samuel asked, “if the requirement is only that registration must occur within 72 hours of entering the state. It would seem to me that we are working on the honor system here. Is this the honor system?”

Larry 18:34

It is indeed. But it’s an honor system with huge consequences for those who do not comply in a system that has a plethora of reporting systems in place to distribute leads to law enforcement. It’s not like your little motor vehicle. If you don’t register it, within the requisite period of time, for example, you go move from New Mexico to Colorado and say Colorado has a 30-day window that you need to register your vehicle and you don’t do that. Nobody in New Mexico was reporting that to Colorado. So the only way Colorado is going to pick up on it is if they ask you for verification of when you arrive there, and somehow know that they can discern that you were there longer than the 30 days. And they’re likely to impose an economic penalty for late registration. So it is an honor system, as I said, but it has a lot of reporting taking place since correctional facilities are reporting who their discharging. Courts are reporting who they’re placing on supervision. There are all these reports flowing that has people looking for you. In addition, the law enforcement apparatus has nearly unlimited resources to track you down if you don’t comply, as opposed to most civil regulatory schemes where you just have to happen to stumble upon you if you don’t comply. This one is geared up with vast money to go out and track you down.

Andy 19:58

Samuel asked, “what constitutes entering the state.” You know, Larry, this was a whole lot of consternation for people when we had the conference in Ohio of setting up temporary domicile. The language seems almost intentionally vague to confuse you, or, like they like it. There are certain words that could be very explicit and straightforward without a lot of interpretation. But when it says set up temporary domicile upon entering the state, like, does that mean when you put your head down on the pillow in the hotel? Or does it mean when you like registered it? Like, when does that time cross? So to continue? “In other words, what act triggers the start of the 72-hour clock driving across the border, landing in an airport? How does one prove this? If an authority shows up on my door accusing me of not registering on time? What do I do? Show them an airline ticket stub?” I say you flip them the two birds there. That’s probably not the right answer.

Larry 20:53

I don’t strongly encourage that. My understanding is that a person enters the state when he or she crosses the state line. I mean, we stressed in this podcast that statutory schemes are supposed to be drafted with precision and ordinary language that a person can understand. So you’ve entered the state when you actually enter the state and cross the state line. But at the point, you cross the state border, you have indeed entered the state. But even though you have entered the state that in of itself does not necessarily trigger a duty to register. He or she would have to meet one or more the other criteria that we just talked about above, which is very similar throughout the country, things that triggered due to register. And it’s been my experience that they do not ask for proof when you actually entered the state. But having said that, it’s not beyond the realm of possibility that they might pose such a question, if they have any suspicion or reason to do so. And this would be far more likely when a person is transitioning from one state where he or she is registered already to another state. Say you’re already in a system that has generated a report. For example, my state, you have to notify them–I think it’s 10 days before you’re going to move out of state and maybe 30 days, but you have to notify them that you’re going to move they trigger a notice to the state you tell them you’re moving to. That doesn’t apply to all the scenarios that Sam cooked up because he’s not leaving as a registered person yet. To my knowledge. I don’t think they’re registering people in Fort Leavenworth. So in the situation he’s described, it would be very unlikely they would ask that. But I mean, could they ask that? Yes, I suppose I could. Nothing stops them from asking, when did you get here? And I don’t suppose anything bars them from saying, can you prove that? But I guess my question would be, how do you prove a negative? If you say, well, I got here yesterday. Let’s say you’re driving down I-75. You’ve been in Georgia for 7, 14, or 15 days, and you’re driving down I-75. And you have only done campgrounds. You’ve only stayed at places where there’s no registration. If you had a hotel, there’s no credit card swipe or anything that they could ever get. And you said, well, I just got here on your two hours into Georgia. I just rolled in. How would they know? I mean, trust me. They don’t have we joke about the hovercraft. There’s not a hovercraft assigned to you. You don’t have that level of importance that they’re going to put a detective on you, following you, the day you get out of the prison in Fort Leavenworth to make sure that they know what you are doing. You’re just not that important. Is is important to register?. Absolutely. It’s important. If you don’t do it, you’ll go to prison. But they’re not tailing you in real time.

Andy 23:51

Al in Maryland asked, would they even look at credit card swipes.

Larry 23:55

I think they could very easily do that. After serving on the Grand Jury here in Albuquerque—I served three months–it would take virtually nothing to get a subpoena for them. The cops asking for it is all it takes. So if law enforcement came and said that they’re investigating or failure to comply with PFR requirements, and they wanted to get credit card data, I think they would have virtually no trouble to get it because we issued probably at least 40 to 50 easily subpoenas and we didn’t question any of them.

Andy 24:30

Samuel then posed the following: “What if I never ‘reside’ in North Carolina but simply ‘visit’ my family; never exceeding the time I am allowed to stay in the state before registering in fourteen days. On Day thirteen, I go to South Carolina and ‘visit’ my buddy Carl for a day or two before going home to ‘visit’ my family again?” Wouldn’t this be completely legal?

Larry 24:52

Yes, on its face, it would be completely legal. But keep in mind that some, if not all states, have a cumulative number of days that person can be present over a one-year period. And sometimes it’s a rolling one-year period. And that can trigger duty to register. Now, again, I don’t know how they would know. But the cumulative number of days that you’ve been in the state. They do have that on their books. In addition, you do not want to play games with the system, because this is one of the reasons that laws are amended. Law enforcement people approach legislatures with examples of how registrants are gaming the system. So if you make it known that “Well, I tell you what I don’t read your law real close it as long as I leave and go back across the state line for at least a few hours and come back, I can skirt this.” That is not going to go over well, because that will be handed in as the reason why we need to change the requirements of the law. So if you got to do that game, I don’t encourage it. If you got to do it. Don’t tell anybody you’re doing it.

Andy 25:52

God, I don’t know why you wouldn’t tell anybody. Um, well, let’s keep going. “Obviously, I am being facetious, but my point is this: If no one is tracking my movement, as you said to Ashley in your phone conversation, and if I were not on supervision, why would I register in the first place? This laissez-faire attitude of registration seems to fly in the face of everything you and Andy have been telling us about US Marshals and sting operations and SUVs pulling up in front of my home.” I want to interject here for just one moment. Registration is scary as you fill in that next word, but at the same time, there’s still humans on the other side of it and unless something triggers them unless or they have some sort of wild hair up their hiney, they’re not coming to go look for you. Like you have to kind of like trip some trip wire somewhere for them to come at you. But when they do, they’re gonna come for you. So I don’t think we have a laissez faire attitude about it. But that we also have an attitude of like, try to live your life also, and don’t live in fear.

Larry 26:54

Correct. And this is kind of an example that occurs when a conversation has been filtered through another person, no disrespect to anybody. But start a conversation about a room of a dozen people and come up with one sentence and ask people to circulate that sentence around the room and come back and see if it makes the round. I have never suggested or even implied that a person should take the registration obligations lightly. You should not. What I have said is that a person can overthink and come up with wild scenarios, and then obsess over them. Some of the scenarios communicate are very creative, to say the least. And in fact, it takes a very creative mind to come up with some of these hypotheticals. The reason you should register is that you have an obligation to do so. And failure to fulfill that obligation will eventually send you to prison. They will find you it’s not like it was pre-Adam Walsh, when the states had no interest in tracking down the missing PFRs. And there were alleged to be 100,000 who had gone off grid. The federal marshals have unlimited resources. And they love making these cases. They yield very long prison sentences in the federal system. And long term of supervised release following this. And if you get convicted of a registration violation, and the federal system, you’re going to serve a period of incarceration, and you’re going to be put back on PFR type supervision polygraphs and all that stuff. Take this seriously. It is not to be played with. If you have an attitude that you can fly under the radar if you stay in this country, they’re going to find you.

Andy 28:39

There’s a movie clip out there I was almost gonna grab it for this episode tonight. I can’t remember what movie it was from, but it was “we will find you and we will kill you.” They just kept repeating that. But what if I jaywalk? “We will find you and we will kill you.” I was like this totally fit for this scenario of this. Alright. Then Samuel wrote the following. ““I imagine that SORNA/AWA was passed to clean up these issues. What I am hearing, though, suggests to me that the 72-hour regulation is completely arbitrary. As an example, is there anything codified to prevent the following scenario: After leaving Ft. Leavenworth, I needed some time to collect my thoughts. I am not destitute, so I rent a car and head for Colorado to see the Rockies, being so close. I spend a few days at a family-oriented resort, then leave the state well before I would need to register in Colorado. I am heading to Iowa to see my brother. While there, we go to my nephew’s school to see a play in which he is the lead. Afterwards, he asks if I can help chaperone my nieces’ sixth birthday party at the park. I leave Iowa well before I would need to register and go see my friend in Washington. He surprises me by announcing that he has purchased tickets for a cruise for both of us as a getting out of prison gift. We leave the next day on a family-friendly cruise. Now in international waters and having still not registered anywhere, I am good to go. After a few days, we return. I fly out of Washington well before I would need to register in that state. I arrive in North Carolina, and I register in Cumberland County, where I will reside, within 24 hours of entering the state. It is now two weeks since I left confinement, but I am well within the parameters of registration under the entering the state model.” Larry, do you see any potential violations here?

Larry 30:18

Let me emphasize this is for non-supervised individuals. I see a plethora of violations if you’re under supervision, because all those things you described would have been off limits as a condition of parole, probation, any type of PFR supervision. But at first glance, as he described it, I don’t see any problem. Everything he described would be legal. What I do see in the scenario is that it’s extremely unlikely to occur in the real world. This means that nobody and the various legislatures would have ever thought of this. And even if they had thought of it, there’s really nothing they can do. A non-supervised person is free to travel as he or she sees fit. When they’re released from custody, all the person needs to do is be cognizant if there could be a registration obligation in the states they’re visiting. So I would encourage him, not that the hovercraft is following him, but just in case he has any encounters with law enforcement, and they run his history if he’s in all the states he mentioned. And they say, oh, we see that you have this conviction, make sure that you’ve thoroughly analyzed what all the various things that could trigger a duty in that state. Like in Las Vegas, Nevada, if he were to go there. If he went to Las Vegas, Nevada, he would have 48 hours it is my understanding to get registered, and therefore he could be in violation of Nevada law, and possibly the federal law as well, because I think we can agree that Kansas and Nevada are separate states, right?

Andy 31:54

Yes, that’s an obvious question. Yes, they are separate.

Larry 31:57

In order to get to Nevada, you’d have to travel in interstate commerce leaving Kansas. That act defines a movement across jurisdictional boundaries as they travel interstate commerce. So therefore, he would have left Kansas, he would have traveled in interstate commerce, he would be in the state of Nevada, he would have exceeded the requisite 48 hours, which is the perfect jurisdictional setup for the marshals to prosecute him. So if the Las Vegas Metropolitan Police were to have some reason to run his background, something tells me that they would relate this to the US Marshals because the federal law is so much tougher. They’d like to hand these cases off. They don’t want to do the work, and they can send them away on the federal government’s dime. I’ve never heard such a scenario in all my life. I mean, this is one of the best ones I’ve ever seen. But if you’re going to do all these things, then make sure that you’re complying with the registration obligations of that state within the requisite time of being in that state. Newsflash, if you register in Nevada, they will keep you on the list for the rest of your life. Even though you move out, they’ll show you are no longer there. But you’re still listed on their list. So think really hard about going to Nevada, think really hard about going to Florida. There are a number of states that have very short windows of registration, and you’ll be stuck on their list for the rest of your life. Even though you’re not having to register there, you’ll be stuck on their list.

Andy 33:25

And just to pile on top of that one, that, like Georgia, when you move to Georgia, it says if you are on a registry anywhere else, not whether you’re required to register, whether you’ve been convicted or anything like that, that that is the wording is that are you required to register anywhere else. And if you are on listed on one of those registries, then you get to register in Georgia when you get there.

Larry 33:46

I have told this story before, but it’s been 100 episodes back. There was a guy many years ago who contacted me in my capacity as a consultant. He had been convicted in the state of Wisconsin. And he did not have to register in Wisconsin because his crime predated their coverage period. This was like in ’93., and this wasn’t covered with his conviction. And he decided he was going to make him a bunch of money in Nevada. He goes out there and they said, “Welcome to Nevada, we’re glad to have you here. And in order to work in the gaming industry, you need a gaming card. And so you need to run down, get fingerprinted, and we’ll give you your card.” And so he got fingerprinted and they ran the background check. They said oh, you’ve got this old conviction from ‘93. And so then the Nevada authorities said, “by the way we understand you’re not registering in Wisconsin, but our coverage period encompasses you because ours goes back further than 93. So we’d really appreciate if you would get registered with us.” And he did get registered. He discovered that since he was on the Nevada registry, working in the casino industry was not as exciting as he had hoped. It faded its luster when he had to register, so that he wants to go back to Wisconsin. He gets back to Wisconsin, and they have that exact same language you just described to Georgia. If you’re registered anywhere, you have to register there. And he said, wait, I’m not required to register, and they said, look at what it says in the law book. It says, if you enter this state while registered in another jurisdiction, you will register here. And I said it can’t be any clearer than this. And he says, well, I don’t agree. They said, well, if you don’t agree, we’re gonna lock you up. So he registered, and then he decided to move to the state of New Mexico, because our coverage period doesn’t start to 95. And he was off all supervision prior to 95, related to his offense. So he comes here. And then New Mexico said, well, we don’t have any basis to require registering. So you’re done. Then he goes back to Wisconsin, as a non-registered person, point of making. This is very nuanced, convoluted stuff. There’s not a soul that can tell you this stuff. There’s nobody you can call. It’s all very unique to your circumstances as what you do.

Andy 36:10

Samuel continues, “I have not heard or read anything yet that would suggest that my activities in this scenario would not be completely legal. So, again, what am I missing? I have been telling guys here that they need to register within three-days of release. In fact, I was half-way through an article to help inform the inmate population of this requirement when Ashley spoke with you. It is now on hold, as, apparently, I have been wrong all this time.” Has he been wrong all along? Larry?

Larry 36:37

No, he has not. So each person’s circumstances are completely different. Some will be leaving JRCF under parole supervision. Under those circumstances, that person will not be permitted to take cruises and travel across the United States, or two week or one month vacation. That person is going to have explicit conditions on their parole that says you will report to a parole officer in X number of hours or days. On the other hand, a non-supervised person could do exactly what he described. The person leaving under supervision should follow explicitly what their conditions are that they’re being told, unless you want to risk being violated right away. If they tell you to report within 24 hours, you do report within 24 hours. And if you have a difficulty before you get discharged, and you ask look what happens if the bus I’m riding blows up and is no longer operable? And I’m not going to make it. Or suppose there’s a snowstorm. It came up in this scenario of things that was discussed. What happens, who do I call. And that’s what you need to ask before you leave. Because they will violate you if you don’t reach the destination report in time. But if you’re not under supervision, you’re only on a civil regulatory framework, which is a whole different standard. It’s still serious business, and you need to comply with it. But you have basically freedom to do what you want to do and go where you want.

Andy 38:16

And it’s a civil regulatory scheme, right? I mean, akin to your driver’s license. I know not, but sort of, right.

Larry 38:26

Right. It’s a civil regulatory scheme. We need to learn to say those words. Even though it feels very pure, there are many aspects that are very punitive. It helps you when you’re arguing in a political setting against things they want to add on you if you can bring yourself to utter those words. I’ve not been able to get many advocates to do that. You can say, look, folks in a civil regulatory scheme, we can’t do these things. Because the civil regulatory scheme is vulnerable to a constitutional attack if you start trying to inflict punishment. We know that you feel bad for the victims. We understand that you want to help out these people. But you can’t do this within the civil framework of a regulatory scheme. Try those words. You’ll find that they’re very effective. But most people just reject them out of hand because they don’t want to say them. They say, “I don’t understand why you’re so stupid. You don’t understand. There’s nothing simple. There’s not a regulatory about that this is punishment. Why can’t you I admit that?” I do it all the time. But it’s still on the books as a civil regulatory scheme. And you use that to your advantage. And you tell them “Hey, this is a vitally important public safety tool that can’t be jeopardized by trying to inflict punishment. They’ve paid their debt. They’ve done their time they’ve done their supervision. This is merely a tracking mechanism; we cannot impede their liberties through a civil regulatory scheme.”

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Andy 40:36

Well, I’m going to bring Ashley on, Larry. And so Ashley, do you have any follow up questions that you wanted to go over?

Ashley 40:45

I do. First, I want to say my husband knows what he needs to do for his situation. He is in a role at the prison where guys ask him questions, and he’s supposed to find answers and get back to them. And he gets a lot of questions, and his goal is to inform the inmate population there. And unfortunately, there’s no one there who either cares enough to help them with these questions. And I mean, we’re talking like less than a handful of guys who maybe get released each month. So they feel like with such a small population, they should be able to have someone help them and answer questions. And no one can seem to be bothered to do any research or help them, and they certainly can’t do it themselves. So I appreciate that you guys are answering questions.

Larry 41:47

I somewhat disagree with the assessment of people. I don’t know what their job descriptions are. I don’t know what they’re required to do or what their role is. But registration is very nuanced and complicated. Enforcement is very uneven, even within the state itself. And many states operate on a hybrid system, meaning that the state police or the state law enforcement doesn’t run the registry itself. It’s all delegated to Georgia, for example, 159 different counties in Georgia. In Texas there are 254 different counties, and the different counties have their own unique way of doing things and interpreting the law. And some counties are far more zealous in their enforcement. And they even are prompting them things. And in addition to that, there’s a plethora of locally imposed restrictions across the country. All states don’t have locally imposed, but many do by counties and cities. But the bottom line is that I don’t know what other information that we talked about, and what information additional than what they’re being provided today. What the bottom line is that you’re going to need to register, and you should register as promptly as you can when you enter the state. And they will tell you what you need to do when you get there. They will tell you. It’s just like when you take your car–Andy and I talked about that earlier–I’m pretty sure you take your car and the documentation, and you try to register it. And they say, well, we’d like to register your car, but it needs an emission inspection certificate. Do you have that one? No, I don’t. Well, it needs a emission inspection. Have you taken it by to get the VIN as well? No, I haven’t done that either. It has to be certified because it’s coming into the state new. They will tell you what you need to do when you get to the registration office. The registration is going to be very similar around the country. Some states have a lot more information they’re going to collect. But as far as I know, everybody collects a photograph. Everybody will collect a DNA sample. Everybody collects your name and where you’re working at. Most if not all the states now what you know what your online identifiers are, but there’s even litigation pending against that. They will ask you where you’re going to be employed. Some states will ask you more stuff even if it’s not in the statute. In the case of Cumberland County in North Carolina, they have been known to impose things that are not in the statutory scheme. So I’m not clear at all what they feel they’re missing. They’re being told you have to register their big toe, within three days, which is the most conservative application. It may not be three days. They may be going to Vermont, where it’s 10 days. But if you register as quickly as you can, I’m not sure what else they’re wanting to know that they feel like they’re lacking, and maybe I’m just not able to comprehend. So help me understand what they’re missing.

Ashley 44:34

So I think all of these questions and crazy scenarios popped up last month. They started a new thing at the prison where when the guys were released, they would take them to the airport and fly them home. So they’re on their way. But now they send the guys from prison at Fort Leavenworth to Fort Sill, Oklahoma, where they do the out-processing kind of stuff, and then they fly them home. This whole time they’re unsupervised, they’re released, you know, as soon as they leave Fort Leavenworth. So the guys were kind of getting worried does that day one start? You know, when they leave Fort Leavenworth, and then they’re wasting their time in Fort Sill. And then that’s where the lizard scenario came up like, what if the planes delay? What if, you know, it’s just like in the federal government, they’re not going to be like, well, the army said, you know that they’re just concerned that that’s adding, but I guess that’s not a real issue if it really truly doesn’t start until they enter their home state.

Larry 45:43

Well, we did discuss that. And we did a lot of work of trying to do the best we can on this program. If you were to go to Fort Sill, and I’ve never been there, but I think Andy was stationed there. But if you were to go to Fort Sill and you had the ability to come and go from that military installation and mingle in the public, I would think that you would need to register in conformance with Oklahoma’s law in whatever that time of entering the state. Because you have, in fact, entered Oklahoma. But if you’re not free to come and go, which I think you’ve made it clear that they wouldn’t be free to come and go, they’re just doing a stop off there to be processed, I will just about bet my teeth that no state official or county official is going to come barging into a military base and say, well, you know, we want to find out because it seems like you might have some PFR is in here. I mean, they’re not going to do that. So the question is going to be if they are they free to come and go. So a blizzard comes hypothetically. Oklahoma is a three-day state, and there’s a blizzard of all blizzards, and they can’t get out of there for four days, and they’re free to come and go for those four days. Theoretically, I would think that they would have a registration obligation. Does anybody really care if they were just passing through? I have never heard of a person who’s passing through a state in what you described as their final destination, and they got held up for an extra 24 hours, I have never heard of a prosecution of such now. Is it possible? I suppose anything’s possible. But you think with me being on the National Lawyers lists or the state lawyers lists or having trained attorneys, you would think that if this had happened or if it was a reasonable possibility, I would have heard of it by now. But I haven’t heard of that. So I don’t think that’s a realistic fear. But I mean, could it happen? Yes, it could happen I suppose. Andy, how deep does the snow get in Fort Sill, Oklahoma?

Andy 47:39

Well, being super specific–it like never snows, but it will be really, really cold. And it will snow, but it is like a half inch because there’s this Wichita mountains scenario thing there. Like it doesn’t snow there. I was there for two and a half three years and it never snows.

Larry 48:04

Well, I’m thinking that yes, you could run the risk of having to register in Oklahoma. If you were there long enough. I don’t know the specifics on how long all the different things that can trigger a duty at Oklahoma. And Oklahoma is a tough state, and you could get a lot of state time for not registering. So again, I would say if you got trapped in Oklahoma, do your homework and make sure that you don’t have an obligation to register. Make sure you know exactly how long you can be there. There is a flight record if the military flew you there because something tells me the military is notorious for keeping records. They keep records of when the wind is blowing, and how many knots it’s blowing and, and all these different degrees of the bow and the stern. And they’re notoriously good at documenting. So that would be a case where they might be able to prove it.

Ashley 48:48

Yeah, I think the fear was more of not so much having to register in Oklahoma but showing up to register at home, if you’ve been after you’ve been delayed in Oklahoma, and then they’re like you got released three days ago. Why are you just now here? You say we overthink things. But this is all brand new to all these guys. And it’s scary stuff. So they don’t want to mess up on accident and end up back in prison.

Larry 49:18

Well, I appreciate that. I understand, particularly with this harsh sentencing. But when everything else fails, when you’re trying to defend a crime, the prosecution when they’re screening cases, most rational prosecution screeners look at can we prove the elements of the crime and the elements of the crime of failure to register the general elements are that they have to know that they have a duty to register, and they have to willfully or intentionally not do that registration. And assuming that on the scenario that they’ve cooked up that Georgia actually has jurisdiction before he ever gets there, which they don’t, in my opinion, but say Georgia did have jurisdiction, then it would revert to what the prosecution could prove in terms of the requisite elements. You’ve got an impossibility to finish you can always assert. So you get this before the jury and you say, “ladies and gentlemen of the jury. This prosecution was needless, pointless, because my client was a servant of our country and the armed forces. They were released from military custody, and they were unable to make it to Georgia within three days. Are you going to convict him for this? Or do you want to send a message to the prosecution for wasting everybody’s time?” That prosecution is never going to get past screening. Because Georgia doesn’t have jurisdiction to begin with until he enters the state and if he got stranded at Oklahoma, you just don’t have the requisite elements. You can’t beat those. So this case would be on life support the minute that it was filed.

Andy 51:04

Larry someone in chat says, “Crime, what crime? It’s a civil regulatory scheme.”

Larry 51:08

Well, you can be prosecuted for failing to comply with civil regulatory schemes.

Andy 51:12

Yeah, if you don’t have a driver’s license for X amount of time, you are going to get in trouble eventually.

Larry 51:18

Yes, you will, you will get a very light citation to begin with the monetary fine, but you keep doing it and then what? Everything that’s civil regulatory can be punished. Failure for a young man to register for the United States draft can result in up to five years of incarceration in the federal penitentiary system. That’s a civil regulatory scheme. I think everybody would agree. There’s no punishment inflicted by registration for the draft, so do it. You are subject to find out you are subject to prosecution. Do they give people five years for failing that reg? No, they don’t. But they could. It’s on the books.

Andy 51:52

Please continue. Ashley. Do you have any other questions?

Ashley 51:57

I think I’m good. They have a ton of parole questions. But we’ll save that for another day.

Larry 52:03

So well, that we will keep doing this from time to time. It’ll probably be a few more episodes before we come back to it again. But these are good things. And if these guys are thirsting for information, we’ll do the best we can. Remember, we’re not experts in the military. My professional career has done nothing in this arena yet, so we’re learning with you.

Andy 52:26

I was sharing with Ashley, the other day that they’re not the first people to be convicted of this. If 900,000 or 800,000 people are on the registry, how many of those people were convicted through the military? I bet you the number is in maybe in the hundreds that were actually convicted in the military. So the number of people that they could even like coordinate between each other to try and figure out what information they could coalesce together would be scant at best.

Ashley 52:58

Yeah, I think that’s why it’s super confusing to everyone at the Fort Leavenworth prison. Most of them don’t live there. And they’re not going to stay there when they leave the prison. And the civilian versus military rules, they don’t always translate the same. So it’s very confusing.

Andy 53:20

And Larry, I told you this earlier that I would chill out on questioning them so hard. Like there’s this whole thing about the government doesn’t do anything. But these are people that would like to get a government job. And then they get placed there. And their requirement is to inform these people about something that they probably don’t have a legal background in. Or maybe they do, but this isn’t their life’s work either. And they have to know all of the ins and outs of how this whole registry thing is going to work. They’re just there to get their GSA pay and go home at five o’clock every day. I would hesitate to bag on them so hard about them not being able to offer any information. They’re not getting paid extra to know anything more than anybody else knows. This is my opinion.

Ashley 54:09

I’ll keep my mouth shut on that.

Andy 54:11

I just don’t think that that is their role. Like experts at it. They’re not Larry level of information about every individual 50 registries, the seven territories, every county all 5000 counties in every little city jurisdiction. That’s like, there’s a lot for them to know about every individual’s situation.

Ashley 54:32

I agree.

Larry 54:34

Well, we’ve gone a little bit long, but I think it’s been worthwhile. So we’ll have to drop some of these articles. If you don’t have anything else, Ashley, we really appreciate you being with us again.

Unknown Speaker 54:45

Thank you. I appreciate you guys and all the guys appreciate you. They want to thank you.

Andy 54:50

Thank you for being here again. It was fun. Now the fun stuff, Larry.

Larry 55:01

Let’s do the prison telephones and let’s do the police shootings. I just can’t help myself on the police shootings.

Andy 55:12

Good grief. You people put in this article about the record number of people killed by the popo. “Law enforcement killed at least 1,176 people in 2022, making it the deadliest year on record for police violence, since experts first started tracking the killings.” What on earth does this have to do with PFRs?

Larry 55:49

Not much until your loved one is on the wrong end of an encounter with the police. “In 2022 132 killings (11%) were cases in which no offense was alleged; 104 cases (9%) were mental health or welfare checks; 98 (8%) involved traffic violations; and 207 (18%) involved other allegations of nonviolent offenses. There were also 93 cases (8%) involving claims of a domestic disturbance and 128 (11%) where the person was allegedly seen with a weapon. Only 370 (31%) involved a potentially more serious situation, with an alleged violent crime.” So this is a huge problem. And it is going up according to the stats. Anyway, that’s why I put it in here because it’s a serious issue.

Andy 56:49

Hey, do you think it’s a valid argument to try and compare this to another country like our neighbors to the north? Where they have about a 10th of the population, and they have like 30 police killings a year. Is it relevant to compare us to them like that?

Larry 57:12

Yes, it is.

Andy 57:15

Okay, um, according to the article, there is also some jurisdictions and states that have seen reductions in lethal force, “California, the most populous state has experienced a 29% drop in killing since 2013, while Texas, the second largest population has this 30% increase in that timeframe, according to Mapping Police Violence.” Now, why would there be a 30% increase in Texas?

Larry 57:40

Well, I can’t say for sure, except Texas has not made reduction in number of police killings a priority. “The consistent numbers year after year make clear that “broad systemic change” is necessary to prevent these killings, said Dr Elizabeth Jordie Davies, a Johns Hopkins postdoctoral fellow and expert on social movements. While there have been growing calls to defund police, leaders of both political parties have advocated the opposite – pushing for the expansion of law enforcement. There’s a continual commitment to using violence to control people and manage problems in this country. And as we keep giving police more money and power, we’ll continue to see more police violence,” Dr. David said. Dr. Davis sounds almost like me, because I’ve been saying if you give the police unlimited resources, without any accountability mechanism, without asserting your direct supervisory control, what would you expect?

Andy 58:43

Ah, is this a red versus blue issue, Larry? Is this a mindset of a super blue versus a super red state where they say don’t take my guns? Don’t try it in Texas, all that stuff. Do you think it’s that?

Larry 58:56

I don’t think so. I don’t. I think it’s bipartisan. I mean, Biden came out said, oh, no, we don’t need to defund the police, he said. Nobody ever talked about defunding the police meaning eliminating all funding. They talked about reducing and redirecting some of the funding to police to maybe what was mentioned in the article, which was more mental health responses, which they’ve tried in subsidies, rather than sitting out the uniformed officers to pull guns on people. But it’s pretty bipartisan. When you put your finger up and test the pulse of the population, the people with their cute phrases of defund the police, they scared the hell out of everybody to think that there was a movement to actually take all funding away from the police. There never was. So I don’t think it’s red versus blue. I mean, Team Red is more likely to be willing to give the police whatever they say they need. But Team Blue is right in there, giving the police more research resources than they actually need. But the reality is if you talk about reducing funding, you see what happened. We’ve ran spots from, from MMA political ads explaining what happens, you know, the fear of crime. We’ve done it.

Andy 1:00:10

All right. And then you did also want to cover this other article there. All my stuff’s out of order since we ran long, and I’m really picking on you. But this is from AP news “Biden signs bill to ease cost for prisoners calls to families.” And so we have some good news here, President Biden signed this law, a bill aimed at easing the cost of for prisoners to call family and friends. The legislation clarifies the Federal Communications Commission can set limits on fees on audio and video calls inside corrections facilities. This is good news. I vaguely recall that this was put into place during the Obama administration who was challenged in the courts. So right before I got out, Larry in 2014, calls up to that point where about 25 bucks for a 15-minute call. And then just as I was walking out the door, they became like $4. But then states sued, because that’s a significant revenue stream for them. And I believe that it reverted back during the following administration. So it is coming back.

Larry 1:01:14

Yes, you are correct. You are indeed. According to the article, “in 2017, under President Donald Trump, the FCC abandoned the fight to lower the cost for prison phone calls. A federal appeals court eventually ruled the FCC didn’t have the authority to cap the rates. Now with this legislation, the FCC may indeed have the authority.”

Andy 1:01:39

You just said that they may have the authority. What do you mean by that?

Larry 1:01:44

Well, the statutory language gives authority, but they may or may not. Keep in mind that this law, like all laws, is presumed to be constitutional. However, it does not mean that it is not vulnerable to challenge. I can think of several challenges that the telecommunication industry might assert. I mean, we are short on time, but I could start articulating them. But also keep in mind that this is a cash cow for the companies. And to some degree, the prisons as well. They’re not likely to go down without a fight. So I just don’t think that they’re going to say, well, we have finally seen the light now. We don’t want this money anymore. I don’t see that happening.

Andy 1:02:23

There you go again. You know, I wanted to find a whole bunch of superhero guys to fight Doctor Doom and Gloom. And so I also see that Governor Newsom in California signed legislation making calls for how many dollars, Larry? How much is that one?

Larry 1:02:39

It says free.

Andy 1:02:41

Oh, can that stand?

Larry 1:02:44

Not sure. I don’t see how, if it’s vulnerable, and I believe that they are vulnerable. You’re talking about–I’m just the messenger here–but you’re talking about capitalism although the inmates are not free to choose their phone carrier. But you’re talking about a system where companies have invested enormous sums of money setting up these elaborate communication systems in prison so they can monitor and pick up on key words. And you’re telling them that they do not have a right to have a return on their investment, that they can’t make any money. And of course, the question is, what’s the fair amount of money? Well, I’ve always been told that the capitalist market will determine what is the fair return. And theoretically, other companies could come in and make a similar investment. Or they could pitch to the prisons that we can do this cheaper. So if you’re a big believer that capitalism solves all problems, and it doesn’t need any governmental intervention, then you would say that this is an intrusion into the capitalist system. I mean, you couldn’t say anything to the contrary, could you?

Andy 1:03:46

No, I guess not.

Larry 1:03:48

So therefore, I think that we could see challenges. We’re likely to see challenges, and time will tell if they can do this. But this is definitely an intrusion into the capitalist marketplace. And I just don’t know if it’s going to stand or not. The regulatory framework is very limited in terms of what they can and cannot do.

Andy 1:04:10

Well, very good. Is there anything else we do? I mean, maybe we have a minute or two before we have to close it all down. Do you have anything else that you want to do before we get on here?

Larry 1:04:21

Well, not really.

Andy 1:04:23

Okay, I have to ask you this thing. So I put an article in there about laws changing across the country, and this one just jumped out at me. California jaywalking. So despite the protests of law enforcement agencies, California has decriminalized jaywalking, Larry, which tells me that all the jokes that I make about felony jaywalking were not untrue, because if they’ve decriminalized it then it was criminal before. So your turn?

Larry 1:04:55

Well, I think you’re onto something here. That’s one of the things that was on the books as a pretext. A lot of little petty things are not really there because we’re so concerned about them happening. It’s like seatbelts. I mean, seatbelts are great. And I recommend wearing them, although I’m not completely 100% With Biden belted, but it gives protection. With jaywalking, I mean, most of the cops could care less if you get splattered. But if you’re walking around and you don’t look like you belong there, quote, you look a little bit out of place, and you will just don’t fit you Jay Walk, they have a reason to encounter you and ask you for identification, and to do an NCIC background check on you. So the fact that some of these things are being decriminalized, it will stop some of the pretextual stops. Now, law enforcement will invent others. They don’t give up and go away without a fight. So they’ll find other things. But every time we can get a nuisance crime off the books and decriminalized, it stopped some of the pretext that goes into how law enforcement uses those offenses.

Andy 1:06:06

You just can’t admit that when I say felony jaywalking that I wasn’t exaggerating? You just can’t do it, can you? So anything else? Did you want to do anything before we pop out?

Larry 1:06:21

Just, welcome. I think we got like 10 new patrons over the Christmas break.

Andy 1:06:25

We did?

Larry 1:06:28

I was guessing.

Andy 1:06:29

Oh, I’m not aware of any, to be honest. I think everyone pretty much goes on mental vacation, as well. But I will say Happy New Year to everybody. It’s going to be a fantastic year for Registry Matters. And I will be sending out all of those little receipts for your contributions for the year. So if your company does any sort of matching program, that would be fantastic if you could submit those. So happy 2023 to you, Larry, and I’ll see you next week.

Larry 1:06:58

Thank you. Looking forward to it. Take care.

Announcer 1:07:04

You’ve been listening to FYP.

Announcer 0:00

Registry Matters as an independent production. The opinions and ideas here are that of the host, and do not reflect the opinions of any other organization. If you have problems with these thoughts, F.Y.P.

Andy 0:12

Recording live from FYP studios, east and west, transmitting across the internet. This is episode 252 of Registry Matters. Good evening. How are you people this evening?

Larry 0:31

We’re doing lovely.

Andy 0:33

Who was that other voice there?

Aracely 0:36

It’s me. I’m not a ghost. I’m here.

Andy 0:45

All right, so we are being joined tonight by an individual who is from Texas. Her name is Aracely. And her son was trapped into one of these crazy sting operations that we’ve covered a couple times. This was on Craigslist, casual encounters, no strings attached in 2018, right before Craigslist shut down their personal ads. So that’s like the intro version of what is going down this evening. And tell me what other things that we might have going on. I know I dove right in Larry. I wasn’t expecting Aracely to jump in so quick. But tell us what we’re going to be covering today.

Larry 1:16

We’re going to be covering this thing in great detail with a lot of questions that have been prepared in advance that I have looked at. And we’re going to be covering an old case that’s been around for years and years out of Arizona. It deals with a person named Steven May on his quest for freedom and how the system of justice has failed. Steven May

Andy 1:44

We talked to a woman–maybe a year ago–that we last talked about Mr. May?

Larry 1:49

I don’t know. I know it’s been a number of times and probably within the last year. It’s because this case lives on and on and on. And they’re trying to find everything they can to get him out of prison. And I don’t blame them.

Andy 2:01

Of course, because he didn’t get five years. How many years did he get?

Larry 2:05

Just 75.

Andy 2:07

Oh, just a piece of cake. No worries there. You’ll get out before you know it. It’s 75 years. And I mean, maybe if you were locked up when you were two, that seems plausible. But he’s not. I don’t know how old he was. But 30s or 40s, or something like that. So 75 years. Why don’t they just say, here’s a death sentence if that’s what they’re going to do. That’s what they should have done.

Larry 2:29

He’s a welder into his 40s. That’s not pushing the door. It’s near fifty. So yeah, it’s a life sentence effectively.

Andy 2:36

All right, um, do you have anything at all that you want to talk about before we dive into the sting stuff?

Larry 2:43

No, I’m looking forward to having all these tough questions. And there’s going to be some commentary at the beginning and at the end, and then we’re going to take the questions.

Andy 2:57

All right. And I want to remind everybody that we are not enemies. We’re not trying to be combative. And so with all that ground rule set, Aracely, you have like an opening remark that you would like to make, I guess?

Aracely 3:13

Yes, yes, thank you. Um, so I wanted to start off by saying that it makes sense that these online child predator sting operations started when they did, because back in the late 90s, and the early 2000s, online chat rooms were general, and they were being used by people of all ages. That means adult and minors were together in the same chat rooms. And these were chat rooms that were created for socializing. And so it made sense to pose as a minor in those places to attract adults who were seeking minors to exploit sexually. So it makes sense for them to have been doing that in those places. As the internet evolved, separate adult only sites were created for the purpose of adults meeting other adults for sexual purposes. Those that were conducting these “child predator” sting operations obviously figured out that it was way easier to target men in these adult predator sting operations. And they could use those men to create cases where they were “fake catching” predators who were seeking kids online, then it was to address the real problem of minors being targeted by adults online to exploit them in the places where children were online.

Andy

Larry, please. What do you have to say to that so far?

Larry 4:38

Oh, so far, I agree with what she’s saying. And I would even add to that. In my 20 years in law, I think I’ve seen one case of an actual minor being propositioned online. So I’m not sure that I think she’s being more generous than I would be about that it makes sense to have these operations. I think it’s a solution searching for a problem.

Andy 5:04

All right. Well, please continue then madam.

Aracely 5:06

Okay. Well, this is a problem because of the money that has been made from fooling people into believing that these things operations are actually helping keep their kids safe online.

Larry 5:20

What do you mean by the money being made? And I already know because I understand what happens. But just for the audience, can you explain what you mean. How’s the money made?

Aracely 5:30

Well, we know that they receive ICAC funding from the Internet Crimes Against Children grant program. In order to receive funding from the federal grant program, The states or police task forces have to report their numbers of how many investigations they have conducted of online, child exploitation, how many arrests were made, how many were referred for federal prosecution, how many convictions for the state they had, and what types of sentences were given. So they need the arrests and the convictions in order to get, maintain, and maximize the money they get from these federal grant programs. And if these cases aren’t happening on their own, police must go out and create them for the purpose of getting this money. And we also know that some also received donations from other sources like private donations from organizations. And vigilante groups who are not law enforcement also do this for monetary purposes. Many of them solicit donations, and they’re also looking to make money off this by streaming the videos on places like YouTube.

Larry 6:48

Ah, I agree with what you’ve said there. But without being combative or confrontational, there is no state or local jurisdiction that’s required to do these just because they’re in search of a pot of gold, particular because it’s free federal money from the large federal government that everybody says is too big. They are seeking money that they don’t have to apply for. If you live in a city that has a police department that takes part in these as a part of the political process, you can put pressure on them to not seek the federal funds, because they’re not required to do that. But I agree with you that in fact, there is money driving this. When there’s money to be had from the big old bad federal government, everybody who claims they want a small government has their paws out to get into that trough. But yes, so far, so good.

Aracely 7:45

Yeah. And it makes sense because police officers, you know, don’t have a high salary, so it makes sense that they would want in on this money because they get to work overtime hours, and all that. And it also increases what goes into their retirement funds and all that. So there’s a lot to that. Anyway, it takes much more effort with way too few catches if the decoy police officers simply pose as a minor in the places online that kids hang out on and act like kids do online. And I’m talking about places like Facebook, Instagram, Snapchat, video game platforms, which are the places where real kids have been lured by, you know, predators online, who are seeking kids to exploit. I’m pretty sure this is something that was figured out even before the internet evolved into having those separate adult only websites that are used by adults for sexual purposes. By someone claiming that they are a minor after they have used sex to lose the men, and to contact them–it’s just much easier for that person to force a conversation to be about sex, because they’ve already set it up to be about sex. And it’s much easier for them to force it into having been a conversation about sex with a minor, and then turn around and lie to everybody about it, claiming that they caught an online child predator, and they stop them from raping a child. They were never looking for a kid to begin with. So that’s why I say they’re lying about it.

Andy 9:23

What do you say about that, Larry?

Larry 9:26

So far, I agree with what she’s saying. That is precisely what happens when they are in these chat rooms posing as adults to begin with. Then they morph into minors, and it confuses the adult, because the adult thinks that some sort of role playing is one option. They think it’s a fantasy play. They don’t know what to think. And they use all sorts of guilt mechanisms to try to keep the engagement going. They say, Well, you’re just like the rest of the adults. You don’t care for me. I mean the detectives, they’ve had immense amount of training, and so they are at a great advantage over the unsuspecting individuals. So everything she’s saying is so true. And that they go out you and say that they kept all these people from taking advantage of a child. These people were ever seeking to take advantage of a child. So far, so good.

Aracely 10:23

It’s completely created to compute them in. And of course, most of them are curious, and some of them are even concerned. So yeah, that’s a big problem. So I want to move into a federal law, it’s 18 U.S.C. 373. I’m not a lawyer. But I do a lot of research and look into the different laws and all that because I’ve been trying to figure this out–why is this happening? And how can it be that they keep getting away with doing this. This law specifies that it is illegal for anybody to solicit another person to commit a federal crime. It does specify that it must be a crime of violence. And then we know that law enforcement, their goal is to create federal cases, because of course, that helps them with their funding. So their goal is to refer these to federal, to the federal government for prosecution. And we know that 18 U.S.C. 2422 is a federal law that specifies that it is illegal to use the internet to solicit someone for sex who was under the age of 18.

Larry 11:34

We look good. We got two things to break down here. Are you finished with your question? Because I’ll try to break down both of those two statutes.

Aracely 11:41

Yes, yes, go ahead.

Larry 11:42

Okay, so with what you the first one, the 18 USC 373 confuses people all the time, even legal professionals. I’ve had this discussion with attorneys, and it takes them some time to get it. When you solicit a person to commit a crime, it has to be a crime if that person commits it. And you’re thinking, well, that sounds nutty. If I solicit a minor to engage in sex with me, for example, in my state, it’s legal to have sex with a minor as long as they’re above the age of consent, which is 16. So I can solicit minors all day long to have sex as long as they’re above the age of 16. So there would be no prosecution available against a minor. It must be a crime that the person who’s being solicited it would be criminal for them. If it’s not a crime for minors to have sex, they can never be subject to prosecution. They would be at most a victim in this. Now, what’s going through your mind right now. In a sting, there is no minor and that is absolutely true. There absolutely is not a minor. There’s a whole group of detectives working in that chat sting operation. But the statutory interpretation treats them as if they are minors because they’re posing as such, and the statutes have allowed them to pose as minors. So under the legal interpretation, they are, in fact, minors even though they’re adults. So therefore, the minor can’t be prosecuted, because the minors were the victim of that crime. So on answer number one, you can’t prosecute a victim. No one answer number two on the US Code section 2422. That is, it’s in fact illegal to solicit someone for a sex who’s under the age of 18. Federally, not necessarily state, but federally. So if you go online and do that, federally it’s against the law, even though it wouldn’t be against the law if you did it in the state of New Mexico. It would be against the law federally. But when you’re making that solicitation, law enforcement is saying we didn’t solicit anybody. They solicited us and we just presented the opportunity. So it’d be equivalent. Their argument would be if you go into a local library, and you go into library, (you would make the argument well, I didn’t go to the library for sex), but if you go into a library and you have and solicit sex, it’s no longer the library. It’s sexual activity. And sting operations are completely legal if the law enforcement doesn’t make the overture and begin the discussion about criminality. If I go to a local strip for people hanging out to hustle, and there may be five legitimate hustlers there. And there may be one sting operation nearby. If I’m looking to pick up on an adult, and one of those adults happens to be a police officer, they have not interrupt me because I’m out cruising, trying to pick up. When I pull up to the detective and say, what are you doing this evening? I’d like to hook up. And they say, Yep, I do this for a living. Are you willing to pay because this is how I make my living. You’re getting into a gray area. They generally like to person offer to pay first. But when these men show up for meetings with minors, police win the case because even they have morphed into adults, the person has shown that they are willing and predisposed to have a sexual encounter with a minor. That’s how they win.

Aracely 15:30

Oh, but did they really show or did the police officers just make it look that way? Because was it the intention? So we know that it was not law enforcement intention to have them have sex with a minor, right? But was it the intention of law enforcement to target men on adult sites or apps that adults use for sexual purposes? To get those men to have sexual conversations with someone online who claimed to be a minor?

Larry 16:00

Oh, it’s exactly what you said. They go into the sting operations knowing that they’re going to find vulnerable, lovely, hormonal, men–all the above. They’re going to find these people, and they’re going to be able to succeed in their agenda. You’re absolutely right. I wish it didn’t happen. But it’s a form of grooming by law enforcement. I would have to see the chat logs. I don’t do a lot of federal defense cases. I’ve been a consultant on a handful of cases. So I haven’t seen many of these chat logs. But the chat logs I’ve seen have been very compelling and damning against the accused. It has been obvious to me. And in fact, I sat on a grand jury for three months last year–January, February, March. And we indicted a number of these cases as well. And I did have some trepidation on a couple of them. But most of the cases, it was clear that in my mind that the probable cause existed, because the accused had taken the bait. They had decided that they were suddenly willing to have these romantic encounters even though they didn’t start out that way. So that’s like saying if you go to a place not intended to do something, you can form the requisite intent. In fact, the grand jury judge instructed us that way. The intent formulation of intent can occur relatively quickly. So even though they didn’t enter the chat room with the intention of soliciting a minor, they were able to form the requisite intent in very short order, and that’s how they win.

Aracely 17:31

Okay, so I get the part, you know, that they showed intention or made it look like there was intention? I think we agree that it was the intention of law enforcement to make the men provide sexual conversation to someone claiming to be a minor online. Someone they met online, who then claimed to be a minor. And it was their intention to get the man to show up to meet this person. We agree that it was law enforcement intention to do that. Okay, is it illegal to provide a sexual conversation to someone online who has claimed to be a minor, and then show up to meet that person?

Larry 18:15

Not sure I completely follow the question, Is it illegal to provide a sexual conversation with someone online who is claimed to be a minor and then show up to meet that person. If you only show up to meet the person, and you absolutely disavow any desire to have sex, if all the chat logs were to reveal that I’m coming to meet you to try to protect you. You shouldn’t be here, somebody’s going to hurt you. And I’m worried about you. And I absolutely will not have sex with you. But I am going to try to save you from vultures and predators that may be on this platform. I don’t believe that that person would be convicted.

Aracely 18:53

Actually, they have been. I’ve seen it.

Larry 18:55

I haven’t seen that, but I don’t have enough experience in the federal system. But I saw one on To Catch a Predator who said that he tried to lay that foundation by saying that I’m really not interested in having sex. I’m worried about you. But then he showed up with the condoms and all the other stuff, and booze and everything that the minor told him to show up with. So he ended up taking a plea, I think I recall that. But yes, this is a disaster.

Aracely 19:24

One important thing that I hadn’t thought about before that I need to bring up is the fact that we know now, too, that law enforcement, and these vigilante groups, can and have altered these chats. They can delete parts of that. And that’s something that the courts have not considered. Most of these cases have not gotten experts (Larry: Is that a question. Because I can answer that.) to see the way it’s presented, because it can be tampered with. And we know some of them have been most often they will omit parts. Do you understand what I’m saying?

Larry 20:07

Yes. There’s two ways to alter. There would be omission, or there would be actual deletion and deliberate manipulation of the chat history. I have heard of that. I’ve not been on a case where I’ve actually seen it. But I’ve heard that alleged. And that is a legitimate defense if they’re hiding the ball from you–

Aracely 20:30

–a lot of them don’t. I’m sorry–

Larry 20:34

–if they’re hiding the ball, in the process, that’s one of the most issues you would raise in pretrial. You have not been provided complete discovery. And there’s relevant and missing discovery that’s pertinent that would tend to cast doubt on the accused mental culpability of what was happening. Those are serious accusations if someone does that.

Aracely 21:00

Yeah. And I mean, and we have seen the proof of that. And it’s too bad that we didn’t find out about this until talking to other people about this. We figured this out, and we figured out it’s a common thing that happens. We’ve seen it several times. But most guys, I think they’re just so embarrassed when they get caught, that they’re not paying attention to those details. They’re just embarrassed, and they’ve been humiliated. They’re not looking at that and they don’t catch it. So who knows how many times that has happened. And those men were convicted when they shouldn’t have been. And it’s very infuriating to see that that has happened, and they’ve gotten away with it. But anyway, I got off a little, I got off topic a little there. I want to go back to us code 2422. So my understanding of this is that it is illegal for someone to use the internet to solicit someone for sex with a minor, solicit a minor for sex that you met online. Based on US Code 373. All that needs to be proven is that someone encouraged them to commit the crime. Now, I am not focused on the crime of statutory rape, I am focused on the crime of soliciting a minor because isn’t it true that soliciting a minor online itself is a crime and that law enforcement did solicit the men to commit that crime by inducing the conversation to be about sex with a minor?

Larry 22:43

It’s a relatively novel argument that you’re trying to make. I doubt you’ve gotten a lot of interest from attorneys when you’ve made this suggestion to them. Because law enforcement continues to maintain that demand opened the door. The men went down the path that they just simply were there. And the men did this. Law enforcement clearly use their vastly superior intellectual skills to manipulate the situation and play on raging hormones of the adult, and they use their training to make the adult feel okay—that’s what was happening. You get no dispute from me about that. Law enforcement is looking for a problem that doesn’t exist very much, in my opinion. There are not many minors out there looking for sex with adults. They may be looking for drugs, and booze, and money. But not the average. The average minor, the average teenager does not find people who are 40 to50 years old to be very sexually appealing. And because there’s so much knowledge out there about the penalties with soliciting a minor, there are very few adults soliciting minors for sex. I just don’t see the evidence that is happening.

Aracely 24:00

So you are saying that it’s not that they that law enforcement is not soliciting someone to commit the Federal offense of soliciting a minor online US Code 2422?

Larry 24:18

I’m saying that I have not seen compelling evidence that they were soliciting and say, hey, you know, I got this minor I think I can hook you up with them. That would be unlawful. But if you’re in a chat room posing as a minor, and you move from an adult to a minor, and somehow there is an invitation for sex from the person itself. Now if the minor says I have to propose the minor says I want to have sex with you. That is a solicitation. But the minor is still the victim. The minor can make the solicitation. The minor can solicit an adult to have sex, but the minor can’t be prosecuted. Because the minor would still be the minor and still the victim.

Aracely 25:01

Yes. So the way I’m looking at this is the law is very clear on if you encouraged a crime, then you solicit to them for that. It makes sense to me that the minor would not be held accountable for demanding sex from a, an adult online, because they are a minor. However, in these cases, it’s not a real minor. It’s really an adult who is pretending to be a minor who is demanding sex from a random adult stranger online that they met on an adult sex website. I guess I’m trying to figure out how, why or how this does not apply to them because the crime itself was committed not only that they encouraged the man to commit the crime, they pushed for him to commit the crime, and in many cases, they forced the crime to be committed. And the crime is not the rape of a minor, it’s the soliciting a minor by forcing the conversation to be about sex with a minor and forcing the meeting to be about sex with a minor, they force for that crime to be committed. Do you understand what I’m saying when I say that?

Larry 26:14

Oh, I do. Indeed, I do. Indeed, I follow your logic. And it’s not totally without a rational basis. It’s just the statutory scheme doesn’t support you on that. That’s why I said, I don’t think you’ve gotten a lot of attorneys interested in your defense strategy. They would have looked at you with the most bizarre expression saying this is not going to work. Now, I love going to trial. Although I haven’t been a part of a trial team in at least two, maybe three years, I love going to trial. And if you can find someone if your organization who is willing to roll the dice and put forward this defense that you’ve not created, but that you’ve designed in your head, I would be supportive of doing it. But just make sure the person knows that if they get convicted because that defense doesn’t work, they are looking at an even longer period of incarceration. I’m all in favor of doing it. I just don’t have a great amount of optimism.

Aracely 27:10

Yeah, and that’s the thing. We haven’t tried it yet. Like I just, came up with this and had that aha moment about it just a week or two ago. That’s why I’m doing this now. So it’s not something that has been tried before in a court. I asked one lawyer about it. He usually answers my questions, and he hasn’t responded, which is interesting. So I don’t know if he’s really thinking about it, or looking into it, or maybe he thinks I’m crazy. I don’t know. But he hasn’t responded. And he’ll tell me like, no, this does not apply, or this doesn’t work because of this or that. He hasn’t responded at all. And I emailed him, like two maybe three times. So I’m waiting to see.Um, let’s see. So another

Larry 28:02

trap to trap my defenses for you’re now.

Aracely 28:06

Okay. Well, can I get in right quick, though, I want the issue of, you know, the why somebody should have just stopped the conversation. I think that’s part of my entrapment defense, isn’t it? Oh, I wanted to point out first is, I mean, I know most people would say and realistically soliciting a minor online. In reality, is it a crime of violence or not? Well, was there a real act of violence committed? Well, no, not really. But it was more like that there was intention supposedly to commit an act of violence. But our system does treat it as a crime of violence. And because the federal government has a minimum mandatory sentence of 10 years in prison, and even up to life, and then there’s, you know, the registry and all types of strict restrictions. So it is treated as a crime of violence, or equivalent, or sometimes even worse, because sometimes the sentences for soliciting a minor online is worse than it is for someone who actually raped a minor or had consensual sex with a minor. So I don’t understand why it would not be a crime of violence. And if it is, then it should fall under, you know, US Code 373–somebody solicits solicited someone to commit a crime of violence. And again, you said you don’t disagree with that. But I guess it’s something we’re going to have to try and court right. Or if we can find a lawyer who’s willing to take that

Larry 29:44

What most prosecutions for the actual sexual activity would not be under federal law because the Feds would not have the jurisdiction to do that. They can get you for the travel. They can get you for the solicitation, but most of the time, the actual sex–there’s not going to be any actual sex because there’s no actual minor. But traveling with the intent of engaging in sex is a federal law. But it’s not a it’s not a crime of violence in the true sense of how the federal statutory scheme defines under 18, US Code, subsection 16, the term crime of violence means an offense that has an element to use the attempted use or threatened use of physical force against a person or property of another. A consensual sexual encounter would not fit under the definition and then under be any other offense that is a felony. And by its nature involves a substantial risk that the physical force against a person or property of another may be used during the committing offense, again, consensual sex, this will not qualify as a crime of violence. But you are correct. We treat the solicitation people who engage in internet offenses, it tickles me, and that’s southern colloquial term tickles as humorous to me that people think that if we just had sex offender registries that treated the noncontact offenders as lightly as they deserve to be treated, they’re just wrong about that. Oftentimes, the noncontact offenders are treated more harshly. They’re evaluated as more dangerous. And they’re sentenced more harshly. And they will find themselves without being able to get off the registry, because when they file their petitions where that’s allowed, the state comes in argues with all these imaginary things that they might have done. But in the sense of the US Code, this is actually not a crime of violence.

Aracely 31:36

I’ve heard people that work in the government say that these guys are actually more dangerous than someone who did commit the actual act of having sex with a minor. So it’s treated as that or worse.

Andy 31:54

Okay, are we going to the entrapment defense part?

Aracely 31:57

Yes. So on the entrapment defense. I’m trying to understand. For the most part, these cases are not allowed to the entrapment defense, but to us, it’s crystal clear that this is entrapment. We still don’t get why they keep saying it’s not entrapment. Well, I think, if I’m understanding correctly, I think it’s because they’re putting the focus on just the right of a minor, where the man solicited to rape the minor. Well, they can say no, because it was not their intention to truly have the men rape a minor. However, the men were not just solicited to rape a minor, they were solicited to commit at least two crimes that, first of all, they were solicited to commit the crime of soliciting a minor online, where the men were induced to provide sexual conversation before they were able to meet. And the answer to me is clearly yes. They were induced, and for an entrapment, all you have to do is show that they were enticed, induced, or coerced, and not even all three. And then it’s entrapment. It’s clear that they were induced to provide conversation about sex with a minor when they were not there to do that to begin with.

Andy 33:10

What do you have to say to that, Larry?

Larry 33:14

Well, I’ve covered the entrapment defense a little bit already. There’s only a minimal showing that needs to be made by the law enforcement that the person had inclinations to commit criminality. The fact that they just happened to be there and happen to be the police, that’s not what she’s saying. I totally get that. She’s saying that the police were there, and in the chat room, and they move the man of the direction that they would not have gotten by inducements and by what she termed as a solicitation. If you really believe that, then you must put that forward as a defense rather than pleading out. You have to notify the prosecution that you have an intent to insert in an entrapment defense, you’re taking it to trial. And you must ask the court to instruct the jury accordingly. And they will read that statutory definition in Texas in case and her case, and her son’s case, they would read that to the jury at the time before they retire for deliberations. And they would tell them, if you find these elements of entrapment, if you find these elements of entrapment, then you shall return a verdict of not guilty. Most people never get that far. I can tell you from the three months I was on the grand jury. Remember folks, in a grand jury, we don’t find guilt or innocence. I didn’t have any to do with that. I had only established about a probable cause which is much lower threshold. And it only took eight of the 12 of us to find probable cause. But in three months we must have heard hundreds of cases. I heard no sympathy from liberal Bernalillo County Albuquerque from a single juror about these types of things. They were not interested in hearing entrapment. They were not interested in considering what is being put forth here. They were ready to lock these men up and indict them. I mean, some of the indictments came down within minutes after law enforcement stopped with their presentation. We retired for deliberation, and it took one to two minutes to return an indictment. These things just don’t work. So if you get the judge to grant an entrapment defense if you have the requisite elements to show that there is a credible argument for entrapment, the juries. Just. Don’t. Buy it.

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Andy 36:21

So I just want to ask real quick. You don’t just go into the courtroom and then go, oh, by the way, we’re doing this. You have to get pre-approval to assert this kind of defense.

Larry 36:35

Can’t speak for Texas, but I’m assuming it’s very similar. We don’t do ambush litigation in the United States. So the duty is to continuously disclose. So you disclose witnesses, like an insanity defense. Certain defenses must be notified. You must place the state or the prosecution on notice that you’re going to raise these defenses because they need an opportunity to prepare to have rebuttal witnesses or whatnot because they might not have called two witnesses to testify. If they didn’t know that you were going to put forth entrapment defense. So therefore they need to know that so that they can be prepared to rebut you on why it was an entrapment. So yes, you don’t just come in one day and go to trial and do it all by ambush. These things happen in advance.

Aracely 37:25

So we were straight out told that the entrapment defense was not allowed for these cases. And of course, I know people in different states that have faced these cases as well. And they were told the same thing. And it just doesn’t make sense. Yeah, it has to be, I guess, very specific. You need to show why it was entrapment. But I think the problem has been that it’s because they are putting all the focus on No, they were not in trap to rape a minor. I get that. They can say that under the law, even though technically there would have never been an attempt to rape of a minor had they not created it themselves. I think the focus needs to be on that they induce the conversation to be about sex with a minor. And that’s what has not been happening. I think it would make a difference. If the defense lawyers start putting the focus on that, because if the men are good, for example, in my son’s case, he was not when once they brought up that they were 13 or 14. The first thing he said, well, you shouldn’t be looking for your dates on here. And then he was just making conversation. He was not talking about sex. They kept putting those ideas out there. He was talking about going to the mall. Maybe that’s not smart, either. He was a 22 Naive guy, you know, he’s socially challenged. But that’s not illegal. Had they allowed him to do that? And just say, okay, yeah, let’s just meet at the mall or whatever. There was nothing illegal about that. The problem is they don’t allow them to do that. Or they could have stopped the conversation and said, Okay, he’s not one of these guys. The problem is that they forced the conversation to be about sex, they kept giving clues, and supposedly they’re not supposed to bring up sex first. Well, first, they brought up sex to begin with by posting an ad on an adult sex website. As a woman who was looking for men for sexual purposes, casual encounters, no strings attached. That means casual sex. But he wasn’t making the conversation about sex. And they did. And then they would not agree to me. They kept rewarding him. They were guiding the conversation to sex, and he’d give them a little bit and they would reward him for that. And then he’d give them a little bit more and it was like yes, okay, we can meet now. By doing that they forced the conversation to be about sex with the minor and they forced the meeting to be about sex with a minor. They forced the crime of solicitation of a minor to be committed. And that’s the problem I have with this. And I don’t understand why that’s not entrapment or how that’s not entrapment to ice. To me it’s clear, that’s entrapment. I guess it’s because they’re not looking at it that way. Is that what the problem is?

Larry 40:20

Again, I don’t know the specifics about entrapment defense in Texas, I would imagine it would have been something that could have been assertive asserted. The lawyer probably, in professional opinion, said it’s not going to work. And this and we’re going to end up not even having probation as an offer. If you force a full trial, rather than pleading out and taking responsibility, you’re not going to get a probated outcome. And with a first-time offender, what we’re trying to do is figure out a way to resolve the case as they go home, and they don’t go to prison. That’s what we’re looking to do.

Aracely 40:53

So Larry, would this be different for vigilante groups than it is to police? Because no, police have certain protections and stuff. But what about vigilante groups? Could they be prosecuted for soliciting someone to commit a crime?

Larry 41:09

I believe that it would be potentially, depending on what is that and how far they go, that they could be prosecuted for several things. But again, prosecutors are elected. You said you’re from West Texas. Can you imagine a district attorney saying, well, I’ll tell you what I’ll do. I’m getting sick and tired of these people who are trying to clean up and keep our kids safe, that are doing this volunteer work. And if they step one foot over the line, they don’t find themselves in front of a judge facing prison time here, do you think that they would likely be reelected to be the district attorney or the prosecuting attorney for that jurisdiction if they took that posture?

Aracely 41:48

Yeah, it’s a hard hill to climb like that stuff. But because they make it about, you know, just the fact that they made it about, you know, sex and children to begin with, but what I’m trying to get, I’m trying to reverse that and show that they are the ones who sexualized kids to begin with and went around forcing that on others. And that’s not acceptable. Like I find that to be disturbing behavior. But people don’t see that because they put out the narrative about this when they got out in the media, and say that these men were targeting kids online, they straight out lie about it. And of course, that’s what’s in people’s heads. And they think, oh, I don’t want them, you know, coming after my babies online. Well, if your baby’s not on Craigslist, casual encounters, you know, seeking men for sex and demanding sex from these strangers, this, that would never be a problem, you know, what you need to worry about is those that are targeting your children on Facebook, and so forth. So the point I want to make is that they did not prove I think our legal system has gotten it wrong. By saying that they prove that the men had intentions to rape a minor or have sex with a minor. What they proved was that police can talk men on adult hookup sites or sex forums into saying that they agree to sex with a minor, they did prove that. And they can do that by, you know, molding the conversation into what they need it to be, and even forcing them to say they agree, because the men goal is just to meet this person, like they’ve been on there talking to different people. There’s a lot of bots on there, a lot of them are fake, and they’re just trying to get your credit card number. And I don’t know what finally they get a real person that they’re chatting with. They want to know more about this. And it’s like, this is a weird, unusual situation. I’ve never seen this before, because I’ve talked and then that’s that they use Craigslist for years. One of them said he had been using it for 10 years, and had never, ever seen a minor on there. Never even heard about minors using, you know, this website to meet men. And if there were minors on there, nobody knew it because they weren’t telling people on there that they were minors, and that that would be more normal, you know, if a minor was really on there. So no law enforcement did not prove that the men were predisposed or had intentions to really have sex with a minor. All they proved was that they could make the men say that they agreed to it. And then they rewarded them with okay, we get to meet now. But it doesn’t show whether the men really would have done it or not. So they have that part wrong. And we know that it can be done because of false confessions. We know that police can make people say things that police want them to say whether it’s real or not. And I think that’s what’s happening here. Police are making them say things because then they’re rewarding them what something they get rewarded with the meeting to find out more about this extremely unusual situation that nobody had ever seen before.

Larry 45:04

So we’re going to need to kind of compress some of the remainder so that we can get to the other segment. But you’re correct on all those things. But they don’t need to prove it when the person agrees to a plea because they are consenting to the elements of their crime by virtue of their guilty, or no contest plea, that the requisite elements were there. The person who goes to trial has a whole lot more rights because they can force the police to show that there was a solicitation and generally, an attempt to engage in sex with a play. That’s not necessary if you’re stipulating to those elements when you enter your guilty plea.

Aracely 45:48

So is this violating constitutional rights?

Larry 45:53

How so when you choose to plead guilty? What right? I mean, you’ve been apprised of what the elements are by your attorney. You’ve been provided a charging indictment or an information as it’s called, with the with owner about this date, you did this, and you’ve had a legal professional tell you what the elements are or that would need to be proven. If you choose to go to trial, they admonished you at the police setting about all the rights that you’re relinquishing. They go through a list of all this stuff, and you realize you’re forfeiting this right to cross examine. You’re, you’re giving up this right and this right, and this right, you remember that? You remember all those things they did. And they hold up the plea agreement generally say this, is this your signature? Did you sign this? Did you do this under any threat or coercion? Do you remember that process that took place? That is when the person pleads guilty there, they’re consenting that the elements could have been met had there been a trial.

Aracely 46:48

So personally, I think knowing, since we know that police can make people say, things that police want them to know, that are not real or not. If there’s no other evidence, I don’t think we could trust the evidence that simply police create it, whether it’s a confession, or in this case, they created the conversation. If there’s no other evidence that, you know, they would have been looking for minors, online or anywhere else. I just as I think it’s just not valid, it’s not credible. I mean, there’s just too many wrongful convictions based on police forcing people to say things that aren’t real. That’s a whole other, you know, side of this, but on the constitutional rights, so this is not illegal search and seizure, because they had no they had no reason no probable cause to begin with, they created it.

Larry 47:54

I don’t agree with you on that. Because when the when the chat was unfolding with the pretend-to-be minor, that created the probable cause, depending on what was said. Remember, I haven’t seen the chat logs. But when these things happen, it is more than adequate, probable cause as far as the courts are concerned, to go search the person’s computer, seize their computer, and search their dwelling and look for evidence of criminality. So there would have been more than adequate probable cause. But again, if you don’t think there’s probable cause, you have your attorney go full bore against the state, and you say we’re going to file a motion to suppress. You can file motions to suppress statements that were made, you can file motions to suppress the warrant, saying it was invalid, all those tools are available to you. But when you use those tools, you’re not going to get a plea offer. Because when you force the state to do a whole bunch of work, they’re not going to make you a good deal. That’s just the way our system works in this country. It’s set up as a system of pleas. And this is the way your case your son’s case unfolded, I think by plea agreement, and he got ended up getting a probated sentence, correct. He didn’t go to trial, right. Is that a trial? He forced him to prove beyond reasonable doubt that he that he that he committed this crime. They call witnesses against him, and he forced the state to put on their case in chief against him. Was that correct?

Aracely 49:25

Yes. But it was not an honest trial. Yes, because the way this works is they hide a lot of the important facts and evidence like it was not made clear. It’s like, oh, this was a this was a site where you had to be 18 Plus. That was not specified. This is an adult website that people use for that. It’s not expected to find minors on here. They posted an ad that didn’t even specify that. The first post is as a woman. The post said we are women looking for men. That part was not covered. So little things like that makes a difference to juries. And that’s how they’ve been going away with this because they made it seem like this was the same thing as just coming across someone on Facebook or Instagram. It’s not the same thing. There’s a huge difference. And I think that’s what the problem has been–we’re just now getting to the part where people are finally understanding. These are adult hookup sites that are used for sexual purposes. It’s not the same thing as your kids being, you know, on a video game platform, and so forth.

Larry 50:31

Do you want to have a part two segment that we could do, either to play at a later time because I really want to get to the Stephen May case and we’re long on time.

Aracely 50:43

Yeah, I was going to wrap it up. Can I say my last piece that I want to do? (Okay) So lastly, as a woman, I just want to say I find it to be incredibly disturbing that a grown man, like the police officer who conducted the sting operation that my son was trapped in, he’s supposed to be a protector. I find it to be incredibly disturbing that he came up with the idea of pretending to be a 13-year-old virgin girl, who wanted to use an adult sex website to find random adult male strangers to demand sex from those random strangers, because that is what he did. Simply because this 13-year-old girl was just bored and curious about sex. It’s not even that he thought of it. It’s his actions. He went around forcing this on other men and on my 22-year-old son. And then he pretended like it was those other men having these kinds of thoughts about 13-year-old virgin girls, not him, even though it’s clear and obvious. These were his own thoughts. He was projecting that onto others. I just find it to be incredibly disturbing for somebody to be doing that. And I find it to be disturbing for people to support and even defend this very sick, twisted behavior from him and others who are doing this. They’re sexualizing kids for self-serving purposes. And then they go around and force that on others for more self-serving purposes. And there’s just nothing heroic about that. It is just sick. It’s twisted. And it’s disgusting. I don’t get that. And I don’t understand how prosecutors can stand by that and do that. They’re defending that. And they’re enabling that. And that’s just wrong. That’s my piece on that.

Larry 52:37

I agree with practically everything you said there in that closing statement. It’s a tragedy that these things were happening. They were spending so much money on these things. Again, you’ve not heard all the podcasts, but I have harped about this for a long time. As long as there’s funding for these things, they will happen. We must reduce the funding. And that has been difficult to do because the hype about the crime, particular this type of crime, how dangerous it is. But if we want to curtail the reach of law enforcement, we must curtail the very lifeblood, which was their funding.

Aracely 53:15

Okay, I’m all for that.

Andy 53:20

Very good. Aracely, thank you very much for joining us. And putting all of that together. There’s two or three times more that we don’t really have time to get into because we have the other stuff that we need to cover tonight, too. So thank you very much for all that you put into this. And thank you for coming on and being wonderful and flexible and all that. Thank you so much.

Larry 53:39

We could do a part two with the part we didn’t cover. We could bring that back as another segment at another time. So I’m not saying it’s not worthy. But yeah, we could do a part two, but I wanted to get to Stephen May case. All right. Well, then let’s pick up where we left.

Andy 53:55

Have a great night. (Thank you. You too.) All right, Larry. So do you need to take a breather a potty break anything like that?

Larry 54:12

No, let’s do this case. Let’s see how fast you can talk.

Andy 54:17

Oh, I can talk fast. You want to discuss the case of Stephen May versus David Shin. And Larry, I checked FYP archives. I checked Registry Matters and boy o boy. Like I need toes to count how many times we have covered this. Is this another one that you can’t let go of?

Larry 54:36

Correct. I cannot let this case go because it’s a travesty of justice.

Andy 54:41

What is the question presented for the Supreme Court to decide here?

Larry 54:46

If they were to grant the petition for cert? The question is whether a judgment rendered after a habeas petition or has been unconditionally released with no collateral consequences and where the state does not dispute that the Petitioner was no longer quote in custody pursuant to the United States Code 28. United States Code subsection 2254 is void for lack of subject matter jurisdiction. In other words, did the court loses jurisdiction by granting habeas relief and ordering Steven May’s immediate relief, that’s the argument being made to the Supreme Court.

Andy 55:20

And what do you people think about this argument?

Larry 55:24

It’s a novel argument for sure but I’m not convinced that it’s a compelling argument. If you dissect the argument, May is asserting that since the habeas court granted his immediate release, that the state of Arizona lost its ability to appeal because the discharge from custody extinguished the “in custody” requirement of federal habeas. His argument is that because he was released, the state has no opportunity to appeal Judge Wake to the Ninth Circuit and that Judge Wake’s decision is final. That’s what he’s cobbled together.

Andy 55:56

So if you will grant me this, I’ll set this up. United States District Judge Neil Wake granted habeas relief based on the burden-shifting of the Arizona child molestation statute. Judge Wake found that Arizona’s law violated May’s due process rights. Judge Wake also found May’s trial counsel was ineffective, thus that infectiveness provided cause and prejudice to overcome the procedural default of failing to object to that issue at trial. Judge Wake found “Counsel’s performance was deficient where it should have been obvious that the burden-shifting scheme presented a serious constitutional question that could have been dispositive” for Petitioner May.

Larry 56:38

He also found that there were “no reasons, tactical or other, for failing to preserve the federal constitutional claim.” That was powerful to me.

Andy 56:48

And I think I’ve got this straight. So the lifetime federal judge declared Arizona child molestion statute unconstitutional and ordered Stephen’s immediate release.

Larry 56:59

You’re correct. So why do you even bother having me?

Andy 57:02

Well, you know, so then what happened after that?

Larry 57:06

Arizona appealed of course. It’s noted in the cert petition that the State did not avail itself of the automatic stay or seek a further stay. Instead, the Attorney General’s office directed the Arizona Department of Corrections (“ADC’) to release May from its custody the following day after Judge Wake’s decision.

Andy 57:28

Did the appeal process proceed to conclusion?

Larry 57:33

It did. The Ninth Circuit originally affirmed Judge Wake, then on reconsideration, they chose to reverse Judge Wake. Now after completion of the appellate process, May is arguing that the process was null and void because he was no longer in custody.

Andy 57:47

Explain the in-custody requirement of federal habeas law, please?

Larry 57:52

Sure. To use federal habeas as a vehicle to seek release or modification of a sentence, one has to be in some form of custody. And that’s the requirement of habeas statute. But the definition of in-custody is broad enough to include supervision and, in some instances, unsupervised probation. But the person must be in under some form of restraint or control. May now asserts that the court’s jurisdiction terminated because he was released basically unconditional by Judge Wake’s order finding the Arizona statute unconstitutional, and the state did not seek a state, so he said that, that his he’s not he was told are in custody. So all this litigation that happened subsequent his release is null and void.

Andy 58:39

So if I’m following this right, I see that on page 17. It says “Petitioner walked out of prison a free man; he was not subject to any supervision from ADC or the State of Arizona. He was not subject to the order of a state court or supervision by the District Court. After serving 10 years in custody, Petitioner was unconditionally released.” You said that the Ninth Circuit originally affirmed Judge Wake. What happened? How did they reverse course?

Larry 59:08

Well, good question. Good question. The State moved for panel rehearing. A full year later on March 27, 2020, the divided panel reversed itself, without explaining what facts or law it had overlooked or misconstrued. According to May’s petition on page 19, “Rather than seriously consider trial counsel’s actual thought process, and the matters counsel did not consider, which were developed in the record, the majority hypothesized a series of reasons why a lawyer could have thought that sticking with the current trial record and jury would better serve May’s interests than would a new trial.” I’m unable to explain why that happened. And what had happened was that the jury had deadlocked, and the judge had released the jury, and then the jury asked, well, maybe on second thought maybe we’d like to keep deliberating. And the judge quickly asked, counsel, do you mind if the jury convenience and trial counsel said, no, I don’t mind. And May’s counsel said, no, we don’t mind. And then they ultimately, upon reconvening, convicted him, and I’m at a loss to explain why that happened.

Andy 1:00:23

Okay. The dissent stated the panel’s original decision affirming habeas relief “was correct then” and “correct now…” Do you agree?

Larry 1:00:35

I do indeed agree. With the dissenting judge on the panel on the panel.

Andy 1:00:42

Now you stated earlier that this latest petition for search theory–I only know how to say it as a cert. Can you say the full word please?

Larry 1:00:50

No, I forgot how to pronounce it.

Andy 1:00:53

Alright, grant cert is novel and creative. I thought Stephen had a dream team of lawyers all along. How do they overlook this novel argument for so long? It would seem that they should have contested all litigation after Judge Wake ordered his release.

Larry 1:01:10

I agree. I agree. The petition states, “on February 9, 2022, less than one year after the mandate issued, new counsel—who was not part of Petitioner’s original defense team—recognized that the federal courts had lost subject-matter jurisdiction when Petitioner [May] was released from state custody without any collateral consequences pursuant to the District Court’s unconditional habeas grant.” That’s what they’re arguing.

Andy 1:01:39

And I noted that on page 21, the petition states, “counsel filed a Motion to Recall the Mandate based on lack of subject-matter jurisdiction. Did NARSOL support that effort?

Larry 1:01:52

We had provided significant support to Mays case. All throughout it. Unfortunately, we did not have much faith in that particular approach. So we didn’t join with that. Not because he’s definitely has been and is being screwed, but we didn’t see motion to recall the mandate as being a viable thing that was likely to happen.

Andy 1:02:13

So to dig into that–the legal team for NARSOL you probably just dissect the whole thing, word for word. And you figure out the pieces that you want to file the motion with, or the brief, what’s the term?

Larry 1:02:29

We pick what we can afford to spend our limited resources on. This was not a case that would have lent itself to any fee recovery where we’re doing it because it’s the right thing to do. This is a significant thing, when the accused has to prove a significant element of the offense, which under that statute as it existed at the time, the accused had to prove that they didn’t have a sexual motivation for the touching if the man was a lifeguard, and he was touching minors, at the pool, theoretically, to save their lives. That’s the way I understand it.

Andy 1:03:01

But we have to do that in a non-touching capacity, Larry.

Larry 1:03:05

So we looked at it. And we couldn’t find any case law that was compelling enough on a recall of a mandate with the jurisdictional claims that they were making their novel, but we couldn’t find any indication. And we consulted with a distinguished law professional, we just couldn’t find that. So therefore, we said we’re out. But that doesn’t change the fact that this is a miscarriage of justice.

Andy 1:03:28

And the motion was denied on June 10, 2022, in a four- sentence published order which stated that “‘motions that assert a judgment is void because of a jurisdictional defect generally’ must show that ‘the court that rendered judgment lacked even an arguable basis for jurisdiction…” What happens next?

Larry 1:03:51

Well, the Supreme Court has this new cert petition before them, and they will decide whether to grant or deny the petition. My hunch is that it will be denied. And the tragedy of this injustice will continue to be a 75-year sentence, which for all practical purposes is a life sentence for Stephen, and the statute was unconstitutional at the time. His attorney failed miserably to raise that as an issue. His attorney failed miserably. Well, I’m going to back a little bit about that in terms of letting the jury reconstitute itself. That was a really fast-moving situation where that might have been some viable reason to say I’d rather a hung jury. Keep deliberating. Maybe I’ll get it. I’ll get a mistrial here. You’re going to get the mistrial anyway, so maybe I’ll get an acquittal here. If they keep deliberating. But certainly he ought to have raised the constitutional claim. This injustice is sad. But the attorneys created it, and the law limits what can be done in habeas relief, and we need to revisit the Anti-terrorism and Effective Death Penalty Act that was passed. That’s really going to be the solution. Give him another bite at the apple under different rules, and not the rules are the way they are now. And nothing’s going to change.

Andy 1:05:12

Wow. All right. And I mean, just we’ve talked about this a number of times, so maybe 2000, or something petitions for cert hit the Supreme Court and they grant less than 100. So out of this ends up in the pile with the other a couple of grand of them, for them to somehow see this as being something that they want to undertake and correct or wrong. So that doesn’t sound like very good odds is what I’m trying to paint the picture of.

Larry 1:05:41

No, that’s a little low. The number of cert petitions is usually between 8,000 and 9,000 per year, and I’m sorry, 80 to 90 granted, so you’ve got about a 1% chance of having a reversal granted. And with those low odds, what would need to happen here is there would have to be a plethora of interest from other states. I can assure you that there’s not a single attorney general out there that serves any state in this country that wants the US Supreme Court to grant cert on this. So therefore, there won’t be that plethora of friends of the court brief. Remember that? Through this podcast we’ve talked about there was one issue where there was like a group of attorneys general that put in a dozen or more amicus briefs. He’s not going to have that level of support. The Supreme Court is not likely to see this as something earth shattering. Now, that doesn’t mean that you can’t get to the requisite four because it takes four to be interested that there’s something of significant public importance. To me. The burden shifting of an unconstitutional statute is of great public importance. But that’s not the issue before the court. The issue before the court now, is whether or not subject matter jurisdiction was lost when they released Stephen May. Although the petition contains all the nuances of the case, that is not before them now. Before them now is did the habeas court loses jurisdiction, or did they not? If you take that to its logical conclusion, Stephen has now argued that he would have preferred not to have been released, when Judge Wake found in his favor. He would have preferred to have sat in prison while all the appeals were taking place. I don’t think that we really want that to be the outcome that no judge could ever release a personal from custody, or they’re going to forfeit jurisdiction.

Andy 1:07:49

I gotcha. Yeah. And have you invented that time machine that lets you go back and undo a decision that you made some time in the past? Yes. All right, well, then maybe Mr. Miyagi, can use that and help it out. That’s really crappy. Someone in chat said so he got 75 years for, like, touching kids as a lifeguard in the course of doing the duty of being a lifeguard.

Larry 1:08:19

Yes, because they claimed that even though he was alleging that he was doing his job, that there was a sexual motivation, and he was sexualizing these minors by where he was touching them and how he was touching them. That’s their allegation. And Arizona is a tough state. He went to trial, he got convicted, and he got a very lengthy sentence.

Andy 1:08:44

The follow up in chat says even if there is quote unquote, unacceptable touching in a public place–75 years?

Larry 1:08:53

It’s amazing. 75 years for touching. Can you imagine if he’d actually done something?

Andy 1:08:59

I have wondered what if somehow pushed the envelope and gone to the next stages, where would they go? I mean, do you bury the person under the jail? Do you take them to the nearest ocean and given them concrete shoes?

Larry 1:09:15

Well, I mean, I’m minimizing it a little bit I mean, for this is a family program, but there were apparently some allegations of some significant touching, but still, no matter what was done–75 years? We don’t need people in prison for 75 years very often. We just don’t.

Andy 1:09:33

So that’s a long, long, long, long, long, long, long time. Very good, sir. Thank you for all your efforts as always. And we got two new patrons. Aracely, our guest tonight, became one of our new patrons. And then we had another person join. I sent you a question from that person.

Larry 1:09:52

Did she come in at 1400 per month?

Andy 1:09:55

Slightly less than that it was close. And then we had an annual set up by a person named Dustin. So thank you so very much for becoming patrons. I really appreciate it. Is there anything else you want to go over before we get out of here?

Larry 1:10:11

Not anything in this episode, but I’m looking forward to next week. What do you have in store? You don’t know yet, do you?

Andy 1:10:18

I have no idea what we’re going to do next week. It will be next week. Okay. I hope you have a wonderful night. So go find all the information that you need to either at registrym.co or fypeducation.org. You can find all the stuff that you need to find. And I hope that you and all the people in internet land have a wonderful, fantastic evening, and I’ll talk to you soon.

Larry 1:10:45

Good night. Bye.

Announcer 1:10:51

You’ve been listening to F.Y.P.

Listen to RM254: Clueless in Missouri: Unclear Law Keeps PFRs On Registry
https://www.registrymatters.co/podcast/rm253-chemical-castration-doesnt-work-but-earns-politicians-votes/

Download the transcript here
https://fypeducation.org/wp-content/uploads/2023/02/RM-253-Final-Print-Copy.pdf

Announcer 00:00

Registry Matters is an independent production. The opinions and ideas here are that of the host and do not reflect the opinions of any other organization. If you have problems with these thoughts F.Y.P.

Andy 00:18

Recording live from FYP Studios, east and west, transmitting across the internet. This is episode 253 of Registry Matters. Good evening. Happy Saturday night to you, sir.

Larry 00:29

Well, happy Saturday night to you, thank you people, somebody forgot to correct the notes. It says 250.

Andy 00:37

I noticed that as well. And so now it is now corrected. But I was able to self-edit and make it all go through because that’s the level of professionalism that I bring to this program.

Larry 00:48

That is correct. This is a brilliant, brilliant podcast, well, the highest quality team that could ever be assembled.

Andy 00:57

I think that that’s pretty close. I don’t think there’s anybody that can compete with you for this job.

Larry 01:03

Well, I appreciate that.

Andy 01:05

Make sure that you everyone head over to the YouTube place and make sure you click the like and the subscribe button and get notified and you know all those things to do to help Google know that you liked this content and to share it across all the land. And with that said, Hey, what are we doing tonight?

Larry 01:23

A little bit of this and a little bit of that.

Andy 01:26

All right, then well, I guess we’ll dive right in. Hmm.

Larry 01:29

So well, we’ve got a question from a patron. And then we’ve got a big meaty event that’s going to take hours and hours, we’re going to be talking about a legislative proposal that’s captivated the nation and originates in the state of New Mexico. And it deals with PFRs and chemical castration.

Andy 01:51

Really, chemical castration. Is that a thing?

Larry 01:56

That is a thing that’s sweeping the land?

Andy 01:59

Oh, my God. All right. Let’s see here. So I guess we’ll dive right into this question that was presented from Dustin. Dustin says, I timed out for Megan’s Law last year in Pennsylvania, but I had to have a passport with the marking on it for international Megan’s Law. Does anyone happen to know if there is a process to get a new passport without the marking? Could be an interesting topic. I’ve emailed the dhsintermeganslaw@ice.dhs.gov twice now in the last month with no response. Curious if there’s anyone out there who has successfully done this. I might have to just report lost and hope a new one comes without a marker. Let me know what you think.

Andy 02:25

That’s an interesting strategy. I lost my passport, though, I think that you may end up with one with the with the marker on it again.

Larry 02:59

This is such a great question. And unlike political junkies, particularly once they’re elected to office, they will pretend that they know the answer, even though they don’t. And they will invent stuff to hear themselves ramble. I’ll tell you upfront, I don’t know the answer. But I’ll tell you some things that might happen here. But I truly don’t know the answer. And I don’t know that anyone else does. That’s why you haven’t received a response from the DHS plus the two that I have.

Andy 03:32

That’s it. He’s just screwed?

Larry 03:37

Well, there are some questions we don’t know an answer to. If you literally interpret the law as it was written, there is no sunset that I can see that would provide that you would no longer have that marking, just because your registration time ended, because your registration time varies from state to state. And this marking is a federal requirement. So looking facial at the law, I don’t see a provision that would alter the fact that you have a marking just because you’ve timed out the registry. That doesn’t change the fact that you have one of those target offenses that the notice says that the person has been convicted of one of those. The language is broad, but it basically describes the target offense against a minor. So what would that change if you got off the registry? I don’t think so. You still are convicted of that offense. Right?

Andy 04:31

Yeah. I mean, cuz it’s just stating that there’s a conviction not that you’re on the registry. Is that correct?

Larry 04:39

That is correct. Which leads me to say that you wouldn’t necessarily get an unmarked passport. But having said that, I have been told by people who’ve put far more energy into this than I’ve been able to put into it, because I don’t travel internationally. So it’s not a high priority. I’ve been told that their research has revealed that only people who are actually registered get the marking. So that raises a brand-new question. If you’ve already been marked and you’re in their data system as a marked passport, would they be doing new research if you applied for, for a new passport, for example, if your passport had to be renewed or if you lost it–people do, I’ve been told, lose passports periodically. Would they go with the existing marking? Or would they do the brand-new research to see if you’re actively currently registered? I don’t know the answer to that either. And I don’t think anyone else does.

Andy 05:45

So presumably, since I have been removed from the registry, that I could get my passport and not have it marked.

Larry 05:53

People who have done more research than I’ve done have said that they’ve been able to independently verify that, but I don’t know that I want to go out that far in the limb. Because whether or not you’ve gotten off the registry, you were originally–if you were ever registered– you were in the NCIC system as a registrant. And that doesn’t go away is my understanding. It just goes to a lower level of, it’s not an act of notification, it’s kind of like a warrant. It’s been executed and you’ve been served and detained and released. That record of the warrant is still in NCIC. It is just not an actively outstanding war. But it’s an inactive warrant. I understand that the registration history is the same. So if they’re pulling from NCIC, I’m really confused. One thing I’ve gotten pushback from, as I’ve told the people over and over again, there’s a process called freedom of information requests. And one thing you can do is submit one of those and ask them for their protocols and their procedures and their policies. You can ask those things in a FOIA request, as it’s known. Why is it that those requests don’t get submitted by people? Perhaps they don’t know how to compose the request. Perhaps they don’t know how to locate where to send it to. But that’s the way we can find out possibly some of these things by doing a FOIA saying, how do you determine who gets a marked passport. Just be aware, when you do that, depending on where that request ends up, it may trigger a whole bunch of rattling of the furniture. And people may say, well, we haven’t even thought of that. You may create I have problems.

Andy 07:36

I’ve been considering taking the slow route, not trying to emergency rush anything but getting a passport, just in case I want to try to venture off the coast someplace. I would be petrified to give it a shot. If I didn’t have an easy way back, I’m not going to like try to go to some super exotic faraway, 12 hour plane ride thing, but maybe just start traveling down into the Caribbean or something like that, to see how things go and follow what registered travel action group says as far as examples, like they say, we can go to Barbados, I would be a fan of going into the go into Barbados. So I might try to pull that one off at some point in time in the halfway near future.

Larry 08:21

Well, if the passport is lost, and this person has lost their passport it certainly would be worthwhile to apply for a new one if one anticipates traveling. And we will find out, and that would be helpful to the audience to find out. We would have a real live test result. We would have someone who had timed out and someone who either got a new marked passport, or an unmarked passport. This would be very useful information. But in terms of doing a segment, I’d love to do a segment, but who would we invite on that would tell us the answer? I don’t know who we would invite.

Andy 09:01

I’m with you. I think we’ve tried to invite the particular Registered Travel Action Group guy and he made some kind of unrealistic demands or something like that. I don’t remember, but it was a long time ago.

Larry 09:15

I don’t remember the particulars, but he does tend to want to give advice that I’m very uncomfortable with. I never want to advise anyone openly to disregard any obligation because the penalties can be significant. I don’t tell people to try to escape the requirements. I just tell people, please don’t invent requirements that are not there. If it’s not specifically there, and you can read it in black and white, please don’t go out and invent imaginary requirements. But I suggest that people abide by what’s clearly specified that you need to do if it says you shall provide these identifiers, even though I disagree with them. I tell people provide them. I tell people to provide everything that’s required by law. Just don’t impose additional requirements on yourself. Because you have a wild imagination.

Andy 10:11

Absolutely. Shall we move along, sir?

Larry 10:15

I think I’ve done the best I can do unless you have any more questions about this. But truthfully, we don’t know.

Andy 10:22

I got nothing else on this one. But so if we gotta roll, if we’re gonna roll into this main event here, we’re going to cover this New Mexico thing that has the whole internet abuzz, and it’s this New Mexico bill that would require chemical castration for our PFR type people. And the bill is House Bill 128 in New Mexico, which requires chemical castration of those convicted of, of sexual offences against a minor. And I thought you liberal do gooders don’t invent or don’t enact any such draconian laws? And so what’s up with that? And do you have any idea like, what’s the chance of this thing making it through there? [None.] So that is your official position on it?

Larry 11:16

As it’s currently drafted, that is my official position. That bill has absolutely zero chance of passing away as drafted.

Andy 11:27

I have been told by other people before, Larry, that maybe you come across as a little bit arrogant. How can you be quite so confident about this one?

Larry 11:38

Well, because I know our legislative process here. I know the key people who will be making the decisions in terms of how this bill moves or doesn’t move. I know plenty of things that are constitutionally informed about it. But let me just go back to where I had originally put the question. Where it says offenses against a minor. I need to correct that. That is not what the bill says. There’s no specification or just people commit crimes against a minor. So it’s anybody who commits within a universal specified sex offenses before we move on.

Andy 12:14

So the one that you provided a PDF with that list I have for the screen. Is that an accurate list?

Larry 12:22

The list of sexual offense? Let me go look at what you have up on the screen. Okay, now, just to make sure. Now, that’s just that’s just a list of our serious violent offenses that you have there. Okay.

Andy 12:35

All right. So then that’s nothing I will redact from the universe of things. Well, do me a favor, Larry, can you give me the name, address, telephone number, shoe size where they go shopping? Who are those key people?

Larry 12:53

Well, I’d prefer to say that I’m not able to give the names. But I can tell you I have deep and long-standing relationships with many lawmakers in Santa Fe. And they generally like and trust me.

Andy 13:10

Wait, who likes and trusts you? Maybe they trust you? But they like you? Actually, who would like you?

Larry 13:19

Well, it’s difficult to conceive, isn’t it? [laughter] But a lot of people in the legislature and the analyst and staffers like me, and that is strange.

Andy 13:32

I think so. In pre-show chat you indicated this bill is likely to make its way across the country. How many states in some form or fashion have enabled something akin to chemical castration?

Larry 13:46

I didn’t do the research, but the communications director in NARSOL Sandy did it. We think it’s around eight.

Andy 13:54

Good grief. All right. Before we go any further, I have a roughly almost 90 second video clip that was broadcast on KRQE 13 in Albuquerque. You indicated that are several misstatements in the video, and can we discuss those after I play the video?

Larry 14:13

Sounds good.

Announcer 14:17

House bill 128 would give convicted sex offenders the option to get chemical castration if they want to be released from prison early. The state lawmaker behind the bill hopes it stops them from striking again.

Representative Lord 14:29

There’s no cure for pedophiles. There is no treatment plan, and 44.3% of them will reoffend and that’s a very high number.

Announcer 14:38

Republicans Stefani Lord and John Block have introduced HB 128, which would include Depo Provera injections as a condition for their parole. The hormone shots reduced sex drive by lowering testosterone and increase estrogen. The injections must begin within one month of release and continue through their parole. It only applies to sex offenders released early, not those who served their whole prison term. Nine states have similar laws with Alabama being the most recent. Representative Lord says a study out of Oregon shows the treatment drastically reduces sex crime, recidivism.

Representative Lord 15:14

The groups of people who got the Depo Provera shots in a five year follow up did not reoffend. And the people that did not get this chemical castration, the Depo Provera shots, 60% of them re-offended. And it was sex crimes.

Announcer 15:32

If a sex offender intentionally stops the treatment, they would be guilty of a fourth-degree felony. You can read more about this story on our website.

Andy 15:41

Oh, so you have issues from the very beginning. That KQRE account. It’s really hard to say those letters together. KRQE says that the person will be able to get out of prison early if they agreed to this treatment. Is that not true?

Larry 16:01

It’s a blatant falsehood. There’s no getting out of prison early in New Mexico. Our system is almost identical to the federal system. And that is an offender serves their entire sentence less good time, before they can be released. Good time can be as little as 15% or as much as 50%. Depending on the offense, a serious violent offense is only eligible for 15% meritorious good release time. There’s a list that describes what a serious violent offense is.

Andy 16:27

Ah, I see. I see. Okay, and then. So let’s figure out why KRQE in particular, would they present it that way? If the bill does not exactly actually provide for early release?

Larry 16:40

Well, you’d probably need to propose the question to KRQE Media. If I would have to guess, my guess is they don’t know. Or it’s intentional to get more ratings.

Andy 16:52

Wait a minute, not ratings. Really? There you go again. Why do You People have to make excuses for to justify false reporting? And how wouldn’t they know that. I mean, the bill is like, what, two and a half pages? And it doesn’t mention anything about early release? So where did they come up with that poppycock?

Larry 17:13

I’m not really making excuses. I’m simply stating the fact they either don’t know, or they’re doing it intentionally. What is your solution to false reporting? Do you want the big bad government to move in and regulate the content that a for-profit entity’s allowed to put on the air? I’m really confused. Those on the right criticize social media platforms for trying to weed out false content from their sites. And now you’re suggesting that the big bad government shouldn’t be in the content regulation business. You people are too much.

Andy 17:48

You have issues with some of the other statements as well. Can you elaborate please on what’s up with that?

Larry 17:55

Well, Sandy and I both agreed that the representatives Lord and Block, the sponsors of the bill, seem to understand the legislation either. And Lord said, quote, “since pedophiles are eligible for early release into Mexico, for that privilege, they will need to agree to chemical castration as a condition of their parole. If they don’t agree to these terms, they can stay in prison away from society and do their entire sentence.” Her error, aside from being incorrect and inflammatory usage of the word pedophiles is just totally incorrect because they already served their entire selves. They’re not eligible for early release. This will end up holding them beyond the completion of their sentence, which already happens. So what you do here is you get your 15% of a serious violent offense. All sexual offenses are not serious, violent offenses. You get 50% off. You get 30 days per month, you for good time. So your sentence if it’s 10 years and you get 50% good time, no forfeitures. It’s a five-year sentence. You’ve exhausted the five years and its totality the 10 years by serving five, you’re then deemed parole eligible, but you’ve earned it because your sentence is exhausted. Then the parole board comes in and hands you a list of conditions including where you can live and all the things you have to do for your parole period. But you’ve served your prison sentence already. In its entirety. It’s not like an indeterminate period like Georgia and Texas where they give you two to 20. And after a period of time, you’re eligible to be released and you’ll serve the remainder that prison sentence on parole. So they’re just factually wrong. It’s just not the way it works here. Then representative Block said quote, “with clear science and support from the experts in favor of chemical castration of pedophiles. This is the most common-sense legislation to ensure the threat of these criminals is dramatically reduced.” As I have recently noted, there’s very little support from science and experts most support the opposite. And this is just, this is just inflammatory either deliberately, or because these people are ignorant.

Andy 20:18

As they said in the clip, Representative Lord stated that 44 and a third of the ones attracted to the young ones will reoffend. And that number for recidivism is like, that’s,10 times higher than anything that I’ve seen. And do you plan to challenge that assertion? Do you? Are you going to go march into her office and be like, hey, get your shit straight.

Larry 20:46

Not particular. Don’t plan spend a lot of time and be present a lot in Block’s office. But it’s interesting that if they were really focusing on the word that they use the loosely, that they would have narrowly tailored this legislation. This applies to a full universe of sexual offences. Regardless of whether there was anybody that would fit in that category, or if it starts with an internet or computer moment.

Andy 21:15

Oh go on. Please continue.

Larry 21:20

They just, they just don’t know what they’re talking about, or they’re being misleading. This would get the 20-year-old college student, because we have a four year protection plan here on our law. So a 20-year-old college student who has sexual activity of a consensual nature with a 16 year old is just five days shy of being 16. And he’s two years away two days above his 20th birthday, there was a seven total of seven days, outside that for your protection zone, he would be required to do this. But that was be a totally normal behavior, to have consensual sex with a consenting party. I don’t understand how it is that Representative Lord and Representative Block can’t understand this. But they never seem to narrowly tailor anything. They just go with a broad brush, because this was handed to them by the advocates for the victims who want to have their problem problems secured by legislation. And this thing is going to roll around the country like wildfire. And this is just junk. It really is. And it has zero chance of passing as it’s written right now. And I don’t intend to focus on this recidivism because I’m not a big fan. I don’t have that obsession with it. But I could try, and I’ll say it’s wrong. But I’ll move on quickly off of that, because you can’t win the argument. You just can’t.

Andy 22:55

Because it’s more than zero.

Larry 22:58

That is correct.

Andy 23:00

Um, do you think this argument would work with the people on that side of the aisle with that particular representative? Which argument? The talking about the recidivism rate, and all like all of these enhancements to those coming out of prison? So do you think that that should work with conservatives?

Larry 23:21

It should, but it won’t.

Andy 23:25

Okay, um, can you tell me tell me what kind of arguments you would use against this whole thing?

Larry 23:30

So what are my brilliant arguments that I have in mind? [Yes, please.] So with these particular lawmakers–Block is brand new. And it’s too early to tell what he’s amenable to, to be receptive. But he’s already told us enough by what he did by carrying a piece of junk like this without reaching out to anybody. It tells us already that he’s not a very deep thinker. He’s a follower. And that’s a dangerous thing in this business that he is. And I’ve already had experienced enough through the time that Stefani has been in the house to know that you’re not gonna get anywhere. It’s just not a productive use of your time. But my brilliant arguments? There are several which are far more compelling than trying to focus on recidivism. First, there’ll be an enormous cost to the state for additional incarceration that this will apply to. What they’re going to do is say it has to start a month before you released. They’re going to add this to the list of things you must do to be paroled, and you will not be able to do it because you ain’t got no money. You know, ain’t got. How’s that for good grammar? Our transcriptionist is going to love that since he’s an English teacher. Ain’t got no money. And they’re going to be sitting there trying to demonstrate the alternate, which isn’t spelled out what the alternate was, it’s not fully spelled out. But we’re already holding people beyond their release date because we don’t approve of their address that they would like to live it. So we’ve got numerous issue that are going to drive up costs. Now that should be a persuasive argument to conservatives. But unfortunately, it isn’t. When it comes to crime, magically, they throw their conservative principles out the window. And as I stated earlier, in the podcast, our system works like the federal system. And it requires that the full sentence be served before the person can be released dead, they must undergo this post prison term of parole, as it really should be called supervised release. And the biggest difference is the Feds when you reach that milestone they release you, then Mexico does not. And I will focus on the identified unquantifiable cost. To begin with, that’s one of the things I’ll focus on.

Andy 25:50

And you think the money side will work with the conservatives?

Larry 25:55

Well, it would if they were intellectually honest, no, it will not. But that doesn’t stop me from doing it. Because it’s the right thing to do. You watch them squirm, and you watch them roll their eyes, and you do that kind of things. But no, it’s not going to work. You can look across the country, Arkansas, Alabama, places like that, when you start making these arguments, they just laugh at you. They roll their eyes, and they go forward, they say it’s the right thing to do to protect the public. And we’ll worry about the cost later. So no, it won’t work. But it’s an enjoyable thing to do. Because it helps you build the opposition. And I’m trying to build opposition. I’m not going to get any opposition on any rational basis with those. Rational is not coming out these two sponsors. So I’m not even targeted them. They’re the last thing on my mind. I’ve tried to build opposition.

Andy 26:41

And you also mentioned in pre-show that you have in your argument to the conservatives, you have another argument for them?

Larry 26:48

Oh, yes, I will remind them that that that they spent nearly three years claiming that the big bad government should not require people to be injected with a vaccine. Of course, the big bad government didn’t require people to be injected, but I will remind them of that. And I’ll ask them to hold true to that position. Government should not require injections. And having said that, there could be a way to do this. And I gotta tell them that you can’t require that. But after I say that, I’ll say there is a way that this could be constitutionally done with the consent of the offender. The state would need to offer a benefit in exchange for the forced treatment. For example, that the offender might actually be released from prison early, or the offender might be diverted at the very beginning, from prison, by agreeing to this sort of, of non-traditional treatment, if they agreed, undergo this, that would be a choice in a free society. But you know, there’ll be another flip flop that they will do. They’ve pontificated for three years that the government shouldn’t tell you what to put in your body, but amazingly we’ll find a whole lot of conservative support for this opposition. I’ll tell you that right now, from 35 years’ experience, all this has got to go down.

Andy 28:04

And so are you suggesting that if those of your demands were met, you would go along with this?

Larry 28:12

I could envision it will take us a significant amount of time more than we have in this session. But I could see that there would be a way that you could design such a program, with a big voluntary with benefits, yes, I would be amenable to go along with a lot of things, if they would actually approach me and say, Hey, we’ve got this novel idea. How can we do this? Constitutionally, what would it take to keep you from being in opposition?

Andy 28:38

But there is a sort of quote unquote “provision: in there that you can refuse it, Larry, you are not required to take it. It just happens to then cause you to have a class four felony is that like murder, or is that like jaywalking?

Larry 28:53

That would be the lowest level felony that we have here. But let’s see, you’ve already earned your release, though. That’s why that’s a meaningless provision. You have already served your time.

Andy 29:06

This is sort of along the lines of the extra punishment of the registry, and not just having some sort of mailing card that you send in but all the extra baggage. So this is on top of that you just completed your 5-10-15 year sentence that you would get to go to the Health Department on a whatever two-week basis to get an injection. This is on top of that you’ve already done your time.

Larry 29:30

That is correct. If you are being allowed to stay in prison. Rather than being granted early release, my opposition level would decline somewhat because I’ve always said to you in our private conversations that if you don’t like the conditions of a true parole when you’re being released early, you can always tell them I don’t like these conditions. You can stuff them, and they have another program for you. It’s called continuation of your sentence. But in this case, you’ve all already served your sentence. You have a second sentence following you like the federal system. And we call it parole. And it’s this named, but it’s identical to what they do in Illinois with what they call mandatory supervised release. And this is a whole different comparison. But if it were truly, if you were depriving a benefit of early release, I would have a lot less opposition.

Andy 30:29

Do you have any other brilliant strategies?

Larry 30:33

I will hammer on the unconstitutionality of the bill as currently drafted. This bill is unconstitutional on several aspects. It’s not constitutional to force people to undergo such a procedure, especially when they receive nothing in return. In addition, the bill proposes to create a new felony offense for failing to undergo the treatment. That cannot be. A condition imposed on a person for their supervision cannot become a new offense in and of itself. At most it would send the person back to prison for the remainder of the previous sentence which in New Mexico could be a very long time because our parole period (supervised release) for PFRs is indeterminate. But they can’t hit you with a new felony for a technical violation. This would be a technical violation. So this is just riddled with problems. I mean, it’s overly broad. It includes all the universe of contact offenses. It does not include offenses like indecent exposure. It does not include electronic solicitation of a minor, because you haven’t actually done the completed act. It doesn’t include video voyeurism, and that does include CP related offenses. But it includes all the universe of contract offenses, and that whole section of our sexual offense statutory scheme.

Announcer 31:54

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Andy 32:42

And New Mexico is not unique and proposing this strategy. You said earlier that we think it’s eight. So a handful of states already have it. I did read the Alabama law. And like it seems almost word for word that you could compare them side by side. And they’re identical. Thank you, Sandy, who does the research stuff at NARSOL. She’s the communications director. And I’m not going to read the list, but it will be available. This is the list that you’re talking about that is not necessarily so accurate. Is that right? Or a different list?

Larry 33:14

It’s the list below where it says list of states.

Andy 33:17

Oh, I see that list. Okay. Oh, yeah, so that’ll be in the show notes and at the end of the transcript for those using our printed copies. According to NARSOL, “It is bad public policy wherever it exists, and for a variety of reasons. The positive benefits are far below what might conceivably justify its usage, and the negative effects are medically serious, being associated with various side effects, including osteoporosis, cardiovascular disease, impaired glucose and lipid metabolism, depression, hot flashes, infertility, and anemia. The vast majority of the population on whom it is coerced and forced, through more acceptable forms of therapy and self-motivation, will not reoffend sexually. The moral and constitutional objections are universal and compelling. From a moral and human rights perspective, the general consensus is that it is barbaric and reminiscent of our nation’s earlier and darker forays into eugenics. As one study puts it, ‘. . . chemical castration under the current laws is vaguely positioned between punishment and treatment due to lack of informed consent by the recipient. . .’”

Larry 34:19

That was sweet what Sandy said in her posting today, and that is beautiful. And we do have the list of states and I’d like to just have an impromptu discussion a little bit about the legislative process here. So people will understand how this is going to go down without giving you a lot of details. So if you have anything else on the on the main body, then we’ll get into the legislative process, which is going to be freeform.

Andy 34:45

Oh, let’s see here. Well, somebody asked what groups publish stats about PFR is having higher recidivism rates like she said. I’m unaware people have looked for these and they can’t find anybody that has any sort of credible things. As far as I know, Larry is going to reel back and go, I don’t care about recidivism.

Larry 35:06

That is what Larry’s gonna say he doesn’t care about.

Andy 35:10

Remind me again, can you give me your 30 second elevator pitch on why you don’t care about recidivism.

Larry 35:16

You’re going down a path, and it’s a distraction and a distortion. Because if you choose to engage in that discussion, you have the discussion on the topics that I just articulated earlier about where I’m going to focus, you go down a rabbit hole that you can’t win, because recidivism does happen. So I tell people just like, if we could learn anything from the guns, rights people, those who advocate for unlimited restrictions on gun ownership, the recidivism rate, and the offense rate is pretty high, with people who misuse guns. Can we agree on that? A lot of people use guns, and they get caught using them over and over again. And they do sure a lot of bad things with guns. But the people who advocate for them will advocate for unlimited gun rights and say that it’s a precious Second Amendment. And they hang their hat on the Constitution. And they seem to be successful. So I tend to like to model my behavior after successful people, not failing people. I mean, I just have this bizarre notion that you should follow success. So, therefore, I’m going to gravitate to the Constitution because it works. And you can go down the fantasy path of arguing recidivism, and you can come up with your binders full of stuff if you want to. I’ve never seen it work. So therefore, I choose not to do it.

Andy 36:50

I’ve had up on the screen for a few minutes, the miscellaneous states, and if it was available, the statute. So there’s California, Florida, Louisiana, Texas, Wisconsin, Iowa, Alabama, and there may be another one in here. This is just roughly what we could put together kind of quickly from the FYP vast array of research staff, staffers, and pages. These would be pages, wouldn’t they? Larry, we have pages.

Larry 37:13

We do? We have the best research staff that has ever been assembled in the history of any podcast or newscast.

Andy 37:26

Yeah, so please, you said you were gonna go into the legislative process. I believe there are some people that are asking questions, and I’ll hold them until we get closer to the end.

Larry 37:35

Sure. Okay. So the legislative process here’s a little bit different than most states. This bill is the House bill, as you can tell by HB that means House bill. That means that it’s originating in the House of Representatives. Since we run a bicameral system, it has to be passed by the Senate as well. And some states double file the same bill. They’ll introduce one on the Senate side. But we don’t do that here. It just clogs the system, and we don’t have enough time. So if something’s not gonna get traction, it’s not going to get traction. This bill I’m hoping that I can wreck early on. I don’t know if I can wreck it as early as I’d like, to wreck it iimmediately. But after a house bill is introduced and also for a Senate Bill, after it has been read twice by title by the Speaker of the House, then it’s assigned to committees. So after the introduction and after the sponsor, has turned it in to the Clerk of the House, and it’s been read twice by title. And the speaker assigns it to committees. In this case, this bill has been assigned to the Health and Human Services Committee. And it’s been assigned to the House Judiciary Committee. It has to clear both of those committees before it ever sees the day in the Senate. Well, my goal is I don’t want I don’t want it to go to the Senate. Now. If it does go to the Senate. I’ll have to deal with the Senate. But when it when it gets to its first committee, which is scheduled for Monday, my goal is I’d like to see this thing die on Monday. And that would be accomplished by tabling motion. Now since we have an overwhelming Democratic legislature here, this is a 10. member committee. It’s 7 to 3. So clearly, the Republicans can’t pass it without some Democrat support. But can we agree with that arithmetic, you’ve got to have a due pass recommendation that has a majority. So we need six of them to get a do pass to keep us moving. So that means at least three members of the Democrat Party have to vote do pass.

Andy 39:42

So far, I’m with you on your math.

Larry 39:45

So far, so good. Well, if it’s five, it doesn’t get out. And if that’s going to happen, as at the end of the presentation, by Representative Florida representative block, there’s couldn’t be the chair of the committee, who’s Liz Thompson, she’s gonna say What’s the pleasure of the Committee. And the Republicans will likely say move do pass. Remember, the Democrat party is going to stay at a booth to table and a tabling motion takes priority over a do pass motion, because the table motion is not debatable. So the substitute motion to table will be made in all likelihood. Now, again, I’m not a member of the House, I’m only a long-term advocate. But that would be the process, a vote and then clerk will call the roll. And if there’s enough people to table, that would be it in this bill for now. And if it if the tabling motion fails, then I’ll proceed back to the do pass motion, which is debatable. Then after further debate, they’ll take a vote to pass it. And if it receives a do pass, then it has to go through some machinations to get to the next committee. It doesn’t just go to the next committee. It has to be reported out of committee by the chair of the Committee on the floor. And it has to be the motion. That do pass motion has to be approved by the body, which is just a routine thing. You know, the committee report is “Mr. Speaker, you are chair of the Health and Human Services Committee Reports. After carefully considering House Bill 128, we recommend it to pass.” And then the committee reports are adopted and it will be referred on over to the Judiciary Committee, which it’s already been assigned to. And then it has to go back and get another hearing. And repeat that process again, which gives me another wrecking attempt in the judiciary. And if it gets out of the Judiciary Committee with a do pass and goes to the floor, then the whole body of the house has to vote on it. If it gets that far, the body will approve it. Very few things were voted down on the floor. Very seldom does something does that happen. But if it makes it to the floor of the house is gonna get passed and all likelihood that’s only one half of this process. Do you have any questions before we move to the other half of the process?

Andy 42:14

No, no, no, I’m with you. I was just telling people in chat that we normally have at least roughly a guideline of what we’re going to say. But you’re doing all of this off the cuff.

Larry 42:24

That is correct. Now when it passes the House on final vote, there are some wrecking procedures that can be utilized. So, for example, if the chair of either committee has not fallen to the legislation, and the members of that committee vote to pass, under our rules, they don’t have to report it out the very next day to the to the floor for adoption of the committee report. They’re allowed to sit on the committee report for three days, as well. But you have a 60 day or 30-day session, which we alternate between. If, for example, some committee chair was not fond of the legislation and held the report up for three days before they reported it out to the floor for adoption. As you can imagine, what can be done on those precious days are ticking away. [Right.] That’s one of the techniques that happens. If a chair of a committee is not happy with the final legislation, they can take their time, up to three days to get it out to the floor for the adoption committee report. So they saw the House votes, we have a 70-member house. So it would require everybody to be present and vote is going to require 36 to pass. So it passes the House, that it goes to be introduced into the Senate. And it gets assigned to brand new committees in a Senate all over again. It is going to be assigned to the Senate Public chair. It used to be Senate Public Affairs now I think it’s called Senate Health and Public Affairs, but it will be assigned to the Senate Public Affairs equivalent committee, and it’s also going to be assigned to the Senate Judiciary Committee. And we get to start the opposition all over again. We get to come forward with our analysis. If we have new data, we do testimony. We got to go through public hearings and the Senate Public Affairs Committee. We get to go through public testimony and the Senate Judiciary Committee. So we’ve got two more wreck attempts to derail the legislation. And if all else fails, and it makes it through those processes, and gets to the Senate for a final vote. You have a slightly better chance in the Senate of killing it, not much but slightly better. The Senators are elected every four years and are not as vulnerable to angry mob mentality. So they can debate things more carefully. They don’t have debate limits of three hours like it’s in the House of Representatives. The Senate could go on and possibly voted down. Not likely, but they could. If it gets that far, they’re likely to approve it and send it to the governor, and the governor would be hard pressed to veto it. Our job and your job, if you want to be an advocate is to make sure you never let things get to the floor. Because they’re going to pass if you let them get on the floor. You got to make sure you do the same on the second half of the process, because if this gets to the governor, the governor has very little political capital to veto something like this. With the notoriety we’re getting around the state, even around the country, not just around the state, it would be politically very unlikely that at governor would veto such legislation. This is an example of what you need to be thinking about when you get mad at Obama for signing the international Megan’s Law. Basically, they don’t get mad at Bush for signing that Adam Walsh Act. But you know, that’s a discussion for another day. They’re all quiet and silent about that. But Bush would have had, he would have been in the same position that Obama was in. It got to him with almost unanimous approval. He was not told there was anything wrong with it. And all the talking heads were saying, Mr. Bush sign. This is great for children. All the victims’ advocate, law enforcement apparatus, and most of law enforcement apparatus, are going to be saying, if this makes it to the governor’s desk, she’s going to be told that she needs to sign this. So our job is to make sure the governor is never given that choice. Because if we wreck the train, the governor can’t sign it.

Andy 46:33

Okay, so I have one super awesome, solid question after I ask you a few of my own. Unless there’s anything else that you would like to do first.

Larry 46:43

I think I’ve pontificated enough about that.

Andy 46:47

I believe so. Alright. So again, this bill is super short, and I have it up on the screen rotating around on whatever, whatever paragraph B would be a person required to undergo chemical castration treatment shall begin treatment not less than one month prior to the person’s release from custody of the Corrections Department. And this is what I want to ask you about the end shall continue receiving treatment until the court determines the treatment is no longer necessary. What would be the determining factor when treatment would end? Like how would you determine what’s the court going to do to determine that treatment is no longer necessary?

Larry 47:21

That is a great question. And it would be like many other things that we have particularly indeterminate period of parole and probation here for PFRs. It’d be one of those things for the courts would be we don’t want this decision making. This is actually a parole condition. So the Administrative Office of the Courts and the judges’ associations, they’re likely to put in opposition to this because they don’t want this job of making this determination. But there no guidance provided. This is one of the many things that’s wrong with this bill. There’s no guidance telling them how they would make such a determination. But it’s there. This is an example of sloppy drafting and careless legislating by two people who really don’t care that much about being good legislators. They care about apparently getting a lot of publicity. They’ve succeeded.

Andy 48:10

And I mean, you dug more into it. You answered a question before I was able to ask it. Is this inexperienced lawmaking? Is this grandstanding? I mean, are they just trying to puff themselves up to get more press than maybe then they deserve by drafting some knee jerk legislation that’s going to get them votes or something?

Larry 48:33

Well, of course, they didn’t draft it. It was handed to them. They agreed to sponsor it. That’s what they do when they get these model bills. It may be any number of sources that they get. It may be from a law enforcement apparatus. It may be from the District Attorney’s Association, or it may be from whoever. But he didn’t draft this. You pointed out how much it looks like Alabama’s, and Alabama’s was handed to them. This is sure some advocacy that wants this to become the law of the land, because it’s going to save people from being re-victimized because of recidivism. But in terms of your question, I don’t know if they’re grandstanding, or they’re stupid, but they’re one or the other.

Andy 49:15

And so, if I recall correctly, there, there’s an advocacy group that’s pushing Marsy’s Law. And so they have something of a cookie cutter that they go through and try to find a state legislator that will sponsor it to try and move it through that local state. And that’s how that has moved around all the different states. Could this be similar that there’s some advocacy groups like the pro-chemical castration lobby or something like that?

Larry 49:44

There’s no doubt there is an advocacy group. I just don’t know yet. It has not manifested itself. We don’t know who’s pushing this. But it’s making its way around the country, and there’s such interest in it. Clearly there’s some background noise that’s driving this, and I don’t know what it is. But I’m hoping we can put the it to sleep this week and put it on the table where it belongs and in the trash heap of history until they want to draft a sensible piece of legislation.

Andy 50:11

And from my side, I’m super interested–perhaps if it worked, then the arguments would change. But if it doesn’t, does that conversation come up at all? Or does that not matter in Larry’s universe?

Larry 50:31

It’ll be mentioned that there’s doubts about its efficacy. But I’m not convinced that’s going to be the strongest argument whether something works or not. We have the registry. Does it work?

Andy 50:46

Well, I know, you can’t prove the negative? Has it stopped somebody from doing something more after they got to the prison? The answer is probably yes, it prevented someone from reoffending in some form or fashion. Like cognitive behavioral therapy, did it make them rethink their processes. Maybe their supervision stuff prevented them from doing it. It would be hard to say that it is completely ineffective and has zero benefit. But, on the other side, does that outweigh the benefits of trashing the Constitution, all of your other freedoms that go along with that.

Larry 51:22

And therefore I’m going to focus my best effort on the Constitution. And particularly I’m going to focus on the unidentified cost of what this would run up. And there’s so many identified costs. This treatment is very expensive. From the limited research I’ve done, it can be hundreds of dollars.

Andy 51:38

And you have to do this every couple of weeks.

Larry 51:43

So it’s a hugely expensive thing. And it would really need to be very narrowly tailored for certain offenses, and for certain offender types, not for the whole universe of sexual offenses. This is just an example of, I’ll say it again, stupidity.

Andy 52:01

Can we dig in there for just a second? If it is super expensive, and somebody that’s employed is doing halfway well, and now has a new car payment level of, quote, unquote, “treatment.” And they are unable to pay, and it puts them into the poorhouse. Does that eventually become something like a debtor’s prison?

Larry 52:24

It does. And it also clogs the courts, because there’s a provision in there that says that there’s a judicial process, which they don’t spell out, to determine indigency. And that would be a time-consuming process as well, that would cost money. The courts really don’t want all these responsibilities. They have jam caseloads already, and they don’t want this job.

Andy 52:46

So I saved the best for last from a familiar person to you and a good friend of mine named Fred asked this question. Ron DeSantis is calling for the death penalty for some PFR type offenses in Florida. He knows that SCOTUS, the Supreme Court ruled that capital punishment can only be used in murder in cases of murder. DeSantis is convinced that will be reversed when challengers to his new law come up. Does Larry think that this is likely to happen with our current conservative majority in the Supreme Court?

Larry 53:19

If he had asked me this five years ago, last administration, I would have said no. But I turned out to be wrong about the sweeping ruling overturning Roe vs. Wade that was far more sweeping than what it really needed to be to address the question. So I would be hesitant to say that anything’s beyond a possibility with this bunch we have up there now. I’m fairly confident with my arrogance about being able to kill this bill. But I’m not. I’m not nearly as confident. I don’t want anything going to the Supreme Court. I really don’t know anything that would benefit the PFR population because I’m not confident that anything good is gonna come from them.

Andy 54:02

Very well. And we, if you want to vamp for 10 seconds while we ask chat if they have any other questions. Let me ask you, what groups publish stats about PFR is having higher recidivism rates like she said? Are you familiar with anybody?

Larry 54:19

I don’t, but that’s a good question for Sandy because she’s the recidivism guru at NARSOL. And she has a wealth of recidivism information, which I put in a circular file when people send that stuff to me.

Andy 54:33

It is fair. So we probably haven’t covered this in such a long time about the Gatling gun on one side of the football field and you put in 97 Blank rounds and three real ones. Are you willing to stand on the other side and get shot at? That’s your 3% recidivism?

Larry 54:48

That’s the analogy I make when you like it. I think it’s fair when you concede that you’re willing to consider an encroachment on the Constitution because of recidivism. Have you shifted the debate to an unwinnable debate? Because you’ve now acquiesced to the notion that if it’s a worthy outcome, it’s worthy of consideration. Have you sold them how much recidivism is too much? No elected official can stand before their voters and say, well, the recidivism is fairly low, and you know, it is a heinous crime and people suffer lifetime ramifications from the crime. It’s not going to happen that often. So if you happen to be one of the ones that happens to you, it’s just too bad. That’s just not a sustainable political position. If you understand politics, therefore, it’s a discussion you do not want to have because you cannot win it. You have to bring the conversation to something that’s more grounded, which is the Constitution. And so I always pivot back to it. If they say, Larry, what about recidivism? I say, well, those numbers are all over the map. But the credible numbers tend to be very low. But that’s not the issue here. The issue here is, we can’t punish people in this manner, we cannot force people to be castrated medically. We just can’t do that in a constitutional fashion. We just can’t do that. We could possibly figure out a way to do it voluntarily. But we cannot impose that as part of the punishment. So let’s focus on the real issue here. You get away from that recidivism in a hurry. But I guarantee you there’s not too many people with a three to 5% recidivism argument that would allow me to shoot 100 bullets at them with only three of them being active and 97 being blank. You would not allow me to fire that at you. And that’s what you’re asking the public to do. Well, recidivism is not that bad. Says it’s only 3%. Go ahead. You just can’t win that debate. Keep having it if you like, but you won’t win it. But if that’s what you feel compelled to do, go ahead and do it.

Andy 56:59

Oh, so would you like to formally invite Stefani Lord as a guest on the podcast to debate this?

Larry 57:09

I don’t think I would like to do that.

Andy 57:14

All right, we are just a handful of seconds shy of an hour. Anything else do? Do you want to shut it down and call it quits? Anything else you want to do? Before we get out?

Larry 57:25

I actually think that we’d had a great program. And what should the title be? It’s should be a simple title because there’s nothing competing for a title.

Andy 57:32

That’s true. That’s true. Very true. You know, so just to fill that out the weekly program called On the Media. We are structured similar to them. They’ve been on the air for 20 years. So we can’t say they were modeled after us, where they have a feature segment and then they have a bunch of other news stories that they cover in their side of their hour. So I mean, then they come up with a single title, Stefan, get on that one title, not confusing titles. Right?

Larry 58:00

That’s correct. And Stefan, if you can’t handle it, you just let us know.

Andy 58:06

All right, so you can find all of the show notes over at registry matters.co. Phone number is 747-227-4477. I know I say that stuff really fast, but I’ve said it like 200 times–you can find it and replay it, slow it down and all that stuff. But everything you need is at registrymatters.co and fypeducation.org. Oh, before we go, we have one particular supporter who constantly does support us. And thank you so very much, Justin. You are a very generous individual. And I thank you very much. And to all of our patrons. Thank you so very much. Happy New Year. I hope you have a prosperous and happy year. And thank you for all the support that you guys and gals give us and continue to. So thank you.

Larry 58:56

Yes, we’re getting a new print subscriber. You passed it on to me this this afternoon, and I’m going to fire up the subscription right away because I have great confidence that we will be compensated once I send the bill.

Andy 59:11

Very good. Perfect. Well, everyone, have a great night and have a great rest of your weekend. Stay warm, dry and whatever that is like some arctic blast coming your way or some rain or something. I hope you are a comfy person this weekend, and we will talk to you in a week. Have a great night, Larry.

Larry 59:29

Sounds good. See you next week.

Announcer 59:39

You’ve been listening to F.Y.P.

List of States

California and Florida are cited as being states that mandate its use. The language in California law, Section 645 (1996) states that with a victim under thirteen, the injections “may” be requested by an offender after the first offense, and that after a second like offense, he “shall undergo” the treatment.

Florida’s statute 794.0235 (1997) likewise says it may be requested after a first conviction of any form of sexual battery (794.011) and “shall” be used after a second offense. Unlike California, Florida does not attach an age limit to the prerequisite.

Louisiana’s law (14:43.6) reads very similar to that of Florida with the exception of specifying a victim age of less than thirteen.

501.061, Texas Penal Code, allows the procedure upon request after the 2nd offense of a child under fourteen and has a laundry list of conditions that must be met by anyone requesting it. According to information from Texas Voices, it is virtually never used.

Wisconsin’s NARSOL state contact reports that while statute 302.11(1)(b)2 states it may be a requirement of the DOC or Parole under certain circumstances, DOC says the controversial treatment is currently offered but never required.

Iowa has language in its laws that allow its usage under certain circumstances, and Georgia and Oregon have allowed the practice in the past if not currently.

Alabama’s requirement is that all those whose victim was a child under 13 receive the very costly treatment as a condition of release after a first offense and that the cost is borne by the offender, making the Alabama law more stringent than any of the others and with the major features of this proposed New Mexico law.

Listen to RM239: Prison Strip Search Policy Curtailed By The Seventh Circuit
https://www.registrymatters.co/podcast/rm239-prison-strip-search-policy-curtailed-by-the-seventh-circuit/

Download the transcript here

Announcer 00:00
Registry Matters as an independent production. The opinions and ideas here are that of the host, and do not reflect the opinions of any other organization. If you have problems with these thoughts, F.Y.P.

Andy 00:18
Recording live from F.Y.P. studios, east and west, transmitting across the internet. This is episode 239 of Registry Matters. Good evening, sir. How are you?

Larry 00:26
Doing awesome. Glad to be back.

Andy 00:30
Outstanding. I just want to make a note, if you notice that the podcast hasn’t come out by Wednesday or Thursday, let me know because sometimes I forget to dot an I and cross a t. So for those of you looking for episode238 from last week, you should have it like right about now. So there you go.

Larry 00:54
Are you telling me that Podcast 238 episode did not come out?

Andy 00:58
It went out. I just forgot to upload the mp3 to the normal podcast channels so that it got distributed out to like iTunes and Google Play and podcast players, so people have it on their drive to work.

Larry 01:15
What are you telling me?– That tens of thousands of people were deprived last week. Is that what you’re telling me?

Andy 01:2322
Basically, yes. But they have it as of now. My phone just downloaded Episode 238. So you should have it now. And if you’re hearing this episode on Tuesday, you got Episode 28 four days ago. So you’re welcome.

Larry 01:37
Okie dokie.

Andy 01:39
Hey, let me ask you a quick question. How are the wedding plans with Miss Hoover going?

Larry 01:45
Well, we’ve paused that for a moment, but I’m thinking we’ll get back on track, probably in the next two or three months.

Andy 01:51
And what is the delay?

Larry 01:55
I’m still negotiating all the things that are required in terms of a woman with her standing in society to make sure that everything’s just right.

Andy 02:04
Is she having you sign a prenup? Or is it you having her sign a prenup?

Larry 02:08
It’s both.

Andy 02:11
I see. Okay, enough of the shenanigans. We will move on. But I do want to make sure to highlight something. You’ve told me before that during a previous administration, when they had victories, they were very humble, and they wouldn’t take quote, unquote victory laps. And I want to make sure that we have a victory lap because an article someone on the discord server posted that in Jacksonville, Florida, they will not be putting up signs. Now as I understand it, Florida has a law it is in statute. If I understand this, right, please correct me if I’m wrong, that the sheriff’s in the local communities can go post signs on PFRs houses. But because of a federal lawsuit, I’m gonna say these in a bunch of the scare quotes “a federal lawsuit that trumps their ability to put up those signs.”

Larry 03:01
That is correct. That would be the lawsuit that was decided in the 11th circuit dealing with Butts County, Georgia, Sheriff. Yours truly designed that lawsuit in terms of what we would be going to attack and what the scope of the challenge would be. And we evaluated the likelihood of success on the merits because these things are expensive to undertake, and there’s quite a bit of money invested that was not a cheap undertaking on our behalf. And this lawsuit now is binding precedent and the 11th circuit. And folks that is a small circuit is Georgia, Florida and Alabama. But it’s persuasive authority throughout the United States. And we hope that there’ll be other litigation around the United States with this being cited as persuasive authority if they’re outside those three states. But this would not have happened, and I had a high-powered attorney after the victory because I said I was kind of surprised that we won as solidly as we did in 11th circuit. And the attorney told me that he wasn’t surprised at all, because it was a slam dunk. And I said, well, that’s strange, because if that was such a slam dunk, why did no one do it until we did it? I’m just curious about that. If it was such an easy low, hanging fruit, why did everyone wring their hands about the signage and say, “wish there could be something done,” but nobody did anything.

Andy 04:31
And I don’t want the trolls saying oh my god, you’re going to come out by doing this, then the legislature is going to come out and make new legislation. And then it will be in statute in Georgia, and you’ve now just raked everyone in Georgia over the coals.

Larry 04:49
There was a person particularly in Clayton County that said that, and he was actually not completely irrational. That is what the legislature would have done, and they actually did have a proposal in Georgia General Assembly to do that. But the breadth of the decision for the 11th circuit pretty much makes it unlikely now because they’re going to have to actually narrowly tailor it. They’re going to have to provide due process for anyone who they impose such a requirement on. So therefore, it’s very unlikely. But you never know, what would if you would never let it get anything if you’re afraid that they’re going to change the law. But they do change the law. There was a premises challenge in North Carolina. It was won, and they went back and made a premises challenge that’s even worse than the one that was struck down. There was a satellite-based monitoring challenge. They went back and created a law that says, well, after 10 years, you can petition to be taken off of it. I mean, I can go on and on. That’s exactly what legislatures will do. But under that theory, we would just never litigate anything, because they would just keep trying, so why not just live with it and accept it?

Andy 05:57
Right? Why would you make waves, Larry? Don’t do that.

Larry 06:01
Well, that’s the rationale from some of our people out there that don’t understand. What North Carolina failed to do, was after they won these lawsuits, they failed to understand the importance of the legislative process and making sure you hold the line in the legislature. If you don’t have powerful influence and good representation of people that understand your issue, if you’re not connected in the legislature, if you take a hands-off approach, then stuff will pass. And they have had that done to them more than once because they don’t seem to gain any traction to speak of in the legislature when something is taken away from them by a change of law.

Andy 06:41
Give me the quick background of your picture for this week. Who is it?

Larry 06:47
That would be Coach Paul Bear Bryant, the late coach from the University of Alabama.

Andy 06:52
I’m going to play the little audio clip because it is about a half a second long. And you can expand on what he has said. I will play it three or four times– “when the game, when the game” and one more “time to win the game.” What’s he saying?

Larry 07:08
They’re trying to win the game.

Andy 07:11
And isn’t that what we’re trying to do is just win the game.

Larry 07:16
That’s exactly what we’re trying to do. That was the reporter was asking him why he made a quarterback change. And the context of that was the narrative on the sideline at halftime, and why did you change quarterback? Did you lose confidence? He says, “I’m trying to win the game. That’s what I’m trying to do.”

Andy 07:30
Just simply that. All right, well then let’s move on. We have some sad news. We’re going to offer some condolences for PFR that was killed in a psychiatric center. And this was just passed along to you a few hours ago by someone. And do you have anything that you want to speak to about this?

Larry 07:49
I didn’t really get into reading the article because it was handed to me really about an hour ago. But anytime a person is killed in a correctional facility, at a psychiatric hospital, any type of place where they’re there against our will, it’s a sad day that we have not been able as a society to protect them. Well, we take your freedom away. I’ll say this emphatically when we take your freedom away, we have the responsibility for your well-being–that includes your health includes your personal safety. And that may cost money, but we have a responsibility. When we don’t let you defend yourself, we have to defend you.

Andy 08:30
This came from Audacy.com. “The murder of a registered sex offender on Tuesday inside of Brooklyn psychiatric facilities under investigation by the New York Police Department Police Department.” They released that on Friday. You can find a link to this in the show notes, should you want to follow up further. To continue moving on–you know what I never asked you. Can you give me the rundown for the night?

Larry 08:54
Yes, we’re going to be doing several questions from listeners. Comments from listeners. And we’ve got three cases. We’ve got a case that’s going to be mind boggling that you gave me a lot of grief about that has no connection to what we’re doing. It has to do with religious freedom. I’ve been hearing you rant about this for three days now since I put it in. We’ve got a case from Illinois having to deal with a person who was conditionally release from civil commitment. And we’ve got a case from Virginia from a guy named Galen who petitioned for civil commitment a second time, and they committed him, and he’s undone that commitment through the state Supreme Court. So we got three decisions. We have to talk really fast.

Andy 09:38
I am up to that challenge. I can blurt out some words at high speed. Well, this first one came in from an email message from Jacob. This is maybe a question for Larry, or do you have a Georgia attorney that might be able to help? I did email this question to Brandon Thomas after hearing him on a past episode of the show. I was charged with distribution of obscene material to a minor in Iowa in 2019 and pled guilty to contributing to the delinquency of a minor in 2020. The original charge would have required a PFR registration in Iowa. But the charge to which I pled, does not. Therefore, I am not a registered PFR. My family is considering relocating to Georgia. Are there any considerations or concerns I should have, given that the material facts of the case and my plea indicate that the behavior involves the sharing of adult- themed images/humor with a minor. if he’s not registered in the other state, my understanding the way that Georgia Works, he wouldn’t have to register in Georgia.

Larry 10:43
That’s not the way it works in Georgia. Georgia could have a scenario where he would have to register even though another state doesn’t require a register, they don’t have that. That’s not the way that statute works. It works in reverse. But here’s what I would say to Jacob. Based on the dates that you put in your communication, it’s likely that you might still be under supervision. Therefore, if you were to have your supervision follow you, the Georgia supervising authorities do have authority in terms of your supervision if you do have supervision to follow you. When you get to Georgia, they have the authority to expand your conditions of supervision. They could supervise you with some stringent conditions that they would apply to people who have sex offense convictions. I don’t believe that they would be allowed to require you to register if you’re coming without that in your conditions from Iowa. But let’s assume he’s completely free of all restraint. If he’s completely free of all restraint, and he comes in not needing to report to anybody. First of all, they wouldn’t know he was there. I mean, would you agree with me that he’s coming in with no probation? That’s what I was thinking. Yeah, there would be nobody to know he was there. So unless he’s going to do like McGuire did in Alabama and continue to call the sheriff’s office and–we’ve had that happen on multiple occasions where they keep calling.

Andy 12:11
There was a guy in North Carolina that called like three times.

Larry 12:15
So if, if you’re determined to be registered, I can just about assure you that eventually an agency will take your registration. So if you can’t take no for an answer, then Jacob you will probably be getting yourself on the Georgia registry. But to the substance of this. It’s a non-registerable offense in Iowa. Contributing to the delinquency of a minor in some states that can be registered registerable if it has a sexual motive, underlying it, and that has to be a factual finding in the record that there’s a sexual component to it. You can contribute to the Lego civil minor by trying to get them intoxicated so that they will they fornicate with you. You can also contribute to delinquency of a minor by asking them to skip school so you can smoked weed with them and have no intention of having sex. So it depends on the underlying facts. But as a general rule, he should be fine. Stay off the telephones. Leave the Georgia authorities alone if you’re not under supervision. And you’ll be fine.

Andy 13:21
All right. Now we have something I would like to almost consider hate mail for you, Larry. Pilot guy, so I’ll leave the name out of the equation. You know who you are. Mister Pilot Guy in Texas says Larry still does not get it. Yes. IM–International Megan’s Law–restricts international travel, period. End of story, many explanation points. If the Oklahoma guy who should have never moved to the “F” state of Florida, wants to travel, he cannot because of Florida. He is not free to just hop on a plane boat or motorcycle boat or motorcycle and travel across the border without the real threat of federal prison on return. How in the bleep– and he bleepedy bleeped and used the F word, is this not a disability? It’s like buying a car in Florida and it was registered there but you take it to Oklahoma. Florida says hey, you have a Florida car, and we are going to keep it on the auto registry. Seriously. A massive hurricane needs to wipe that state out. Regards, The Pilot Guy in Texas.

Larry 14:30
So well, at the risk of running off a patron, I’ll just say he’s just flat out wrong. He’s just flat out wrong. The attorney in the case was the Oklahoma person who went to Florida. Let’s make sure everybody understands. He lived in Florida for seven. I think it was like seven years before the hovercraft caught him. And then contrary to what everyone says, they did not arrest him for having not been registered. They did what Larry has said on the podcast for five years–they give you a notice. If you’ve been dutifully discharged from registration, I have said emphatically that the protocol is to give the person a notice, because if you’ve got a court order, and he had an order from an Oklahoma court, as everyone recalls, that removed him from the registry. So therefore, Florida said, well, we know you’re here now. And you need to register. But the Pilot Guy is just flat out wrong. The attorney did not plead this in the case. They did not make any argument, or anything related to such assertions that he’s making. If you’re not on a registry and registered. Being listed on a website, despite what you think, is not the same as being registered. So the website is an accumulation of interfacing data that the states have put out about people. Being registered is an agency, putting you in the NCIC, the National Crime Information Computer system. And they’ve listed certain things about you. And the agency has an operator reporting identifier, an ORI. And you are registered as a sexual offender. When he left Florida, if they followed their processes, he would have been removed by the registry agency because he’s no longer registered in Florida. When he got to Oklahoma and got the order removing him, that agency that had him registered would have removed him from that from the NCIC. And he would have a below the line, historical fact in the NCIC that he was once registered. But nobody has ever been able to show me a single person who’s been prosecuted, who has been deregistered and is simply listed on a website. And I hate to say this, but it’s just scare tactics. There is nobody to file the report with that you’re traveling. You filed it with your local registration office. He’s not registered in Oklahoma. He doesn’t have anywhere to file that report. It is filed with your local registry agency who transmits it to the marshals who transmits it to Interpol, as I understand it. There’s no one to file that with. And then people will come back, and they’ll say, “Well, Larry, you just don’t understand.” But he can’t because there’s no form online. “And then there’s the marshals, you can file it with them.” No, you can’t. Charles from New York tried to do that very thing. He looked into filing it directly. There’s nowhere to file that travel plan.

Andy 17:45
Wasn’t that form designed for the law enforcement officer or somebody like that to then pass it along. They’re asking the questions to a client sitting at the desk across from them, something like that.

Larry 17:56
Yes. It has that law enforcement agency’s number and everything else on it. That form is not for the individuals. If you want to live your life in terror, thinking that after you’re off the registry, you can’t travel, I can’t help you on that. But it’s an unfounded fear. It just really is.

Andy 18:13
But it is true. That if you are deregistered, and you’re only quote unquote “only a felon,” and you try to go visit Niagara Falls on the Canadian side, they are not letting you in.

Larry 18:27
That is correct, but it has nothing to do with the fact that you are on the registry. It has to do with the fact that you’re a felon.

Andy 18:31
I’m with you. Correct. You’re a felon, and Canada says “no, you can’t be here.” The US did not stop you from traveling. Canada stopped you from entering their nation.

Larry 18:42
Well, but Americans do not accept the fact that they don’t have that right to enter automatically. They are hell bent on believing that because they’re an American, that they can just simply land anywhere and enter at will. But the funny thing is to save Americans don’t offer that service to other nations. They don’t tell you just come you land here. We’ll admit you. We turn away 1000s of people that we don’t admit who show up here. But somehow Americans feel entitled to go anywhere they want. And they don’t respect that another nation might have the same standards that America has. We deem some people undesirable, and we don’t admit them.

Andy 19:21
Those wouldn’t be those S-H-hole countries, would it?

Larry 19:26
Possibly.

Andy 19:28
Well, let’s get on with the cases for the episode because we have about 40 minutes to run through three cases. And I’m gonna have to talk as fast as I possibly can. So the transcriptionist is going to have a blast. And you people put in this case from the United States Court of Appeals for the Seventh Circuit named Rufus West versus Dylan Radtke. You’re going a bit senile this week, Larry, and I think that more than just this week. I’ve read this case thoroughly, thoroughly, thoroughly. I see little connection between our issue that West was litigating and issues. Anyway, his issues related to PFRs tell me that you are not going senile.

Larry 20:09
I can’t tell you that for sure. But I think I’m not.

Andy 20:14
You ask me any other day, and I will totally tell you that you are going senile. He filed this pro se and I know how much you like pro se litigation. We talked about that pretty regularly. Can you admit that sometimes it works. That was another time very recently that it worked that I can think of.

Larry 20:29
Well, I can admit that it does work. But often, more often than not, it doesn’t work, and it establishes bad precedent. Did you overlook the fact that he did have pro bono counsel, appointed by the Seventh Circuit?

Andy 20:42
I did see that. In footnote two, the court said “Nicholas Gowen and Geneva Ramirez of the firm Burke, Warren, MacKay, and Serritella PC accepted the pro bono appointment. They have ably discharged their duties; we thank them for their service to the court and their client.”

Andy 21:04
So Rufus West was confined in Wisconsin’s Green Bay correctional institution where he must undergo strip searches by prison staff on a regular basis. That’s normal in prisons. I gotta tell you, I’ve had my fair share of strip searches.

Larry 21:18
Well, but it’s a little deeper than that. West is a Muslim and strip searches by prison guards of the opposite sex violate the moral tenets of his faith, which prohibit him from exposing his body to a woman who is not his wife.

Andy 21:32
I see. I can’t think that I ever got stripped search by a woman. No, that’s anyway, that’s my own personal experience. So now I get it, though. You have an agenda to show the courts that can rule in favor of prisoners.

Larry 21:45
That’s my agenda. I want to show that a prisoner can occasionally win.

Andy 21:53
And they did with Packingham in a similar religious kind of context. So let me set this up. In July 2016, West was required to submit to a strip search by a guard who is a transgender man, a woman who identifies as a man. West objected on religious grounds but was refused an accommodation, and the transgender guard participated in the strip search as the observing officer. After this incident, West requested an exemption from future cross sex strip searches. The warden denied the request and told West that he would be disciplined if he objected again. So tell us what happened next.

Larry 22:28
Well, West responded with this lawsuit against the warden and various corrections officials. He sought an injunction against cross sex strip searches under the Religious Land Use and Institutional Persons Act of 2000, or abbreviation–RLUIPA. It’s a code in the United States Code at 42, United States Code 2000, blah, blah, blah. It prohibits a prison from substantially burdening an inmate’s religious exercise, unless doing so is the least restrictive means to further a compelling governmental interest. Separately, he asserted a violation of his Fourth Amendment rights to be free from unreasonable searches.

Andy 23:12
And then the District Court dismissed the constitutional claim based on circuit precedent holding that a prisoner has no Fourth Amendment interest against visual inspections of his body. West asked us to reverse this ruling based on Henry vs. Hewlett 969 F.3d, like I can’t read all that, but it did go on BOC which overruled that precedent. Was West correct in his theory?

Larry 23:37
Yes, the religious claim failed on cross motions for summary judgment. The trial judge concluded that West had not shown a substantial burden on his religious exercise because he was subjected only to one cross strip search. And it’s not clear when officers will do it again or if it will happen again. The judge also determined that cross strip searches are permissible in any event, as to the prisons only means to avoid unlawfully discriminating against its transgender employees.

Andy 24:06
And then the Seventh Circuit reversed and noted that Henry vs. Hewlett case revives the Fourth Amendment claim, and West is entitled to judgment in his favor on the RLUIPA. Look, man, if you’re going to make an acronym, can you please make it pronounceable. And how did they come to that conclusion?

Larry 24:29
Well, they stated, I’m just going by the words, they stated “there’s no dispute that his objection to cross sex strip searches as both religious in nature and sincere. The prison has substantially burdened his religious exercise by requiring him to either submit to cross strip searches in violation of his faith or face discipline. The burden is unjustified under the religious strict scrutiny standard” of that statute that’s too difficult to pronounce.

Andy 24:58
And as I read the decision, Larry, the prison put forth a plethora of arguments against accommodating West. They even argued it would violate the Civil Rights Act of 1964 because it would discriminate against transgender employees. And what did the court say then?

Larry 25:13
Well, the court didn’t think too much of that. They said West’s request for exemption from cross-sex strip searches will not violate the anti-discrimination rights of transgender prison employees under the Civil Rights Act of 1964, or the equal protection clause of the 14th Amendment. So accordingly, they remanded for entry of appropriate injunctive relief on their religious claim and further proceedings on the Fourth Amendment claim.

Andy 25:40
I think it’s ironic, though, Larry, that they stated we are guided by the Supreme Court’s decision in Hobby Lobby and Holt, both of which addressed what constitutes a substantial burden on religious exercise. In Hobby Lobby employer sued the Secretary of Health and Human Services under the Religious Freedom Restoration Act, or RFRA. seeking an exemption from a federal law requiring them to provide health insurance coverage for contraceptives in violation of the religious beliefs. Refusing to provide the coverage brought hefty fines of potentially millions of dollars. The Supreme Court held that forcing the employers to choose between considerable financial penalties and providing the coverage and violation of the religious beliefs was a substantial burden on their religious exercise. Did the Hobby Lobby decision weigh heavily in the seventh circuit’s analysis?

Larry 26:26
Oh, it did. Indeed. It absolutely did.

Andy 26:29
Alright, and then before we move on, can we examine his Fourth Amendment claim?

Larry 26:35
Yes, that’s interesting, because based on precedent as it existed when the trial judge ruled, that child judge dismissed his fourth amendment claim at screening, because as the precedent stood at that time, he had failed to state a claim upon which relief can be granted. And she was relying on–I believe it was a female judge–she was relying on King versus McCarthy. But that 2015 decision, which held that a prisoner has no Fourth Amendment privacy interests against visual inspections. But after that, the judgment below the Seventh Circuit overruled King, holding in Henry that the Fourth Amendment protects the right to bodily privacy for convicted prisoners, albeit in a significant limited way, including during visual inspections. So he gets to go back and litigate that dismissed claim now because it was reinstated because the precedent of the circuit has been overturned. So that gives him another bite at the apple.

Andy 27:34
They also stated “the precise contours of the Fourth Amendment claim need not be worked out on this appeal. It is enough to say that Henry has revived West constitutional claim, and he is entitled to develop it on remand.” So West might establish additional precedent in terms of strip searches for prisoners?

Larry 27:53
He very well may indeed. He’s already established these he’s got to religious assertion that the cross-sex searching is problematic in that circuit. But he may have established it beyond the cross sex, that there’s some reasonable expectation of privacy in your body. There may have to be some level of probable cause or something to justify the need to invade your privacy. He may get the opportunity, and he may succeed in setting some minimal standard, rather than just them coming and saying stripped naked, we want to strip you today.

Andy 28:30
It is my understanding that after my time in the wonderful facilities of Georgia that a group of–I am pretty sure it was Muslims because they have facial hair–and they sued, and they got the right to have facial hair, and they just then extended they probably just dropped the whole requirement. Not that if you’re a Muslim, you can have facial hair, they just said you don’t have to shave anymore. So now you have everyone running around looking like ZZ Top.

Larry 28:56
There was a case mentioned. I don’t know if it was from Georgia. In this decision of about 30 pages, I spotted that they had decided that if prisons can allow you to have hair on the top of your head that goes down to the middle of your back that having a half inch, or a one-inch beard did not seem to pose any reasonable security threat. So therefore, they allowed on religious basis people to have their facial hair.

Andy 29:20
And you’ll see in certain states people just have hair down to their halfway down their back and beards out then, and then you have other ones that look like they’re in a military boot camp practically. I think that in a place like in a hot state specifically, that has got to keep down on cooling, but also anything like lice or that nature. If you have less hair, you have less chance of getting those kinds of things.

Larry 29:45
I would agree. It’s also a discipline thing. Prisons are run similar to military boot camp. They want you to understand that they’re in control and that’s part of the process of ordaining you to the control of the prison.

Andy 29:59
But I don’t think that having you strip search is part of the dehumanizing aspect. It is a security thing so that you’re not bringing contraband. Though Abu Ghraib would show you otherwise. People do strip search you and do terrible things to you, when they have that kind of power over you, too.

Larry 30:14
I’ve heard about that.

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Andy 31:05
Alright, well, let’s move along to this case from Illinois. And this is the civil commitment Supreme Court of State of Illinois. Shall we go there?

Larry 31:15
Yes, let’s do it.

Andy 31:18
So this is a case that you people put in named Illinois versus Kastman, which should be interesting. It’s from the state Supreme Court. It says “in 1994, defendant Richard Katsman was found to be a sexually dangerous person and was committed to the guardianship and custody of the Director of the Department of Corrections under the Sexually Dangerous Persons Act. He was granted conditional release and subsequently filed a petition requesting that the director of the Department be compelled to provide financial assistance to cover his treatment costs and living expenses.” Let’s talk about that again really quick. So he sued the Department of Corrections head person that the Department of Corrections should be compelled to provide financial assistance to cover his treatment and cost of living expenses. I’m betting that the state of Illinois was not amused by this.

Larry 32:10
They were not. Rob Jeffries, who is director of corrections intervened and opposed Kastman’s petition. The circuit court of Lake County, despite his opposition, granted the petition and ordered the director to pay a portion of Kastman’s monthly expenses. The Director filed an interlocutory appeal. And you have to admit that this is funny.

Andy 32:34
That is kind of funny. But I do believe that you need to come up with a better way to define the word funny if you think that this is funny for real.

Larry 32:44
If you say so. It’s funny because the Appellate Court affirmed the trial court and the state Supreme Court allowed the Director’s petition for leave to appeal, and then they’ve affirmed both the trial court and the appellate court. Now this is funny.

Andy 33:01
Well, why was he confined at Big Muddy? Is that the actual name of this place or is that the colloquial name?

Larry 33:10
That is the actual name.

Andy 33:12
That is a terrible name for an institution. “Kastman filed several recovery applications seeking his released or for review of his treatment. His most recent application for conditional release was filed in 2013. The application was supported by the evaluation of Dr. Mark Carich, who determined that Kastman appeared to no be dangerous within the confines of an institution. In addition, Dr. Kristopher Clounch evaluated Kastman and support his request for conditional release. Based on the opinion of these two evaluators, the state did not contest Katherine’s application, and the party submitted an agreed order of conditional release, which was approved by the circuit court on January 11, 2016.” So his released was approved. Now he thinks the hardworking taxpayers of Villanova should pay for his treatment and housing. You’ve got to be kidding me?

Larry 34:00
No, I’m not kidding. That was his claim, and he has prevailed. “The conditional release order mandated that Kastman become self-supporting by obtaining employment, at least part time at a job site approved by the parole and probation department, or by performing voluntary public service work at an approved site while receiving Social Security disability benefits. The order also required that he pay all monthly living expenses and comply with parole and probation department in developing a budget. In addition, the order directed that during periods of unemployment that he was to actively seek employment or pursue an approved course of study or vocational training.” But he was unable to afford the treatment and pay for the approved PEFR housing.

Andy 34:48
To move along. “In December of 2020, approximately five years after he was placed on conditional release Kastman filed a motion seeking further modification of that order. In particular, he requested that the circuit court ordered the Director, as his guardian, to provide financial assistance to cover certain of his living expenses and mandated treatment costs. Kastman’s motion asserted that he was unemployed, disabled, and could not afford his $300 monthly treatment costs and the $1,800 monthly rent for housing that complied with SORA.” And I’ve heard it all. Now did Kastman prove his financial status?

Larry 35:25
Yes, he did. “At hearings conducted in February and March of 2021, the court was advised of information to his financial status situation. He had been paying for all of his essential living and treatment expenses for the previous five years but had depleted much of his accumulated funds. So you gotta hand it to him, he must have had a nice accumulation. “As of March 3, 2021, Kastman had approximately $9,000 remaining in his checking account, and a monthly disability income of $1,130.” Now people look at that saying, I wish I could have $9,000. “His monthly expenses necessitated by the conditional release order total $2,912.” This was all proven to the satisfaction of the trial court. “Kastman argued that without financial assistance, he would exhaust all of his savings in approximately five months, and then he could not afford to comply with the terms of that conditional release order.”

Andy 36:17
I mean, like roughly averaging math out there. He’s short 2000 bucks a month. So what did the circuit court do after the hearings in early 2021?

Larry 36:29
Well, as I said, in preshow banter, if you had brought this case to me and said, I would like NARSOL to fund us, I would have said–go ahead and play my favorite left track. That is what I would have played.

Andy 36:40
Play this one. (Laugh track)

Larry 36:48
So I would have, I would have done that if that case had been brought to me as a potential NORSAL action. So I’m confessing I am not always right. But I would have been very sinister about this case, but the circuit court order the director to contribute $2,412 per month toward Kastman’s essential expenses, including rent pay off or treat my utilities and medical payments. The modified order also required Kastman to pay 500 toward his monthly living expenses. I remember he gets $1,130. So they’re taking just shy of 50% for his contribution.

Andy 37:20
And so that only leaves him like 500 bucks a month for him to do groceries, cable, whatever those are, that’s not a lot of money to make ends meet on.

Larry 37:34
Right, not much.

Andy 37:36
The circuit court commented that “one has to look at the big picture and make a determination as to how anyone can move forward from being actually confined at Big Muddy. The circuit court observed, I don’t think it’s incumbent on Kastman draining the money he has in his account until it drains completely. The court also stated, it’s the courts hope that if he goes forward, he will be in a better position to take on more of the responsibilities with regard to pulling his weight financially in the outside placement.” Now, you must admit that this is legislating from the bench. Larry, can you admit that finally?

Larry 38:11
No, I can’t. But it does appear that way. But “the appellate court observed that its conclusion was consistent with the state Supreme Court’s decision in a case called People versus Cooper.” And that was from 1989, which held that a circuit court retains jurisdiction over a sexually dangerous person on conditional release. So they have decided that based on that 1989 case, that the circuit court can do this. So anyway, I would have been very dubious, but here we are.

Andy 38:42
“The appellate court also noted that Cooper differentiated an order granting conditional release from an order that discharges a sexually dangerous person from the supervision of the director, and the jurisdiction of the committing court. According to the appellate court, this distinction reflects the director’s guardianship extends to sexually dangerous persons on conditional release.” It appears that they held that the state is responsible for a person while on conditional release from civil commitment. That really, totally makes sense to me.

Larry 39:11
So well, it does, but then again it doesn’t. Part of the reason why when you’re working your way from institutionalization to freedom is that you’re supposed to be able to pull your own weight. There would be people who would argue that the taxpayers have to pull their own weight and now they’re having to carry this, but that’s what I get from this case. That’s exactly what they decided.

Andy 39:30
I bet you it’s significantly more expensive to have an inside some sort of facility.

Larry 39:36
Well, maybe.

Andy 39:38
Alright, well, let’s get what to what the Supreme Court said. What was the issue on the state of appeal of the appellate court’s decision?

Larry 39:47
Well, the sole question presented was whether the Circuit Court had authority under the act to require the director to contribute to the treatment and the cost and living expenses of Kastman after he had been placed on conditional release. That was their focus of the state Supreme Court.

Andy 40:04
The director also claimed “that requiring him to provide financial assistance is inconsistent with the purposes of conditional release. According to the director, a purpose of conditional release is to allow the circuit court to determine if a sexually dangerous person is capable of functioning outside an institutional setting before discharging him.” What did the court say in response to that?

Larry 40:25
Well, they actually had an answer. As I said, “we reject this argument because it blurs the critical distinction between financial instability and the need for supervision to protect the public. These are not the same thing. Nothing in the Act requires that a sexual dangerous personal unconditional release be self-supporting. And there’s no statutory language that addresses the circumstances for the sexually dangerous person on conditional release be self-supporting. This charge conditional release might appear no longer to be dangerous but require financial assistance to live outside an institutional setting.” But also the statute doesn’t say anything to the other way either. So this is a corporate legislating from the bench. So, go ahead.

Andy 41:05
All right. Well, they went on to say “the obligation to supervise imposed on the director derives from his responsibility as guardian, which are premised on the mental disorder that formed the basis for the sexually dangerous person’s commitment in the first place. The ability to pay for treatment costs and living expenses is a purely economic question that need not be directly related to the sexually dangerous person’s level of recovery, or his need for supervision outside of the institutional setting.” (See the opinion at pages 24 and 25.) This is powerful, though.

Larry 41:36
It is very powerful. The court concluded “the director’s public policy arguments do not compel us to conclude that the Circuit Court lacked authority to order the director to contribute financial assistance toward Kastman’s treatment cost of living expenses, which is based upon the plain language of the Act.” This is fantastic news. I would have never imagined that this decision would come down this way. But it did.

Andy 42:05
So in summary, he’s been treated, so to speak. And so they let him go. But he’s in like something of a halfway house, and he can’t afford all the expenses. So he petitioned to have the state still support him, at least partially. And he won that.

Larry 42:22
Except for he wasn’t really in a halfway house. I think he was in a regular in a more traditional setting. But nonetheless, he’s on unconditional release from civil commitment until they fully discharge him. He is a ward of the state according to this decision. This has huge ramifications. I mean, I would whether two things are going to happen. They’re going to try to change the law in Illinois–they’re going to try to change the statute. But if they don’t succeed in that effort, they’ll need to have fewer people and conditional discharge. So they’ll either fight to keep them in custody longer. If they’re going to pay for their overhead anyway. Or they’ll discharge they’ll fully discharge them sooner. And I would bank on to try to keep them in custody. If they’re gonna spend a whole bunch of money supporting you, they’d rather your threat of recidivism be virtually zero.

Andy 43:11
Sure, sure. Like I said, it’s gotta be more expensive to keep somebody behind the walls than it does to let them live on the economy and subsidize, I guess you could say.

Larry 43:23
Well, liberals have said that for a long time, you know, it costs $40,000 a year to keep a person in prison. What if we gave the person a $40,000 guaranteed income? Would they commit less crime? What if we gave him a $31,000 annual income. We’ve said that for a long time, the economic disparities in this nation where people–the federal minimum wage is $7.25 an hour? Do your calculation. Figure out what that comes out to now.

Andy 43:51
15 grand a year.

Larry 43:53
Very few people work for the federal minimum wage, but there are people who are working for something approximating seven to $10 an hour, and you just can’t live on it. So therefore, economically, it’s very difficult to survive in this country if you’re in that category of folks. So criminal behavior is a quick generator of income. There are many things you can do that generate income very quickly.

Andy 44:12
Right, totally, especially in those conditions. You’re not going to be able to find just any job if you have that “sexually dangerous person” somewhere in your background check. All right. Let’s move over to Galen Baughman. In the Virginia civil commitment update, as I recall, they sought to have Galen’s commitment years ago, when he was about to be released from prison.

Larry 44:41
Your recollection is correct. That jury at that hearing found that he was not dangerous, so they denied the state’s petition. At that time, I forgot how many years ago, but it was several years ago.

Andy 44:52
It’s been since we’ve been doing the podcast so if I’m not mistaken and do they have an axe to grind.

Larry 44:57
I would suspect that they did. Galen is attracted to adolescent males. And there’s a good probability that they sought commitment due to their distaste for that attraction. You shouldn’t assert it when you can’t prove it. But on background, it’s probably one of the things that made them find him so distasteful that they thought we don’t need that kind of person on the street.

Andy 45:25
As I understand this case, the court narrowly decided on the expert who testified at the probable cause hearing on the second petition for Galen commitment.

Larry 45:34
That is correct. On appeal from being committed on that second hearing, Galen argued that the trial court, by permitting, Doctor Sjolinder–

Andy 45:48
Sjolinder’s the way that the Google Search looked for it. So Sjolinder’s what I got.

Larry 45:54
By allowing her to testify as an expert witness, and she was not appointed by the state commissioner. And there was a process in Virginia of who gets to assist in these petitions for civil commitment. Specifically, Baughman contends that under the Sexually Violent Predator Act, only the psychologists designated by the commissioner can testify as an expert for the Commonwealth. And Dr. Sjolinder was not designated by the commissioner and Baughman insisted that she was not permitted to testify at either the probable cause or the subsequent trial. But she was allowed to testify.

Andy 46:31
So Dr. Sjolinder was not appointed.

Larry 46:35
That is correct. The person that was appointed through the process found that Galen was not a candidate for commitment and recommended against them filing a petition. And the state went outside the process and retained Dr. Sjolinder later.

Andy 46:48
There’s that axe to grind. A court noted “it is an undisputed fact that Dr. Sjolinder was not designated by the commissioner, nor did she take part in both Baughman’s mental health examination. She was, instead, retained by the Commonwealth after it received Dr. Graver’s report. Although the Commonwealth is clearly permitted to consult with Dr. Sjolinder, nothing in the code statute 37.2-906 permits the Commonwealth to call her as an expert witness at the probable cause hearing.” That is on page five. They’re doing everything that they can to try and keep him locked up. Shocking.

Larry 47:25
They were. And the court noted that Baughman clearly raised the issues relating to Dr. Sjolinder’s expert testimony before trial. As Dr. Sjolinder expert testimony provided the only means for the trial court to determine Baughman’s mental state, the trial court’s error was clearly prejudicial, and substantially influenced trial court’s determination of probable cause.

Andy 47:50
So does this mean he gets out? Or is out?

Larry 47:52
It should mean that. I don’t know if he’s out yet. But barring something extraordinary, it was reversed, and the petition was dismissed read the opinion. So it shouldn’t mean that he would be out. But there was a lot of issues that I thought were meritorious in this as I looked at it when it was happening, because he had been acquitted. And that’s not the right word. But the state’s first petition years ago, the jury had decided he was not sufficiently dangerous to commit him. They had found him not a candidate for commitment. He was released on probation. And he was doing fairly well on under probation. But then, in the course of his probation, he was able to travel to a funeral. And then in that trip, he met some adolescent males, as I recall. And he got phone numbers and was involved in texting communication, which was a violation of his probation. So his probation was revoked. And that was probably within the zone of proper action because he was not allowed to have communication with minors while he’s under supervision. But that did not create a new sexual offense. And the way I read Virginia law at the time, there must be a predicate offense that triggers the commitment. And then there’s a fairly elaborate process–I can’t recite every step–but there’s a fairly elaborate process, and the state does provide a small level of financial assistance for those whose commitments are being sought to fight that. And they didn’t have a predicate offense to follow the second petition, Baughman argued. And he thought it should have been argued that the second petition was improper because he had not committed a sex offense. It had already been fully litigated on the first petition, and this was stopped by the decision of the jury years ago. They chose to strategize differently, and they focused on the examination. And they were correct. It worked. I mean, they won the case. But it’s a very narrow victory, as you pointed out, because we’ve got one answer. We’ve got the answer on the expert must be one within the process if they’re going to testify. We don’t know whether they can file a second petition without a predicate offense. Now what would be ironic, since I can’t say funny, it would be ironic if they file another petition against him. You’d have to admit that would be ironic, would it not?

Andy 50:39
It would be ironic, I probably just expected though.

Larry 50:44
It would not surprise me if they did.

Andy 50:47
But they’re just asserting that he–I know you’ve never watched the movie Minority Report–but he is guilty of thought crimes. I am not condemning the guy for being attracted to minors or anything of that sort. But if that just it, that’s not he’s not guilty of the thoughts until he would commit the act.

Larry 51:08
Well, under the sexually violent commitment statute, the mental abnormality must be diagnosed. And that’s a very vague standard, that they have a mental abnormality. And then they must show that that mental abnormality makes them have a higher likelihood of doing something sexually inappropriate. Texting is not a sex crime. So therefore, you could take everything at face value and say there’s not enough information here. But the prosecution would argue that that’s grooming behavior. And they even had some of the text messages, and the text messages were things you wouldn’t want an adult texting to a minor. It was something to the effect of getting away from parental supervision. You generally don’t want to encourage minors to be evading adult supervision. I think you’ve got a teenager. You would not appreciate someone doing that, would you?

Andy 52:08
No.

Larry 52:09
But that is not the same thing as going to engage them in my act of violence and an act of having sex against these young people’s will. So anyway, I don’t know that they cannot file another petition. They hate him enough that they very well could try it.

Andy 52:25
Very interesting. All right. But as with many of these things, is there any sort of precedent that this will set for someone else? Does this only apply to Galen? Or does it have any sort of further reaching impact for anybody else.

Larry 52:42
it does have the reaching impact in terms of the expert. They’ll have to follow the process. They will make sure that the expert that they put on is as a person who meets the credentials in the statute. And another way to get around is change the statute to allow for the testimony. And that’s another thing that they could potentially do. But for the moment, this does have that presidential authority for people who would find themselves with an expert testifying that wasn’t appointed by the commissioner. But the bigger question of whether they can file a subsequent petition–we would never even have had to answer this question about the expert. If you couldn’t file a second petition without an additional offense. See, I always like to focus on the root of the problem. And that’s something that went on with the Zack Anderson case that nobody could understand, which was a strict liability offense. Everybody got fixated over the fact that he was not given the Holmes Youthful Trainee Act, which would have spared him from registration, and how unfair the judge was, and how the judge had an axe to grind. And that’s all well and good. And it worked for Zach. And that’s great. But the real problem is there’s 10s of 1000s of Zach’s out there because of the strict liability nature of Michigan in many states’ laws. The problem we have here hasn’t been cured fully because nothing will stop a prosecutor from filing a second petition because that wasn’t addressed in this case. So they will have to tiptoe around the experts they use, but they can still file a second petition that wasn’t addressed.

Andy 54:17
Remind me. Strict liability is if you don’t know the law, you’re still guilty, even if you don’t know what the law is, and you break it.

Larry 54:27
Not necessarily if you don’t know the law, but there’s a particular element of the crime that you’re not aware of like the person’s age. So like in Michigan, you have sex with a person. And you say you didn’t know their age. They say, well, the fact of the matter is they were only 14. And you say, well, they told me they were 17. It doesn’t matter. That’s what strict liability is.

Andy 54:48
I had a roommate who provided me with some story, and I was like well, how do you defend against that if you didn’t know that it was happening? And then you’re guilty. I couldn’t wrap my head around it. I had no understanding that, like what you just described, you go to a club, you think everyone’s there because you drink because it’s an adult club 21 and older, and person turns out to be 16 because they had a fake ID, you’re still guilty because they got into the club, but that’s not your fault that they got into the club.

Larry 55:14
Yes. And that’s referred to as culpable mental status and like you don’t have the culpable mental status. When you’re not seeking to break the law, it just happens. That’s when you have what’s called a strict liability. You’re on a hiking trail, and a blizzard comes, and they have exclusion zones where you can’t go off the trail, and you can’t see those barriers. You go off trail, but you say, well, I couldn’t see it. And I said too bad, we found you 500 yards off trail.

Andy 55:39
I gotcha. I think that that will do it for this evening, sir. Is there anything that you want to say before we close out?

Larry 55:50
Yes, we have. We have what? That wasn’t there a new patron that you forgot to announce last week?

Andy 55:59
There might be. If you will vamp for a moment, then I will go track that down.

Larry 56:04
And then we are communicating with a person that sent us an email part of what we read last week, from the person in Fort Leavenworth and the military about changing your mind. When yes means yes. No means no. But you remember that one? Well, we had a person reached out to us and said that we can talk, and I reached out to the person by email, and I said, “Please provide me your phone number. And please agreed to answer it.” And I was kind of snarky. I said, “I don’t have time to play phone tag, because most people are afraid to answer their phones these days. So therefore, I’m hoping that if I get a phone number that someone will actually answer it.” Because what I usually do is I have a list of people to call. I make the phone call to the person, and that person doesn’t pick up, and I go on to the next person on my list that’s wanting me to call them. And then the person immediately calls back and says, “I got a missed call.” And then they get mad because I didn’t pick it up. But guess what, I’m no longer available for you, because I moved on to the next person on the list. So when I call you, answer your phone, please.

Andy 57:07
Okay, and so you can get off that soapbox. We did get a new patron earlier in the week named Ethan. And then probably related to the Chatting with Larry section that we’re going to do a person named Jane increased their patron amount so that they could participate in those chats with Larry that are going to start next week.

Larry 57:30
Awesome.

Andy 57:31
Are they going to start next week?

Larry 57:32
I’m hoping that they work out next week.

Andy 57:36
I will try to send out some notice to folks beforehand. Give you a day or so notice maybe Wednesday or Thursday night in the evening or something like that, that you’ll make yourself available for people to just kick the Bobo. Shoot the SH, whatever you want to say with Larry, on Patreon on Discord.

Larry 57:55
You know I’m gonna run them off by tell them things that they don’t want to hear?

Andy 58:00
I totally understand that. Very good, sir. I hope you have a wonderful night. I’ll tell everybody where to find all this stuff. You can find all the show notes over at registrymatters.co and FYP education.org. Leave a voicemail at 747-227-4477. Email at registrymatterscast@gmail.com. And of course, support on Patreon at patreon.com/registry matters. And one other thing, if you want to listen to us live. We do it on Discord again, but it’s at 7pm Eastern Saturday nights. And if you are nice to me, I will let you in so that you can listen to us record this live. And I think that’s all I got. I hope you have a great weekend.

Larry 58:39
And don’t forget to LIKE IT on YouTube and give us a five or 10- or 15-star review. How many stars do they go?

Andy 58:46
I believe it only goes to five.

Larry 58:49
Then give us a five-star review. And we’ve got to build that YouTube channel to 1000 subscribers, and we’re only halfway there folks. So get to work.

Andy 58:59
Well, very good. And I will talk to you soon, sir. Have a great night.

Announcer 59:06
You’ve been listening to F.Y.P.

RM 237 Recorded 9-10-22
292-Year Prison Sentence Not Cruel and Unusual
United States Court of Appeals for the Ninth Circuit

Announcer 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the host and do not reflect the opinions of any other organization. If you have problems with these thoughts, F.Y.P.

Andy 00:17
Recording live from FYP studios, east and west, transmitting across the internet. This is episode 237 of Registry Matters. Good evening, fine sir. How are you?

Larry 00:28
Doing awesome. How are you?

Andy 00:30
I’m very well. You made it another week.

Larry 00:33
Isn’t that amazing?

Andy 00:34
That is pretty amazing. Speaking of making it another week, somebody else didn’t quite make it another week. Do you have anything to say?

Larry 00:43
Someone who didn’t make it another week?

Andy 00:46
Yeah, that would be the queen.

Larry 00:48
Well…

Andy 00:49
Charles is probably upset.

Larry 00:50
She only made it 96 years.

Andy 00:55
But in pre-show, we talked about the reign of leadership, whatever. Like there was a pope that made it how long?

Larry 01:05
28 days?

Andy 01:08
That’s not very long. That is not very long at all.

Larry 01:13
Yeah, so we were testing my memory, and nobody googled it. So I think he lasted 28 days. I think he was proclaimed Pope in ‘78. And I think his name was John Paul, the first. I think he originated from Poland.

Andy 01:31
And are we talking about like in the 1800s? Or is that roughly. Is this somewhere in your tenure of life?

Larry 01:39
We talked about 1978.

Andy 01:41
Oh, that’s not that long ago. I was even a hatchling by then.

Larry 01:47
So yeah. So he preceded John Paul the Second, who lasted quite some time.

Andy 01:52
Right. And he’s the one that in the modern era, like he was almost like the Queen, for he was there for forever. And he ended up with like, the Popemobile, with a little bubble over his vehicle, I believe, because there was an assassination attempt on him.

Larry 02:08
That is correct. You have a great memory.

Andy 02:12
Well, tell me what we are going to do tonight, Sir.

Larry 02:16
Well, we’re going to offer some condolences for someone who was lost in a prison in North Carolina, I think just yesterday. We’re going to play some audio video clips from YouTube. And we’re going to take a question from one of our long-term listeners. And we’ve got an analysis to do with that question that’s pretty thorough. And we’ve got a great decision from the Ninth Circuit that illustrates what’s wrong with the Anti-terrorism and Effective Death Penalty Act of 1996.

Andy 02:54
Man, all right, well, sounds like we’re going to have a great show ahead of us. And before we get going too far on this, I will say make sure that you go over to the YouTubes and press the like and subscribe and hit the bell to notify, and that’ll start spreading the FYP registry matters juice all over the place. And that’s definitely what we want to have happen, isn’t it?

Larry 03:14
It is indeed. We picked up in the last episode, I think at least 15 or 20 new YouTube subscribers, which is an unusual high number for us.

Andy 03:23
Well, considering that the title of it–I wouldn’t say it was like super click baity–but it was definitely like the amazing defeat or whatever I wrote, as far as the title goes–crushing defeat in Pennsylvania.

Larry 03:37
Well, I’m sure that that caused some people to click, but it was a crushing defeat. It really was.

Andy 03:42
I agree. And so that generated a lot of buzz and a lot of traffic. Anyway, I appreciate it. So make sure that you share the podcast and tell everyone you know. I did I’ll give you a quick update on this, that maybe I should say to them, but I contacted Securus or whomever is running the tablet stuff in the prison. And I’ve had minor email conversations back and forth. And I did get a reply. And they said, go over here and do it. So maybe we’ll end up in prisons, maybe. That would be pretty big. I think that would be super significant for us to get to the PFR community that is still locked up and get them listening to the podcast.

Larry 04:18
Well, that would be so awesome, because we are looking at the transcription service as far as the distribution arm. The printing will always be doing the transcript for the website. But since the circulation is at such a low level, we may have to reevaluate the viability of that so it’d be great if they could actually listen.

Andy 04:39
Yep, absolutely. Well, so first up on the roster would be that this last-minute news came in and it is “Central prison on lockdown after inmate beat convicted PFR to death.” Oh my god. So this is in North Carolina, right?
Larry 0:5:07
Raleigh.
Andy 05:09
Raleigh. And so he was pretrial. Is that what I read in the article, Larry?

Larry 05:06
You read it correctly. It’s very sad that–I’m just going to go ahead and offend the prison audience. You filed every writ that you can, and you assert your constitutional rights. And yet, prisons are the most unforgiving places when it comes to respecting anyone’s constitutional rights. This man was pretrial, and he did apparently have previous convictions, for PFR type stuff. But he was put in a prison because the county didn’t think they could keep him safe. And he was beaten. His name was–let’s not leave him nameless–his name is Ronald Rhodes. And he was beaten by other inmates Friday morning in the recreation yard, according to North Carolina Department of Public Safety. I guess all we can do is what is standardly done is thoughts and prayers for the family. But I’m really, really upset about this.

Andy 06:03
I completely understand. So I mean, is there anything else besides this?

Larry 06:10
We don’t really know much other than this, but I found it so sad that of all places, when someone comes into a prison or jail, which is what he was in for was for, for pretrial detention, you should afford them the benefit of the presumption of innocence that our constitution is supposed to afford everybody. And I say that regardless of the offense, regardless of if it’s a police officer, regardless of if they do something that we see on camera–there may be a defense that’s viable. Therefore, they’re presumed innocent.

Andy 06:45
Gotcha. So the one thing in here that I wanted to bring up with you is that Rhodes was being houses in the prison as a “safe keeper,” at the request of Wake County and the “safe keeper” is generally an offender who is housed at a state prison before trial, so I’m going to assume he was not afforded bond, and that he is just in a pretrial detention type deal, but they have it worded differently.

Larry 07:09
So yes, I have not seen that term safe keeping. But that would be not unusual if a local lockup doesn’t feel like they can keep him safe, based on a high level of community awareness. You can’t keep the word– you can’t keep people’s stuff secret now, in this modern era that we’re living in. Therefore, it’s difficult to do anything other than try to move them to a facility where hopefully their offense won’t be so easy to discern, but it just didn’t work. He was still–

Andy 07:39
Clearly it didn’t work. I mean, there is like the chain-gang-hotline. I mean, all you do is like, hey, this person came in, and their family will go look them up, and they’ll tell you who the person is. And then everything goes to like, you’re just at the whim of everyone in there to do what they want to do to you.

Larry 07:59
Well, like I say, I’m sad about it.

Andy 08:03
All right. Well, then let’s move over to this listener question, which is probably going to consume almost the rest of the podcast. And so we have this question that reads and it’s from Moses, as you said. Seriously, Moses 10 tablets guy, remember the 10 Commandments guy?

Larry 08:18
Moses is actually the guy’s name.

Andy 08:22
All right. “I have a question about the Full Faith and Credit Clause in the United States Constitution. If this provision means anything, how can a person be subjected to separate punitive restrictions based on which state they reside? If one migrates to a new state, they are subjected to the laws of that state, which doesn’t seem right. Shouldn’t each state recognize once one’s punishment is completed in another location. This would be similar to one state recognized in other states driver’s license or marriage license. It seems to me that if state A imposes a 10-year period of registration, all other states should be bound by that under the Full Faith and Credit Clause. I’ve been listening to you two babble for years now, and I’m confident you will have some way to justify this as being constitutional.” Alright, so I like this question a lot, including the snark. And would you be so kind, sir, and explain to me what the full faith and credit clause is?

Larry 09:22
Well, the Full Faith and Credit Clause? I’ll just read it: “ Full Faith and Credit shall be given in each state, to the public acts, records, and judicial proceedings of every other state. And the Congress may, by General Laws, prescribe the manner in which such acts records and proceedings shall be proved and the effect thereof.” That’s in Article Four, Section One of the United States Constitution.

Andy 09:52
So Article Four, Section One of the United States Constitution. And why is that clause there? What does it do? What do we do man?

Larry 10:00
Well, I decided to do that research, and I went to a reputable source called the Heritage Foundation. Okay, the Heritage Foundation would never mislead us.
Andy 10:22
No.

Larry 10:24
And they say “an essential purpose of the Full Faith and Credit Clause is to assure that the courts of one state will honor the judgments of the courts of another state, without the need to retry the whole cause of action. It was an essential mechanism for creating a union out of multiple sovereigns.” And again, that’s available at the Heritage Foundation’s guide to the Constitution.

Andy 10:41
All right. So now we’ll move on to the issue of registration of offenders and how this clause might be applied. Does this person theory have any merit? Is one state changing another state’s sentence?

Larry 10:57
Possibly, but it’s crucial to understand that many who were registered, engaged in underlying conduct prior to the existence of registration. And by the very nature of that situation, it would be clear that the sentencing court did not order a person to register at the time the person’s sentence was imposed, and certainly did not specify a period of registration per se.

Andy 11:18
But we could take a whole big detour and talk about the Kennedy-Mendoza. And it’s a civil regulatory scheme, therefore, it’s not punishment, blah, blah, blah. We could go down that whole path.

Larry 11:30
We will. We will get there as this progresses.

Andy 11:34
All right. Well, then the courts have upheld the retroactive imposition of offenders’ registration as a non-punitive civil regulatory scheme. And I thought you have stated repeatedly that regulatory schemes cannot be, or excuse me, can be changed. They can be changed retroactively.

Larry 11:48
Yes, those truly civil regulatory schemes can’t be imposed retroactively without violating the Ex Post Facto Clause when they’re remedial in nature. Unfortunately, most registration schemes as they exist throughout the United States today go far beyond what anyone could be objectively considering as non-punitive.

Andy 12:08
And does he have a point in terms of those who committed their offense after the existence of registration?

Larry 12:15
Maybe. Most offenders who engaged in conduct and who have been sentenced since the creation of registration schemes generally were apprised by their sentencing court of the duty to comply with offender registration. But this is still not the same thing as having a particular period of time prescribed in the sentencing order.

Andy 12:36
Have you ever seen a sentence order where the actual registration period was prescribed?

Larry 12:42
Yes, I actually have. I’ve seen some rare situations where the sentencing order does prescribe a particular period of registration. In those situations, the person might have legitimate legal claim that they were imposed by the court and the original jurisdiction should be final and binding of all states.

Andy 12:57
In those cases, were they exceeding or were they reducing the amount of registration.

Larry 13:03
They were not doing either. They were just putting down on paper how long the person would be required to register. But those were anomalies. Because as we have generation one, generation two, as the registries have been enhanced and extended, those practices of putting a particular time in there have long since vanished. But in the early days of registration, when we had much more lenient terms for registration, but shorter terms. I’ve seen a few that actually included the amount of time that the person would have to register.

Andy 13:39
Have you seen anybody challenge it when they put the registration obligation there in the sentence?

Larry 13:48
To my knowledge, there hasn’t been any appellate case law. But yes, I have seen in an instance, where there was a particular time that the person moved for enforcement of the judgment, but they had not left the original state. And the enforcement of the judgment did occur because it was deemed to be a binding contract and a binding order of the court. It was in the plea agreement. It was a binding order of the court. But the only way to find out if this was a credible argument would be to develop a case asserting the Full Faith and Credit Clause.

Andy 14:19
So has there been a challenge like that?

Larry 14:24
Not that I’m aware of, no.

Andy 14:27
Okay. What would you expect such a challenge to be if there was one wanting to be brought?

Larry 14:32
Well, we can be certain that the Attorney General of the State would fight vehemently to extinguish the person’s case. They would argue that since the registry is a non-punitive civil regulatory scheme, they can impose their own requirements independent of the state where the underlying conduct occurred. That’s, that’s just got to be their first line of defense is, you know, this is civil, remedial and non-regulatory. And we can do this, and we don’t care what happened in Georgia. This is not Georgia. This is Iowa.

Andy 14:59
I still will really struggle to find, unless we’re talking about the super easy states where you’re not on a public website, and there’s very little quote-unquote disabilities and restraints, how anybody could honestly, with integrity say, that it is not punishment. There are so many things that go with it that can put you immediately in harm’s way.

Larry 15:25
Well, they can say that because on the last standing order that’s precedential, in that jurisdiction– if there has been no termination in a jurisdiction that registration is punitive. Like, for instance, in my state, there’s been no determination that our registry is punitive. Therefore, you can say it with a straight face because the controlling case law is that it’s not punitive.

Andy 15:44
Gotcha. How would they justify their position since that clause, the Full Faith and Credit Clause, seems so clear?

Larry 15:52
Well, they would cite to other examples of civil regulatory requirements that change from state to state. For example, some vehicles are exempt from pollution inspection in sparsely populated states. And that exemption does not transfer to the new state. So that’s what they would say they would say: Your Honor, this is just bogus. I mean, clearly, this is a civil regulatory scheme, as far as New Mexico Supreme Court has said, and whatever they may have had in Pennsylvania is irrelevant in our state, because ours is not punitive. And therefore, we can change it just like we would do on any other civil regulatory scheme. You may have been exempt from paying for a driver’s license. You’re no longer exempt when you come here, or vice versa.

Andy 16:33
But when you do go to another state, you follow that state’s registry stuff, don’t you?
Larry 16:38
That is correct.

Andy 16:40
Okay, Okay. And so then do you think the legislature would get involved if someone filed one of these cases?

Larry 16:50
I think at some point, that very much could happen, particularly if the argument is gaining traction. More states would amend the registration laws to include a clause that imposes the greater of the duration required in the state of conviction or their state. And in fact, there’s some states that already have that clause in their statutory schemes. I came to realize that Iowa has that and so does Utah.

Andy 17:20
And so we talked about, almost like plaintiff shopping, who do you think a good plaintiff for a case like this? Who do you think that person would be? What would their profile be?

Larry 17:31
I think would be an individual who does have a specified period of registration, prescribed in their sentencing order. And then the second-best candidate would be a person who had a defined period of registration spelled out in their plea agreement. That person would be in a stronger position to argue that the agreement should be enforced as a binding contract.

Andy 17:52
And if it was actually in the plea agreement, that person would be in a stronger position to argue that the agreement should be enforced, wouldn’t it?

Larry 18:00
I think, I certainly think they are because these have been deemed to be contracts. But the situation is a bit murkier, because the new state would counter by claiming that they cannot be bound by an agreement made by an official another jurisdiction, which is what I mentioned earlier, that where there was a particular time, it was enforced in this jurisdiction, because it was a contract made by a New Mexico official, who was authorized to act on behalf of the State in being the district attorney, or the associate District Attorney. But this would indeed be a very unique and interesting legal challenge if someone were to do this. And Moses has really tantalized me with this question.

Andy 18:37
And while you clear your throat for a minute, so someone in chat says isn’t a driver’s license a civil regulatory scheme. So if you go to another state, do you get forced to go get a new driver’s license?

Larry 18:51
You do at some point, if you’ve been in that state, long enough, generally like 30 days, you would have to get a new driver’s license if you’re going to be there beyond a certain point.

Andy 19:01
I recall, and this could have been hearsay that when I was in the military, and I got stationed somewhere, they said that you didn’t have to change your driver’s license, because you’re permanently temporarily there. So you’re going to change duty stations in a little while, so why keep making you go change your driver’s license? And you just keep your driver’s license from your home state through the umpteen 100 years that you’re in the military.

Larry 19:25
There may be such an exception for military.

Andy 19:28
All right. Is there anything else that you wanted to cover here? It’s an interesting question.

Larry 19:36
It is. I really think that someone may be able to bring such a challenge, and we may be able to get some traction.

Andy 19:43
And Brenda says military special indeed. Yes. Very, very special, like Shortbus special, Brenda.

Larry 19:49
Shortbus special.

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Andy 20:38
Well, then you also put this case in here from the Ninth Circuit Court of Appeals named Atdom Patsalis. Why do you put these– like I can read in some really complicated words, Larry–, but this one—Atdom Patsalis versus David Shin. And it was just a few days ago that the decision came out. And I remember a case that was named May versus Ryan, which later became May versus Shin. Why do so many people sue Mr. Shin?

Larry 21:09
They still have insufficient capacity as Attorney General of Arizona.

Andy 21:14
What part of Arizona is this case from? We just did the clip from–no we haven’t done the clip for Maricopa County yet.

Larry 21:24
Yeah, we kind of got them out of order. I thought we were gonna do that clip first.

Andy 21:26
Then I goofed up. I’m sorry.

Larry 21:31
But yeah, we can do we can do those later. We’ve got this one from Mojave County, which I think is Kingman, Arizona.

Andy 21:41
So what’s the issue here? I’ve read it thoroughly. And I see no connection as usual to PFR issues. You do realize that FYP’s time is valuable? Like I’m on the clock here and you better bring me some juicy stuff, or else I’m shutting you down.

Larry 21:56
I do recognize our time is valuable, but it does have a connection to PFR issues as it relates to the federal Habeas Corpus proceedings, and the Anti-terrorism and Effective Death Penalty Act of 1996. And it’s very similar to Steven May’s case, which we have discussed on previous episodes.

Andy 22:14
Well, can you summarize it? Be brief, Larry, don’t use many words. Use few words. Can you describe what this case is about?

Larry 22:26
Sure. Mr. Patsalis, I think it’s the way you pronounce it, sought federal habeas relief, arguing that his 292-year sentence imposed by an Arizona State Court is grossly disproportionate to his crime and constitutes cruel and unusual punishment and violation of the federal and Arizona Constitution. Is that concise enough?

Andy 22:49
I suppose. So he was convicted of how many felonies, Larry? Larry, I want you to say it.

Larry 23:04
25.

Andy 23:05
Twenty-five, mostly residential burglaries committed against multiple victims over a three-month period. He was very active–I’m assuming houses or apartments. And it was noted that these were not his first crimes. The trial court imposed consecutive sentences and consecutive is not concurrent, meaning they got one after the other after the other on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment. And can you at least admit that that has to be cruel and unusual punishment, Larry?

Larry 23:35
No, I can’t.

Andy 23:38
Alright, so let’s give a little bit of some background on the petitioner’s case. He committed a series of burglaries over a three-month period when he was 21 years old. He was offered a two alternative plea deals. The trial judge explained to him that the deals and that he faced up to 490 years. Hey, they downgraded from the 490 down to 292 later. That’s not a bad deal. He faced up to 490 years imprisonment if he went to trial. He rejected the plea offer, went to trial, and a jury convicted him on 12 counts of burglary in the second degree, 10 counts of burglary in the third degree, theft of a credit card, unlawful means of transportation, and an attempt at unlawful means of transportation. Does this mean like carjacking?

Larry 24:23
Probably not. I wasn’t able to get a lot of detail from the Arizona court decision, but he probably just stole their vehicles after he broke into them.

Andy 24:32
And so then the jury also found two or more aggravating circumstances on all but two counts of convictions. I know you people will say he should have taken the plea.

Larry 24:43
Well, I might, or I might not. It was again not clear what they had offered him. It would depend on what they offered him.
Andy 25:05
They could have offered him concurrent.

Larry 25:07
Well, if they offered him something that would allow him to be free again. He will now die in prison, barring any changes in Arizona law. But had they offered him anything that would give him some reasonable assurance of freedom, then I would look at the strength of the case as it existed. And he had confessed. That was an Arizona State Court decision that I reviewed. So being that he had confessed, I would have encouraged him to take a plea that would have gotten him out of prison. Yes, but not knowing what the plea offer was, I don’t know if I can say that.

Andy 25:30
At sentencing, the trial judge found that Patsalis was a category three, repetitive offender because he had two prior felony convictions. The judge also considered Patsalis’ lack of empathy for his victims, that his victims included elderly, retired people, that his crimes were premeditated, that he was not under the influence during the commission of any of his crimes, and that his prior incarcerations had not deterred him from continuing to engage in criminal conduct. Why did they merge the counts, though? That’s really troubling.

Larry 26:05
Well, because there was no plea agreement, which left sentencing pretty much wide open. The judge rejected Patsalis’ argument that the 25 offenses were part of a continuous spree because he committed them over three months, which is what he was arguing. Exactly what you’re saying, they should merge. It was one criminal episode. But the judge said that that gave him plenty of time to reflect upon his conduct, and not to continue. So therefore, they didn’t merge because the law in Arizona is structured the way it was, and he had nothing to protect him at sentencing because he went to trial. Remember, he did what you encourage everybody to do.

Andy 26:41
And before we go much further, I would like to get an explanation on why this case went to federal court. If he wasn’t, if he wasn’t robbing houses in multiple states, which I still think wouldn’t be federal, how does he end up that Arizona bumped this up and had him tried in a federal court.

Larry 27:03
Well, it ends up there because of the US Constitution. There’s a procedure after the states, after everything’s been exhausted in the state that you can argue in federal court that your US constitutional rights were violated. And the federal courts can overturn a state court conviction using habeas corpus as the mechanism or vehicle.

Andy 27:24
And so in other countries, Larry, they have almost like caps on the number of years. You could go almost like–I don’t want to use super gross terms—but there was a guy like in the early 90s, that he went and did a massive killing spree in maybe Sweden, Switzerland, Finland, somewhere up that way. And his maximum sentence was like 21 years, and he killed like 50 or 60 people. And I know that he did not get out of prison because they kept extending it. But the initial sentence was that he could only receive like a max. Apparently, the United States does not have any sort of maximum.

Larry 28:01
Well, some states do, but again, this is bright red Arizona.

Andy 28:09
And I read that when he went to trial, and this means that he would have had a right to have his conviction reviewed by a state appellate court?

Larry 28:16
That is correct. But the Arizona court of appeals rejected his constitutional claims. They concluded that extremely lengthy finish should be assessed based on each individual conviction and sentence, not a cumulative effect of two consecutive sentences. As a result, they found that none of Patsalis’ individual sentences were disproportionate.

Andy 28:40
So if we did 25 divided by 292, he got, what 15ish years for each one. So that’s not, on their own, an unreasonable amount of time for each one. But then they said they would only evaluate this–15 years, no big deal. Let’s look at the next one–15 years. And then they just go down the line, and 25 times they say 15 years, no big deal. Did he appeal that decision to the Arizona Supreme Court?

Larry 29:08
He did, and they denied review.

Andy 29:11
Oh, my God. So then he sought to have habeas relief under 28 US Code Statute 2254. Did I read that right?

Larry 29:20
Section 2254. But that’s great.

Andy 29:22
I’ll get it right eventually. I remember you have talked about AEDPA, which is the anti-something terrorism and Protection Act or something execution. And what does it do again, AEDPA?

Larry 29:33
Anti-terrorism and Effective Death Penalty Act?

Andy 29:37
Okay. And so we’ve talked about AEDPA in the past, and you’ve indicated that the petitioner must exhaust all state court remedies before going into federal court. Does the Arizona Court of Appeals decision meet the definition of exhaustion?

Larry 29:52
Yes, because the State Supreme Court did not review.

Andy 29:56
And so he filed the 2254. And what is that? Can you explain?

Larry 30:02
Yes. It’s the section of the federal law that governs Habeas Corpus proceedings filed by those challenging some aspect of their conviction on a federal constitutional ground, and they’re challenging a state conviction. So that that’s the section of federal law they use.

Andy 30:18
I see. And so you said the reasons we are covering this is because of AEDPA. Can you briefly explain what that does and what it is and all that?

Larry 30:27
Sure, the anti-terrorism and effective death penalty act of 1996 was passed by Congress, to deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes. To accomplish this goal, some of AEDPA provisions include increasing penalties for crimes involving explosives or terrorism and providing restitution for victims of terrorism and setting new legal procedures for capital cases. That’s one part of AEDPA.

Andy 31:00
And there was a provision in the AEDPA that severely restricts federal judges in terms of their authority to overturn state court convictions. Can you briefly explain that?

Larry 31:11
Yes, and I borrowed this from Cornell University Law. The ad habeas provision is codified as 22. US Code. Section 2254. It includes a statute of limitations for habeas corpus claims, and restrictions on a habeas petition’s ability to file a second habeas petition, and section 2254 D narrowed the grounds on which successful habeas claims can be made, while allowing claims only to succeed when the state court decisions–listen carefully—One, was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or Two, was based on an unreasonable termination of the facts in light of the evidence presented in the state court proceeding. So it’s pretty narrow. You’ve got to be able to cite to a US Supreme Court precedent.

Andy 32:08
Alright, so this is making a little bit more sense. His primary argument to the habeas judge was that there should have been no deference to the Arizona Court of Appeals. Did I get that right?

Larry 32:18
You did. He argued that AEDPA deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence. He argued that he was entitled to a de novo, which means a new review of this claim without any deference.

Andy 32:38
And the district court disagreed and afforded AEDPA deference to the Arizona court and concluded that Patsalis is not entitled to relief. What did the Ninth Circuit decide?

Larry 32:50
They agreed and affirmed the District Court.

Andy 32:54
All right, well, then let’s get more into his AEDPA deference. Without that nuance in the ‘98 AEDPA, the Federal habeas court could have granted him some relief?

Larry 33:06
That is correct. But now they have this tough standard. And according to the Ninth Circuit, and I’m going to read from what they said: “a decision is not objectively unreasonable, just because it is incorrect, or even clearly erroneous.” And they cited some cases that support that. And that is, then they go on to say that “even a strong case for relief does not mean a state courts contrary conclusion was unreasonable.” And then they cited Harrington versus Richter from 2011. So sorry, I hope you guys heard what, even if it’s incorrect or clearly erroneous, that’s not enough.

Andy 33:43
But don’t only want the states to be able to control their own court systems anyway. They’re the sovereign, blah, blah, blah. So they can’t–you don’t just want the federal government to go in and overrule everything.

Larry 33:55
That is correct. That’s what the Conservatives used as an argument for this particular section, where they did the habeas insertion into the AEDPA 96. They argued that these lifetime-appointed judges who are accountable to no one, come in and just steamroll the state courts, with the vast power of the federal government, letting vicious criminals go free on the flimsiest of grounds, and we needed to have finality with the state courts, unless there was some astronomically absurd thing that went wrong, and it’s just almost impossible to thread the needle through the AEDPA.

Andy 34:35
But doesn’t 292 say something about something completely egregious.

Larry 34:42
Ah, no, that’s what you suggest.

Andy 34:45
I see. All right. Well, and I read through this Arizona court of appeals did not specifically rule on the constitutionality of the 292 years, which he argued was cumulatively cruel and unusual. It is certainly unusual, Larry.

Larry 35:00
It is. He did indeed argue that he presented an Eighth amendment claim and a state constitution claim to the Arizona courts asserting that the cumulative impact of incidences was cruel and unusual because they violated the prohibition against sentences that are disproportionate to the crime committed. But no dice. Cruel and unusual is a tough standard to meet. If putting you in the electric chair is not cruel–it’s hard to imagine anything being cruel and unusual. But I thought about this before we started recording. Now, according to the Scalia doctrine, and he says that you should look at the death penalty, for example, was widely used in colonial times, therefore, no one would have been thinking when they drafted the Constitution, that there’d been a prohibition against states having death penalty. He said that. We played it multiple times. Okay, well, then, by the same token, in Colonial times, no one ever got sent us to any really significant long period of time because, as Scalia pointed out, they got executed. If they did a serious crime, they got executed. So therefore, haven’t they done kind of a flip flop by saying that, because if you’re supposed to look at what happened to colonial times, no one would have gotten a 292-year sentence in Colonial times. So therefore, if you judge what that clause may have meant based on how it would have been understood, at that time, that would have been so absurd. It just would have been unheard of. So but basically, they don’t see it that way. They do an about face when it comes to it.

Andy 36:33
I mean, since you were alive almost back then, in my brain back then there was not a whole prison complex with hundreds of employees, and all that. So it was almost like, if you’re going to get a fairly short sentence for something–you stole some horses–then you’re going to get some amount of time, and you’re going to be a burden on someone to for them to take care of you. And then they’re going to let you go and possibly say get out of my town and don’t ever come back. But now we have this whole, whole complex, the prison industrial complex that locks you up indefinitely, essentially.

Larry 37:12
That is correct. They just executed you back in those times, though.

Andy 37:15
Right, Right. If you did something that extreme, they would, they would just like, we’re not going to deal with you anymore. So we’re gonna get rid of you.

Larry 37:20
Well, they execute they executed for ultimate buyer client crimes back in those days.

Andy 37:26
And then the court also stated the Arizona court of appeals addressed Patsalis’ constitutional claims in a subsection of its decision titled “Cruel and Unusual Punishment.” It discussed Supreme Court precedent addressing sentence proportionality and recognize that Patsalis challenged the cumulative impact of his sentences. But the Arizona Court of Appeals declined to assess the proportionality of Patsalis’ sentence on a cumulative basis because of Arizona’s prohibition against considering the imposition of consecutive sentences in a proportionality inquiry. Did the state consider his arguments, or did they not?

Larry 38:06
Well, it was a difficult read to follow in that regard. But according to the Ninth Circuit, the Arizona court of appeals did by applying the rule against considering the imposition of consecutive sentences into force proportionality inquiry. And considering the facts relevant to sentencing include the number of victims and his criminal history. They rejected his constitutional claims, both state and federal, challenging his sentencing as grossly disproportionate to the crimes.

Andy 38:32
Let’s get out of this case, if you are finished. So it’s important to read on page 17 of the opinion that states “there is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.” And then they went on to say, “where the Supreme Court has not addressed an issue in its holding a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to or an unreasonable application of clearly established federal law.” So in a nutshell, since the US Supreme Court has not ruled on the issue of cumulative or individual basis, it cannot be a violation of clearly established law. Did I get that right?

Larry 39:18
You got it absolutely right. They said, since there has been nothing from the High Court on this, that it can’t be contrary. Now you have to admit that’s actually somewhat rational. If the law says that you that they can’t grant relief, unless it’s contrary to US Supreme Court decision, and precedent, and there is none, it can’t be contrast to something that doesn’t exist, can it?

Andy 39:39
No, but we talked about something recently, where there wasn’t precedent. And it’s like, well, if there’s no precedent, how do you use precedent? How do you get precedent if there’s no precedent? Well, I don’t remember what it was. It was a couple three months ago or something like that. It was like it would be an impossible standard to meet to get some kind of precedent, because there’s no precedent

Larry 40:00
Well, this case will need to go to the Supreme Court.

Andy 40:03
I see. So what’s the solution, do you think?

Larry 40:06
Well, the solution would be to change the AEDPA, or the appointment of more activist judges?

Andy 40:11
Oh, Jesus, we can’t do that, Larry. I know you love it when I ask you this. Who appointed the three judges on the panel in that decision in the Ninth Circuit? I noticed that Judge Christian dissented and would have provided relief. Did you read her opinion? And who is she?

Larry 40:33
I did not read her opinion. I skimmed it, but she was one of the three on the panel. And she would have given him relief. But she was appointed by that old liberal named Obama. But Judge Silver was appointed as a district judge by President Ford. And he was elevated to the Court of Appeals by President George H.W. Bush. And the other appointee, Daniel Force, was appointed by President Trump. So the two who voted to sustain the district judge and say the 292 years is okay and that our hands are tied by AEDPA, were appointed by Team Red.

Andy 41:17
And you hate when I asked you about Team Red versus Team Blue. But here you are bringing it up. You always have this agenda, Larry to point out the Team Red is not in our favor.

Larry 41:31
I’ve only pointing out the facts. Now, it’s not always a fact. But in this particular case, it is the fact that had there been one more like Judge Christian, we might have had a different outcome.

Andy 41:47
All righty, then. Anything else before we backtrack to what I missed up in the in the order?

Larry 41:54
No, I think this was the correlation was with Steven May who has 75 years. And the Ninth Circuit felt it reflects poorly on American judicial system, that he would likely die in prison? Well, 75 years is somewhat less than 292. So I wonder, I want people to know that it’s not just PFRs who get lengthy sentences. I know that you focus on that. But there are a lot of people who get very lengthy sentences, including three strikes laws, and included in consecutive sentencing that is imposed around the country, and particularly in the more conservative states. You would not see anyone sentenced to 292 years in Vermont. It just wouldn’t happen. They don’t think that way in Vermont. It would never occur to them to put somebody in prison for 300 years.

Andy 42:46
But riddle me this–we were talking about the Queen when we first started out–she would have access to the best medical care on the planet. They have millions and millions and millions of dollars to pay for this. And it’s probably just provided for by the royalty there. But a person in prison, obviously doesn’t have access to any of that stuff. How do they give you 292, which was downgraded from 490? There’s no way that a 25-year-old–he might live to in his 70s, possibly 80s in prison. So like just giving the person 100 years would be a death sentence. What’s the rationale of the time they’re giving you 292?

Larry 43:31
Well, the district judge said, the trial judge said that he was trying to send a message to the community. But a message could have been far fully effective, with far less than 292 years. You got a 21-year-old. We all know that 21-year-olds generally aged out of their propensity to commit criminal acts, particularly economically driven crimes like this. And I think it’s just distasteful. But Arizona is a very tough state. And that’s what happens. And I am suggesting that–if I’ve got it right, that it’s King–but you probably ought to stay out of that jurisdiction from the looks of this.

Andy 44:13
All right. Well, then I’m going to set this up. We have four video clips, two little segment A and segment B. Set this up. What’s the first section going to be about?

Larry 44:27
What we’re gonna be talking about the Maricopa County, Arizona District Attorney State’s Attorney, County Attorney, whatever they call it, but the prosecuting attorney for that jurisdiction. The election is coming up, of course, in less than two months. And I would like to show the type of things that are said in advance of elections, and let you the audience decide if these are over the top and this is the current office holder and the challenger. Each one of them are answering the same question, and how they choose to communicate with the public. So, clip one would be from the person who would like to assume the office in Maricopa County and her name is Julie Cunnigle.

Andy 45:16
I hope all my buttons work.

Interviewer 45:21
What is the clearest difference between you and your opponent when it comes to how you would run the county attorney’s office?

Julie Gunnigle 45:27
Sure. The first choice is on the ballot. Now that Roe v Wade has fallen, and that Arizonans are now subjected to a rule from 1864 that creates a mandatory minimum of two years in prison and a max of five for people accessing an abortion and carries with it a little sister misdemeanor rule that criminalizes even the advertisement of contraceptives. It is so important that we have a county attorney who has committed from the outset, to use her discretion to never criminalize people for their reproductive health care decisions. The clearest difference between myself and my opponent is the idea that not now, not ever we will not use the power of the police and prosecutor’s office to invade Maricopa County residents and bedrooms and private lives.

Andy 46:15
Okay, what do you have to say about that, first of all?

Larry 46:18
Well, I felt my opinion was that she was clearly communicating that as a prosecutor that she would not enforce the 1864 law that cares a mandatory two years in prison. That seems to be a fair question to ask a person who’s going to hold the reins of power. And it wasn’t exactly the question she was asked, but how she would pick and choose because prosecutors can’t prosecute every single thing that’s unlawful. So they have to have some type of screening process. So she clearly told Maricopa County residents and voters that the 1864 laws would not be enforced in Maricopa County if she were elected. That’s my reading of that. And then this is the current officeholder coming up next, Rachel Mitchell, she has an answer to the same question.

Andy 47:12
Okay, here’s clip number two.

Unknown Speaker 47:24
Same question for you, Rachel Mitchell. What is the clearest difference between you and Julie Gunnigle?

Rachel Mitchell 47:28
What is on the ballot, Bram, is the safety of our community. I’m a career prosecutor who has worked with the police. Throughout my 30-year career, I’ve spent 25 years protecting women and children. And my philosophy is that we hold people accountable who commits crimes. My opponent, on the other hand, wants to target police officers, has advocated defunding police officers, and also other things such as getting rid of cash bail. Those things are harmful to the community, and they are going to create danger for our citizens.

Andy 48:04
Did she even answer the question that was asked?

Larry 48:08
Well, the audience is going to have to be the judge. But I felt like that that answer was intended to scare people. She uses that buzzword “defund the police.” No one has ever proposed defunding the police–ever, ever, ever. But that is a catchy phrase. And she talked about danger to the community, and then the bail reform. The business side of the bailing bond industry is so adamantly opposed to changing the status quo. And they imply that if you don’t let us charge people, money to get out of jail, that you’ll be in danger. Because if they’re released on any other system, they’ve not been properly screened. But we screen them so well with our money. It sounded like to me that that was intended to scare the voters of Maricopa County. That’s what I heard in that. And that’s what I’m trying to point out to people. The voters are barraged with this type of stuff. And they’re gonna make a decision, come November, of who they want to run that office in Maricopa County. I doubt that Mitchell will enforce the 1864 law, though she did not renounce it. She had the opportunity to say that she would. I find it doubtful that she will enforce the law, but she didn’t really say anything other than if you elect my opponent, you’re going to be unsafe. That’s what I heard in it.

Andy 49:38
Right totally. Yeah, but so tell me Larry, with your political experience, how come no politician anywhere ever answers the question they’re asked?

Larry 49:49
They’re trained not to. They’re told that you have a message. Their handlers tell them that when you go this interview with whatever the situation may be, that we want you to hammer this. And so, it’s just not done. Answering our questions is the silliest thing that you could imagine doing.

Andy 50:09
Okay, well, then let’s move over set up the second block of the two clips that we have. One of them’s kind of long. The other one’s pretty short.

Larry 50:16
Yes, this is our favorite Sheriff actually, from Polk County, Florida. And he is proclaiming how proud he is that he arrested–they call this human trafficking. Now, we used to call it prostitution when someone hires for sexual services, but they were running a human trafficking sting. And they caught an interesting individual. And it almost seems to me like he just relishes in bringing this person’s career to an end to his 30 years of law enforcement experience with a Cartersville police department, which is in Georgia. So roll the video.

Grady Judd 51:02
This is Deputy Chief Jason de Prima of the Cartersville Police Department. As I understand it, after talking to his chief, he’s been there almost 30 years. He’s a graduate of the FBI Academy. A well-respected police officer in town. Did you notice I said in town, but he was out of town. That’s right. He was at an American Polygraph Association meeting in Orlando, Florida. Let me let me say this clearly. I don’t want you to miss it–driving an unmarked vehicle that was normally assigned to the DEA Task Force, meaning their officer assigned to the task force would have driven this vehicle. But apparently his vehicle was not so good to make the trip. So he’s in one of the undercover vehicles when he shows up at our undercover operation in the government vehicle carrying alcoholic beverages. Apparently, some Bud Light for himself and White Claw for our undercover operative.

Andy 52:22
Hey, man, what is White Claw? I’ve never heard of this.

Larry 52:25
I have not the foggiest notion, but it really makes me have trouble sleeping at night to know that an adult man from Cartersville, Georgia, would go to Polk County, Florida, to hook up with an adult woman, and they would drink alcoholic beverages to me. To me–

Andy 52:48
There’s something wrong with doing that? I’m sorry, I haven’t been updated on the social conventions. Is it not allowed anymore?

Larry 52:54
Well, the drinking is certainly lawful, but the paying for sex, he was gonna pay, as the allegation goes. He was hiring this undercover person for a sexual escapade. But now these, this state is known for its wise fiscal management. They’re run by people who proclaim to keep government small and lean and efficient. And this is a search of a problem, a solution in search of a problem. This guy was out of town on business. By all accounts, going to your favorite association of polygraphers.

Andy 53:32
I was going to bring that up to.

Larry 53:35
And he was going to have a paid liaison with an adult. And the Polk County sheriff in Florida, is taking great satisfaction as Sheriff Judd does this all the time. He does a press conference about every week, or sometimes more, about some type of sting and some kind of arrest. And he does this, and it was not anything unusual. But folks in Polk County, they obviously support him because he went through election. And it just seems like such a waste of resources. But yeah, we’ve got we got a second clip with Sheriff Judd.

Andy 54:14
All right. So here’s the second one. This one’s pretty short.

Sheriff Judd 54:19
And let me tell you the story, as he relates it to us. He is texting with–guess what–our undercover detective. He started this conversation with her on Wednesday night where he was going to show up. But he became spooked. He didn’t say why. But on Thursday night, he just couldn’t resist the urge to be with our undercover detective who he thought was a high-class prostitute.

Andy 54:58
And so we’ve had a particular guest on two three times, Kathleen, who covers this, like this is her whole focus in the world is covering the subject. I mean, it’s a natural desire to go have relations with people attractive, whatever, like, and so I’m assuming she was a good-looking lady. And so he looks like he’s a pretty young lad. But Judd just wants to berate him.

Larry 55:29
Well, he does that. That’s his standard operation. When they put on these photos and show. I almost feel bad for the police officer of Cartersville. I mean, I’m not condoning that. He should not have been doing that. But it’s—what the oldest profession that there is?

Andy 55:50
Yes, I believe that is the oldest profession is prostitution.

Larry 55:54
So Sheriff Judd has been in office. He was elected in ‘04. He received 64% of the of vote in a three-way race. He basically ran, might as well say unopposed, in ’08. He had a write-in opponent. And he had a write-in opponent in 2012. And so he got 96% of the vote roughly. Then 2016, he ran for a fourth term, and he got 95% of the vote with another write-in candidate. In 2020, they gave up on challenging him, so he ran unopposed. Apparently, the people in Polk County are very happy with the sheriff. And I tell you that the people that we elect are a reflection of us. Sheriff Judd gets on to Canberra and wins 95% of the vote, because that’s who the people are in Polk County. They’re happy with this.

Andy 56:54
I still wonder, Larry, in the grand scheme of things. Why–similar to marijuana, why wouldn’t we legalize it, regulate it, make sure that it’s safe. Then you don’t have the underground economy. There’s a whole lot of black-market stuff that would go on. There’s going to then be drug dealers and the people extorted. If we made it something of a legitimate profession, then seems like that would go away?

Larry 57:20
Well, oddly enough, there is an organization, I can’t recall the name, but it was at one of the conferences out in Las Vegas, and I got a shirt, a t shirt from them about sex workers and making their life better. But it’s not likely to happen because of a number of things we have such a bias for. There’s a morality bias about sex in this country. And a lot of it’s based on biblicists–it supposed to be between man and wife, and for procreation. And beyond that, then it’s morphed into human trafficking now. They’ve so expanded the definition of human trafficking, that everything that used to be unlawful under one section of law has now been transformed to be a more serious crime. It’s human trafficking. So now that’s what this was a human trafficking operation. And at the beginning of the video, he says we were looking for victims of human trafficking. And in that process, they have to arrest the John’s to find out if they’re victimizing people.

Andy 58:18
And there was no it was an undercover cop. So I mean, I guess he could have said, Yes, I will pay you for the deed. And so I guess that means there was intent and whatever, they have stuff, but there’s technically no victim. It’s not like there was a worker on the other side of that. There was never going to be any illegal activities.

Larry 58:37
Well, other than the pay for sex, which he got the price confused, according to Sheriff Judd, he was confused about how much he owed for it, but he did agree. He did agree, and he brought money into it. There was another part I didn’t ask you to do, but he apparently, according to Sheriff Judd, the detective from Cartersville had apparently been swindled by someone for $200. They told him to go get a card and make a picture of it. And I think you can figure out the rest of what what happened. He had to buy the card to show that he had the money and make a picture of it. And you can figure out what went with the card after they got the number?

Andy 59:17
Okay, jeepers man. Well, I think that’s all we have. And it’s pretty much about the time limit for the show. Anyway, is there anything else to cover here before we get out? I have an announcement that I want to make that I’m going to ask your permission to make the announcement about it first.

Larry 59:35
Well, if you’re going to ask in law live with 1000s of people listening, what choice do I have?

Andy 59:40
You? Well, that’s I already asked you in pre-show if you would do it, if you would entertain communications with people. There, was that vague enough? That’s vague enough. Yes. Okay. And you’ll agree?

Larry 59:53
I agree. We’re going to try to expand the reach of FYP particularly if our transcription service goes. We’ve got a new person trying to do the transcript, and he did a great job for the first episode. So we’ll see how that goes. But if I can free up some time.

Andy 1:00:11
So what we’re going to do is–I will create a new voice channel on the Discord server. And we’ll start it out pretty low, Larry, like maybe at the $5 a month level. So I’m gonna have to figure out how to coordinate with you to make an announcement, but you will go into that voice channel. And if you want to talk to Larry about anything you want to, I’m sure that you’ll put limits on whatever you want to. But if you want to shoot the shit with Larry, then you can go in there and kick it with him and talk about stuff. And maybe it’ll be an hour or two hours, depending on how long Larry can put up with you people. All right. Is that a fair way to announce it?

Larry 1:00:52
That sounds great. Perfect.

Andy 1:00:56
Well, then, without anything else to do that is going to conclude this episode of the fine Registry Matters podcast produced by FYP education. Somebody asked, I still don’t know what FYP meant. Go look in our archives, whatever you want to do, you can go find where it is. I’m not telling you what it is. And so you find all the show notes over at Registry Matters do co, or FYP education is where you’ll find the transcripts produced by our fine new person. And you can leave a voicemail at 747-227-4477. And email registrymatterscast@gmail.com. And if you want to join in on the new Chatting with Larry, be sure you sign up at the $5 month level at patreon.com/registry-matters. I think that’s all I have for the night, Larry. And I hope that you have a splendid, fantastic rest of your weekend and I will talk to you soon.

Larry 1:01:51
Thanks. I’ll see you in a week or so.

Announcer 1:01:53
Bye. You’ve been listening to FYP.

Announcer  00:00

Registry Matters is an independent production. The opinions and ideas here are that of the host and do not reflect the opinions of any other organization. If you have problems with these thoughts, F.Y.P.

Andy  00:17

Recording live from FYP studios, east and west, transmitting across the internet. This is episode 237 of Registry Matters. Good evening, fine sir. How are you?

Larry  00:28

Doing awesome. How are you?

Andy  00:30

I’m very well. You made it another week.

Larry  00:33

Isn’t that amazing?

Andy  00:34

That is pretty amazing.  Speaking of making it another week, somebody else didn’t quite make it another week. Do you have anything to say?

Larry  00:43

Someone who didn’t make it another week?

Andy  00:46

Yeah, that would be the queen. 

Larry  00:48

Well…

Andy  00:49

Charles is probably upset.

Larry  00:50

She only made it 96 years.

Andy  00:55

But in pre-show, we talked about the reign of leadership, whatever. Like there was a pope that made it how long?

Larry  01:05

28 days?

Andy  01:08

That’s not very long. That is not very long at all.

Larry  01:13

Yeah, so we were testing my memory, and nobody googled it. So I think he lasted 28 days.  I think he was proclaimed Pope in ‘78. And I think his name was John Paul, the first. I think he originated from Poland.

Andy  01:31

And are we talking about like in the 1800s? Or is that roughly. Is this somewhere in your tenure of life?

Larry  01:39

We talked about 1978.

Andy  01:41

Oh, that’s not that long ago. I was even a hatchling by then.

Larry  01:47

So yeah. So he preceded John Paul the Second, who lasted quite some time.

Andy  01:52

Right. And he’s the one that in the modern era, like he was almost like the Queen, for he was there for forever. And he ended up with like, the Popemobile, with a little bubble over his vehicle, I believe, because there was an assassination attempt on him.

Larry  02:08

That is correct. You have a great memory.

Andy  02:12

Well, tell me what we are going to do tonight, Sir.

Larry  02:16

Well, we’re going to offer some condolences for someone who was lost in a prison in North Carolina, I think just yesterday. We’re going to play some audio video clips from YouTube. And we’re going to take a question from one of our long-term listeners. And we’ve got an analysis to do with that question that’s pretty thorough. And we’ve got a great decision from the Ninth Circuit that illustrates what’s wrong with the Anti-terrorism and Effective Death Penalty Act of 1996.

Andy  02:54

Man, all right, well, sounds like we’re going to have a great show ahead of us. And before we get going too far on this, I will say make sure that you go over to the YouTubes and press the like and subscribe and hit the bell to notify, and that’ll start spreading the FYP registry matters juice all over the place. And that’s definitely what we want to have happen, isn’t it?

Larry  03:14

It is indeed. We picked up in the last episode, I think at least 15 or 20 new YouTube subscribers, which is an unusual high number for us.

Andy  03:23

Well, considering that the title of it–I wouldn’t say it was like super click baity–but it was definitely like the amazing defeat or whatever I wrote, as far as the title goes–crushing defeat in Pennsylvania.

Larry  03:37

Well, I’m sure that that caused some people to click, but it was a crushing defeat. It really was.

Andy  03:42

I agree. And so that generated a lot of buzz and a lot of traffic. Anyway, I appreciate it. So make sure that you share the podcast and tell everyone you know. I did I’ll give you a quick update on this, that maybe I should say to them, but I contacted Securus or whomever is running the tablet stuff in the prison. And I’ve had minor email conversations back and forth. And I did get a reply. And they said, go over here and do it. So maybe we’ll end up in prisons, maybe. That would be pretty big. I think that would be super significant for us to get to the PFR community that is still locked up and get them listening to the podcast.

Larry  04:18

Well, that would be so awesome, because we are looking at the transcription service as far as the distribution arm. The printing will always be doing the transcript for the website. But since the circulation is at such a low level, we may have to reevaluate the viability of that so it’d be great if they could actually listen.

Andy  04:39

Yep, absolutely. Well, so first up on the roster would be that this last-minute news came in and it is “Central prison on lockdown after inmate beat convicted PFR to death.” Oh my god. So this is in North Carolina, right?

Larry  0:5:07 

Raleigh.

Andy 05:09

Raleigh.  And so he was pretrial. Is that what I read in the article, Larry?

Larry  05:06

You read it correctly. It’s very sad that–I’m just going to go ahead and offend the prison audience. You filed every writ that you can, and you assert your constitutional rights. And yet, prisons are the most unforgiving places when it comes to respecting anyone’s constitutional rights. This man was pretrial, and he did apparently have previous convictions, for PFR type stuff. But he was put in a prison because the county didn’t think they could keep him safe. And he was beaten. His name was–let’s not leave him nameless–his name is Ronald Rhodes. And he was beaten by other inmates Friday morning in the recreation yard, according to North Carolina Department of Public Safety. I guess all we can do is what is standardly done is thoughts and prayers for the family. But I’m really, really upset about this.

Andy  06:03

I completely understand. So I mean, is there anything else besides this?

Larry  06:10

We don’t really know much other than this, but I found it so sad that of all places, when someone comes into a prison or jail, which is what he was in for was for, for pretrial detention, you should afford them the benefit of the presumption of innocence that our constitution is supposed to afford everybody. And I say that regardless of the offense, regardless of if it’s a police officer, regardless of if they do something that we see on camera–there may be a defense that’s viable. Therefore, they’re presumed innocent.

Andy  06:45

Gotcha. So the one thing in here that I wanted to bring up with you is that Rhodes was being houses in the prison as a “safe keeper,” at the request of Wake County and the “safe keeper” is generally an offender who is housed at a state prison before trial, so I’m going to assume he was not afforded bond, and that he is just in a pretrial detention type deal, but they have it worded differently.

Larry  07:09

So yes, I have not seen that term safe keeping. But that would be not unusual if a local lockup doesn’t feel like they can keep him safe, based on a high level of community awareness. You can’t keep the word– you can’t keep people’s stuff secret now, in this modern era that we’re living in. Therefore, it’s difficult to do anything other than try to move them to a facility where hopefully their offense won’t be so easy to discern, but it just didn’t work. He was still–

Andy  07:39

Clearly it didn’t work. I mean, there is like the chain-gang-hotline.  I mean, all you do is like, hey, this person came in, and their family will go look them up, and they’ll tell you who the person is. And then everything goes to like, you’re just at the whim of everyone in there to do what they want to do to you.

Larry  07:59

Well, like I say, I’m sad about it.

Andy  08:03

All right. Well, then let’s move over to this listener question, which is probably going to consume almost the rest of the podcast. And so we have this question that reads and it’s from Moses, as you said. Seriously, Moses 10 tablets guy, remember the 10 Commandments guy?

Larry  08:18

Moses is actually the guy’s name. 

Andy  08:22

All right. “I have a question about the Full Faith and Credit Clause in the United States Constitution. If this provision means anything, how can a person be subjected to separate punitive restrictions based on which state they reside? If one migrates to a new state, they are subjected to the laws of that state, which doesn’t seem right. Shouldn’t each state recognize once one’s punishment is completed in another location.  This would be similar to one state recognized in other states driver’s license or marriage license. It seems to me that if state A imposes a 10-year period of registration, all other states should be bound by that under the Full Faith and Credit Clause. I’ve been listening to you two babble for years now, and I’m confident you will have some way to justify this as being constitutional.” Alright, so I like this question a lot, including the snark. And would you be so kind, sir, and explain to me what the full faith and credit clause is?

Larry  09:22

Well, the Full Faith and Credit Clause? I’ll just read it: “ Full Faith and Credit shall be given in each state, to the public acts, records, and judicial proceedings of every other state. And the Congress may, by General Laws, prescribe the manner in which such acts records and proceedings shall be proved and the effect thereof.” That’s in Article Four, Section One of the United States Constitution.

Andy  09:52

So Article Four, Section One of the United States Constitution. And why is that clause there? What does it do? What do we do man?

Larry  10:00

Well, I decided to do that research, and I went to a reputable source called the Heritage Foundation. Okay, the Heritage Foundation would never mislead us. 

Andy 10:22

No. 

Larry 10:24

And they say “an essential purpose of the Full Faith and Credit Clause is to assure that the courts of one state will honor the judgments of the courts of another state, without the need to retry the whole cause of action. It was an essential mechanism for creating a union out of multiple sovereigns.” And again, that’s available at the Heritage Foundation’s guide to the Constitution.

Andy  10:41

All right. So now we’ll move on to the issue of registration of offenders and how this clause might be applied. Does this person theory have any merit?  Is one state changing another state’s sentence?

Larry  10:57

Possibly, but it’s crucial to understand that many who were registered, engaged in underlying conduct prior to the existence of registration. And by the very nature of that situation, it would be clear that the sentencing court did not order a person to register at the time the person’s sentence was imposed, and certainly did not specify a period of registration per se.

Andy  11:18

But we could take a whole big detour and talk about the Kennedy-Mendoza. And it’s a civil regulatory scheme, therefore, it’s not punishment, blah, blah, blah.  We could go down that whole path.

Larry  11:30

We will. We will get there as this progresses.

Andy  11:34

All right. Well, then the courts have upheld the retroactive imposition of offenders’ registration as a non-punitive civil regulatory scheme. And I thought you have stated repeatedly that regulatory schemes cannot be, or excuse me, can be changed.  They can be changed retroactively.

Larry  11:48

Yes, those truly civil regulatory schemes can’t be imposed retroactively without violating the Ex Post Facto Clause when they’re remedial in nature. Unfortunately, most registration schemes as they exist throughout the United States today go far beyond what anyone could be objectively considering as non-punitive.

Andy  12:08

And does he have a point in terms of those who committed their offense after the existence of registration?

Larry  12:15

Maybe. Most offenders who engaged in conduct and who have been sentenced since the creation of registration schemes generally were apprised by their sentencing court of the duty to comply with offender registration. But this is still not the same thing as having a particular period of time prescribed in the sentencing order.

Andy  12:36

Have you ever seen a sentence order where the actual registration period was prescribed?

Larry  12:42

Yes, I actually have. I’ve seen some rare situations where the sentencing order does prescribe a particular period of registration. In those situations, the person might have legitimate legal claim that they were imposed by the court and the original jurisdiction should be final and binding of all states.

Andy  12:57

In those cases, were they exceeding or were they reducing the amount of registration.

Larry  13:03

They were not doing either. They were just putting down on paper how long the person would be required to register. But those were anomalies. Because as we have generation one, generation two, as the registries have been enhanced and extended, those practices of putting a particular time in there have long since vanished. But in the early days of registration, when we had much more lenient terms for registration, but shorter terms. I’ve seen a few that actually included the amount of time that the person would have to register.

Andy  13:39

Have you seen anybody challenge it when they put the registration obligation there in the sentence?

Larry  13:48

To my knowledge, there hasn’t been any appellate case law. But yes, I have seen in an instance, where there was a particular time that the person moved for enforcement of the judgment, but they had not left the original state. And the enforcement of the judgment did occur because it was deemed to be a binding contract and a binding order of the court. It was in the plea agreement. It was a binding order of the court. But the only way to find out if this was a credible argument would be to develop a case asserting the Full Faith and Credit Clause.

Andy  14:19

So has there been a challenge like that?

Larry  14:24

Not that I’m aware of, no.

Andy  14:27

Okay. What would you expect such a challenge to be if there was one wanting to be brought?

Larry  14:32

Well, we can be certain that the Attorney General of the State would fight vehemently to extinguish the person’s case. They would argue that since the registry is a non-punitive civil regulatory scheme, they can impose their own requirements independent of the state where the underlying conduct occurred. That’s, that’s just got to be their first line of defense is, you know, this is civil, remedial and non-regulatory. And we can do this, and we don’t care what happened in Georgia. This is not Georgia. This is Iowa.

Andy  14:59

I still will really struggle to find, unless we’re talking about the super easy states where you’re not on a public website, and there’s very little quote-unquote disabilities and restraints, how anybody could honestly, with integrity say, that it is not punishment. There are so many things that go with it that can put you immediately in harm’s way.

Larry  15:25

Well, they can say that because on the last standing order that’s precedential, in that jurisdiction– if there has been no termination in a jurisdiction that registration is punitive. Like, for instance, in my state, there’s been no determination that our registry is punitive. Therefore, you can say it with a straight face because the controlling case law is that it’s not punitive.

Andy  15:44

Gotcha. How would they justify their position since that clause, the Full Faith and Credit Clause, seems so clear?

Larry  15:52

Well, they would cite to other examples of civil regulatory requirements that change from state to state. For example, some vehicles are exempt from pollution inspection in sparsely populated states. And that exemption does not transfer to the new state. So that’s what they would say they would say: Your Honor, this is just bogus. I mean, clearly, this is a civil regulatory scheme, as far as New Mexico Supreme Court has said, and whatever they may have had in Pennsylvania is irrelevant in our state, because ours is not punitive. And therefore, we can change it just like we would do on any other civil regulatory scheme.  You may have been exempt from paying for a driver’s license.  You’re no longer exempt when you come here, or vice versa.

Andy  16:33

But when you do go to another state, you follow that state’s registry stuff, don’t you? 

Larry 16:38

That is correct. 

Andy 16:40

Okay, Okay. And so then do you think the legislature would get involved if someone filed one of these cases?

Larry  16:50

I think at some point, that very much could happen, particularly if the argument is gaining traction.  More states would amend the registration laws to include a clause that imposes the greater of the duration required in the state of conviction or their state. And in fact, there’s some states that already have that clause in their statutory schemes. I came to realize that Iowa has that and so does Utah.

Andy  17:20

And so we talked about, almost like plaintiff shopping, who do you think a good plaintiff for a case like this? Who do you think that person would be? What would their profile be?

Larry  17:31

I think would be an individual who does have a specified period of registration, prescribed in their sentencing order. And then the second-best candidate would be a person who had a defined period of registration spelled out in their plea agreement. That person would be in a stronger position to argue that the agreement should be enforced as a binding contract.

Andy  17:52

And if it was actually in the plea agreement, that person would be in a stronger position to argue that the agreement should be enforced, wouldn’t it?

Larry  18:00

I think, I certainly think they are because these have been deemed to be contracts. But the situation is a bit murkier, because the new state would counter by claiming that they cannot be bound by an agreement made by an official another jurisdiction, which is what I mentioned earlier, that where there was a particular time, it was enforced in this jurisdiction, because it was a contract made by a New Mexico official, who was authorized to act on behalf of the State in being the district attorney, or the associate District Attorney. But this would indeed be a very unique and interesting legal challenge if someone were to do this. And Moses has really tantalized me with this question.

Andy  18:37

And while you clear your throat for a minute, so someone in chat says isn’t a driver’s license a civil regulatory scheme. So if you go to another state, do you get forced to go get a new driver’s license?

Larry  18:51

You do at some point, if you’ve been in that state, long enough, generally like 30 days, you would have to get a new driver’s license if you’re going to be there beyond a certain point.

Andy  19:01

I recall, and this could have been hearsay that when I was in the military, and I got stationed somewhere, they said that you didn’t have to change your driver’s license, because you’re permanently temporarily there. So you’re going to change duty stations in a little while, so why keep making you go change your driver’s license? And you just keep your driver’s license from your home state through the umpteen 100 years that you’re in the military.

Larry  19:25

There may be such an exception for military.

Andy  19:28

All right. Is there anything else that you wanted to cover here? It’s an interesting question.

Larry  19:36

It is. I really think that someone may be able to bring such a challenge, and we may be able to get some traction.

Andy  19:43

And Brenda says military special indeed. Yes. Very, very special, like Shortbus special, Brenda.

Larry  19:49

Shortbus special.

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Andy  20:38

Well, then you also put this case in here from the Ninth Circuit Court of Appeals named Atdom Patsalis. Why do you put these– like I can read in some really complicated words, Larry–, but this one—Atdom Patsalis versus David Shin. And it was just a few days ago that the decision came out. And I remember a case that was named May versus Ryan, which later became May versus Shin. Why do so many people sue Mr. Shin?

Larry  21:09

They still have insufficient capacity as Attorney General of Arizona.

Andy  21:14

What part of Arizona is this case from?  We just did the clip from–no we haven’t done the clip for Maricopa County yet.

Larry  21:24

Yeah, we kind of got them out of order. I thought we were gonna do that clip first. 

Andy  21:26

Then I goofed up.  I’m sorry. 

Larry  21:31

But yeah, we can do we can do those later. We’ve got this one from Mojave County, which I think is Kingman, Arizona.

Andy  21:41

So what’s the issue here?  I’ve read it thoroughly. And I see no connection as usual to PFR issues.  You do realize that FYP’s time is valuable?  Like I’m on the clock here and you better bring me some juicy stuff, or else I’m shutting you down.

Larry  21:56

I do recognize our time is valuable, but it does have a connection to PFR issues as it relates to the federal Habeas Corpus proceedings, and the Anti-terrorism and Effective Death Penalty Act of 1996. And it’s very similar to Steven May’s case, which we have discussed on previous episodes.

Andy  22:14

Well, can you summarize it? Be brief, Larry, don’t use many words. Use few words. Can you describe what this case is about?

Larry  22:26

Sure. Mr. Patsalis, I think it’s the way you pronounce it, sought federal habeas relief, arguing that his 292-year sentence imposed by an Arizona State Court is grossly disproportionate to his crime and constitutes cruel and unusual punishment and violation of the federal and Arizona Constitution. Is that concise enough?

Andy  22:49

I suppose. So he was convicted of how many felonies, Larry? Larry, I want you to say it.

Larry 23:04

25.

Andy 23:05

Twenty-five, mostly residential burglaries committed against multiple victims over a three-month period. He was very active–I’m assuming houses or apartments. And it was noted that these were not his first crimes. The trial court imposed consecutive sentences and consecutive is not concurrent, meaning they got one after the other after the other on all but two of the 25 counts, resulting in an overall sentence of 292 years imprisonment. And can you at least admit that that has to be cruel and unusual punishment, Larry?

Larry  23:35

No, I can’t.

Andy  23:38

Alright, so let’s give a little bit of some background on the petitioner’s case. He committed a series of burglaries over a three-month period when he was 21 years old. He was offered a two alternative plea deals. The trial judge explained to him that the deals and that he faced up to 490 years.  Hey, they downgraded from the 490 down to 292 later. That’s not a bad deal. He faced up to 490 years imprisonment if he went to trial. He rejected the plea offer, went to trial, and a jury convicted him on 12 counts of burglary in the second degree, 10 counts of burglary in the third degree, theft of a credit card, unlawful means of transportation, and an attempt at unlawful means of transportation. Does this mean like carjacking?

Larry  24:23

Probably not. I wasn’t able to get a lot of detail from the Arizona court decision, but he probably just stole their vehicles after he broke into them. 

Andy  24:32

And so then the jury also found two or more aggravating circumstances on all but two counts of convictions. I know you people will say he should have taken the plea.

Larry  24:43

Well, I might, or I might not. It was again not clear what they had offered him. It would depend on what they offered him. 

Andy 25:05

They could have offered him concurrent. 

Larry 25:07

Well, if they offered him something that would allow him to be free again.  He will now die in prison, barring any changes in Arizona law. But had they offered him anything that would give him some reasonable assurance of freedom, then I would look at the strength of the case as it existed. And he had confessed. That was an Arizona State Court decision that I reviewed. So being that he had confessed, I would have encouraged him to take a plea that would have gotten him out of prison. Yes, but not knowing what the plea offer was, I don’t know if I can say that.

Andy  25:30

At sentencing, the trial judge found that Patsalis was a category three, repetitive offender because he had two prior felony convictions. The judge also considered Patsalis’ lack of empathy for his victims, that his victims included elderly, retired people, that his crimes were premeditated, that he was not under the influence during the commission of any of his crimes, and that his prior incarcerations had not deterred him from continuing to engage in criminal conduct. Why did they merge the counts, though? That’s really troubling.

Larry  26:05

Well, because there was no plea agreement, which left sentencing pretty much wide open. The judge rejected Patsalis’ argument that the 25 offenses were part of a continuous spree because he committed them over three months, which is what he was arguing. Exactly what you’re saying, they should merge. It was one criminal episode. But the judge said that that gave him plenty of time to reflect upon his conduct, and not to continue. So therefore, they didn’t merge because the law in Arizona is structured the way it was, and he had nothing to protect him at sentencing because he went to trial. Remember, he did what you encourage everybody to do.

Andy  26:41

And before we go much further, I would like to get an explanation on why this case went to federal court. If he wasn’t, if he wasn’t robbing houses in multiple states, which I still think wouldn’t be federal, how does he end up that Arizona bumped this up and had him tried in a federal court.

Larry  27:03

Well, it ends up there because of the US Constitution. There’s a procedure after the states, after everything’s been exhausted in the state that you can argue in federal court that your US constitutional rights were violated. And the federal courts can overturn a state court conviction using habeas corpus as the mechanism or vehicle.

Andy  27:24

And so in other countries, Larry, they have almost like caps on the number of years. You could go almost like–I don’t want to use super gross terms—but there was a guy like in the early 90s, that he went and did a massive killing spree in maybe Sweden, Switzerland, Finland, somewhere up that way. And his maximum sentence was like 21 years, and he killed like 50 or 60 people. And I know that he did not get out of prison because they kept extending it. But the initial sentence was that he could only receive like a max. Apparently, the United States does not have any sort of maximum.

Larry  28:01

Well, some states do, but again, this is bright red Arizona.

Andy  28:09

And I read that when he went to trial, and this means that he would have had a right to have his conviction reviewed by a state appellate court?

Larry  28:16

That is correct. But the Arizona court of appeals rejected his constitutional claims.  They concluded that extremely lengthy finish should be assessed based on each individual conviction and sentence, not a cumulative effect of two consecutive sentences. As a result, they found that none of Patsalis’ individual sentences were disproportionate.

Andy  28:40

So if we did 25 divided by 292, he got, what 15ish years for each one. So that’s not, on their own, an unreasonable amount of time for each one. But then they said they would only evaluate this–15 years, no big deal. Let’s look at the next one–15 years. And then they just go down the line, and 25 times they say 15 years, no big deal. Did he appeal that decision to the Arizona Supreme Court?

Larry  29:08

He did, and they denied review.

Andy  29:11

Oh, my God. So then he sought to have habeas relief under 28 US Code Statute 2254. Did I read that right?

Larry  29:20

Section 2254. But that’s great.

Andy  29:22

I’ll get it right eventually. I remember you have talked about AEDPA, which is the anti-something terrorism and Protection Act or something execution. And what does it do again, AEDPA?

Larry  29:33

Anti-terrorism and Effective Death Penalty Act?

Andy  29:37

Okay. And so we’ve talked about AEDPA in the past, and you’ve indicated that the petitioner must exhaust all state court remedies before going into federal court. Does the Arizona Court of Appeals decision meet the definition of exhaustion?

Larry  29:52

Yes, because the State Supreme Court did not review.

Andy  29:56

And so he filed the 2254. And what is that? Can you explain?

Larry  30:02

Yes.  It’s the section of the federal law that governs Habeas Corpus proceedings filed by those challenging some aspect of their conviction on a federal constitutional ground, and they’re challenging a state conviction. So that that’s the section of federal law they use.

Andy  30:18

I see. And so you said the reasons we are covering this is because of AEDPA. Can you briefly explain what that does and what it is and all that?

Larry  30:27

Sure, the anti-terrorism and effective death penalty act of 1996 was passed by Congress, to deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes. To accomplish this goal, some of AEDPA provisions include increasing penalties for crimes involving explosives or terrorism and providing restitution for victims of terrorism and setting new legal procedures for capital cases. That’s one part of AEDPA.

Andy  31:00

And there was a provision in the AEDPA that severely restricts federal judges in terms of their authority to overturn state court convictions. Can you briefly explain that?

Larry  31:11

Yes, and I borrowed this from Cornell University Law. The ad habeas provision is codified as 22. US Code. Section 2254. It includes a statute of limitations for habeas corpus claims, and restrictions on a habeas petition’s ability to file a second habeas petition, and section 2254 D narrowed the grounds on which successful habeas claims can be made, while allowing claims only to succeed when the state court decisions–listen carefully—One, was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or Two, was based on an unreasonable termination of the facts in light of the evidence presented in the state court proceeding. So it’s pretty narrow. You’ve got to be able to cite to a US Supreme Court precedent.

Andy  32:08

Alright, so this is making a little bit more sense. His primary argument to the habeas judge was that there should have been no deference to the Arizona Court of Appeals. Did I get that right?

Larry  32:18

You did. He argued that AEDPA deferential standard of review does not apply to the Arizona Court of Appeals’ decision because that court did not consider the cumulative impact of his sentence. He argued that he was entitled to a de novo, which means a new review of this claim without any deference.

Andy  32:38

And the district court disagreed and afforded AEDPA deference to the Arizona court and concluded that Patsalis is not entitled to relief. What did the Ninth Circuit decide?

Larry  32:50

They agreed and affirmed the District Court.

Andy  32:54

All right, well, then let’s get more into his AEDPA  deference. Without that nuance in the ‘98 AEDPA, the Federal habeas court could have granted him some relief?

Larry  33:06

That is correct. But now they have this tough standard. And according to the Ninth Circuit, and I’m going to read from what they said: “a decision is not objectively unreasonable, just because it is incorrect, or even clearly erroneous.” And they cited some cases that support that. And that is, then they go on to say that “even a strong case for relief does not mean a state courts contrary conclusion was unreasonable.” And then they cited Harrington versus Richter from 2011. So sorry, I hope you guys heard what, even if it’s incorrect or clearly erroneous, that’s not enough.

Andy  33:43

But don’t only want the states to be able to control their own court systems anyway. They’re the sovereign, blah, blah, blah. So they can’t–you don’t just want the federal government to go in and overrule everything.

Larry  33:55

That is correct. That’s what the Conservatives used as an argument for this particular section, where they did the habeas insertion into the AEDPA 96. They argued that these lifetime-appointed judges who are accountable to no one, come in and just steamroll the state courts, with the vast power of the federal government, letting vicious criminals go free on the flimsiest of grounds, and we needed to have finality with the state courts, unless there was some astronomically absurd thing that went wrong, and it’s just almost impossible to thread the needle through the AEDPA.

Andy  34:35

But doesn’t 292 say something about something completely egregious.

Larry  34:42

Ah, no, that’s what you suggest.

Andy  34:45

I see. All right. Well, and I read through this Arizona court of appeals did not specifically rule on the constitutionality of the 292 years, which he argued was cumulatively cruel and unusual. It is certainly unusual, Larry.

Larry  35:00

It is. He did indeed argue that he presented an Eighth amendment claim and a state constitution claim to the Arizona courts asserting that the cumulative impact of incidences was cruel and unusual because they violated the prohibition against sentences that are disproportionate to the crime committed. But no dice. Cruel and unusual is a tough standard to meet. If putting you in the electric chair is not cruel–it’s hard to imagine anything being cruel and unusual. But I thought about this before we started recording. Now, according to the Scalia doctrine, and he says that you should look at the death penalty, for example, was widely used in colonial times, therefore, no one would have been thinking when they drafted the Constitution, that there’d been a prohibition against states having death penalty.  He said that. We played it multiple times. Okay, well, then, by the same token, in Colonial times, no one ever got sent us to any really significant long period of time because, as Scalia pointed out, they got executed. If they did a serious crime, they got executed. So therefore, haven’t they done kind of a flip flop by saying that, because if you’re supposed to look at what happened to colonial times, no one would have gotten a 292-year sentence in Colonial times. So therefore, if you judge what that clause may have meant based on how it would have been understood, at that time, that would have been so absurd. It just would have been unheard of. So but basically, they don’t see it that way. They do an about face when it comes to it.

Andy  36:33

I mean, since you were alive almost back then, in my brain back then there was not a whole prison complex with hundreds of employees, and all that. So it was almost like, if you’re going to get a fairly short sentence for something–you stole some horses–then you’re going to get some amount of time, and you’re going to be a burden on someone to for them to take care of you. And then they’re going to let you go and possibly say get out of my town and don’t ever come back. But now we have this whole, whole complex, the prison industrial complex that locks you up indefinitely, essentially.

Larry  37:12

That is correct. They just executed you back in those times, though.

Andy  37:15

Right, Right. If you did something that extreme, they would, they would just like, we’re not going to deal with you anymore. So we’re gonna get rid of you.

Larry  37:20

Well, they execute they executed for ultimate buyer client crimes back in those days.

Andy  37:26

And then the court also stated the Arizona court of appeals addressed Patsalis’ constitutional claims in a subsection of its decision titled “Cruel and Unusual Punishment.” It discussed Supreme Court precedent addressing sentence proportionality and recognize that Patsalis challenged the cumulative impact of his sentences. But the Arizona Court of Appeals declined to assess the proportionality of Patsalis’ sentence on a cumulative basis because of Arizona’s prohibition against considering the imposition of consecutive sentences in a proportionality inquiry. Did the state consider his arguments, or did they not?

Larry  38:06

Well, it was a difficult read to follow in that regard. But according to the Ninth Circuit, the Arizona court of appeals did by applying the rule against considering the imposition of consecutive sentences into force proportionality inquiry. And considering the facts relevant to sentencing include the number of victims and his criminal history. They rejected his constitutional claims, both state and federal, challenging his sentencing as grossly disproportionate to the crimes.

Andy  38:32

Let’s get out of this case, if you are finished.  So it’s important to read on page 17 of the opinion that states “there is no clearly established law from the Supreme Court on whether Eighth Amendment sentence proportionality must be analyzed on a cumulative or individual basis when a defendant is sentenced on multiple offenses.” And then they went on to say, “where the Supreme Court has not addressed an issue in its holding a state court adjudication of the issue not addressed by the Supreme Court cannot be contrary to or an unreasonable application of clearly established federal law.” So in a nutshell, since the US Supreme Court has not ruled on the issue of cumulative or individual basis, it cannot be a violation of clearly established law. Did I get that right?

Larry  39:18

You got it absolutely right. They said, since there has been nothing from the High Court on this, that it can’t be contrary. Now you have to admit that’s actually somewhat rational. If the law says that you that they can’t grant relief, unless it’s contrary to US Supreme Court decision, and precedent, and there is none, it can’t be contrast to something that doesn’t exist, can it?

Andy  39:39

No, but we talked about something recently, where there wasn’t precedent. And it’s like, well, if there’s no precedent, how do you use precedent? How do you get precedent if there’s no precedent? Well, I don’t remember what it was. It was a couple three months ago or something like that. It was like it would be an impossible standard to meet to get some kind of precedent, because there’s no precedent

Larry  40:00

Well, this case will need to go to the Supreme Court.

Andy  40:03

I see. So what’s the solution, do you think?

Larry  40:06

Well, the solution would be to change the AEDPA, or the appointment of more activist judges?

Andy  40:11

Oh, Jesus, we can’t do that, Larry. I know you love it when I ask you this.  Who appointed the three judges on the panel in that decision in the Ninth Circuit? I noticed that Judge Christian dissented and would have provided relief. Did you read her opinion? And who is she?

Larry  40:33

I did not read her opinion. I skimmed it, but she was one of the three on the panel. And she would have given him relief. But she was appointed by that old liberal named Obama. But Judge Silver was appointed as a district judge by President Ford. And he was elevated to the Court of Appeals by President George H.W. Bush. And the other appointee, Daniel Force, was appointed by President Trump. So the two who voted to sustain the district judge and say the 292 years is okay and that our hands are tied by AEDPA, were appointed by Team Red.

Andy  41:17

And you hate when I asked you about Team Red versus Team Blue. But here you are bringing it up. You always have this agenda, Larry to point out the Team Red is not in our favor.

Larry  41:31

I’ve only pointing out the facts. Now, it’s not always a fact. But in this particular case, it is the fact that had there been one more like Judge Christian, we might have had a different outcome.

Andy  41:47

All righty, then. Anything else before we backtrack to what I missed up in the in the order?

Larry  41:54

No, I think this was the correlation was with Steven May who has 75 years. And the Ninth Circuit felt it reflects poorly on American judicial system, that he would likely die in prison? Well, 75 years is somewhat less than 292. So I wonder, I want people to know that it’s not just PFRs who get lengthy sentences. I know that you focus on that. But there are a lot of people who get very lengthy sentences, including three strikes laws, and included in consecutive sentencing that is imposed around the country, and particularly in the more conservative states.  You would not see anyone sentenced to 292 years in Vermont.  It just wouldn’t happen. They don’t think that way in Vermont.  It would never occur to them to put somebody in prison for 300 years.

Andy  42:46

But riddle me this–we were talking about the Queen when we first started out–she would have access to the best medical care on the planet. They have millions and millions and millions of dollars to pay for this. And it’s probably just provided for by the royalty there. But a person in prison, obviously doesn’t have access to any of that stuff. How do they give you 292, which was downgraded from 490? There’s no way that a 25-year-old–he might live to in his 70s, possibly 80s in prison. So like just giving the person 100 years would be a death sentence. What’s the rationale of the time they’re giving you 292?

Larry  43:31

Well, the district judge said, the trial judge said that he was trying to send a message to the community. But a message could have been far fully effective, with far less than 292 years. You got a 21-year-old. We all know that 21-year-olds generally aged out of their propensity to commit criminal acts, particularly economically driven crimes like this. And I think it’s just distasteful. But Arizona is a very tough state. And that’s what happens. And I am suggesting that–if I’ve got it right, that it’s King–but you probably ought to stay out of that jurisdiction from the looks of this.

Andy  44:13

All right. Well, then I’m going to set this up. We have four video clips, two little segment A and segment B. Set this up. What’s the first section going to be about?

Larry  44:27

What we’re gonna be talking about the Maricopa County, Arizona District Attorney State’s Attorney, County Attorney, whatever they call it, but the prosecuting attorney for that jurisdiction. The election is coming up, of course, in less than two months. And I would like to show the type of things that are said in advance of elections, and let you the audience decide if these are over the top and this is the current office holder and the challenger. Each one of them are answering the same question, and how they choose to communicate with the public. So, clip one would be from the person who would like to assume the office in Maricopa County and her name is Julie Cunnigle. 

Andy  45:16

I hope all my buttons work.

Interviewer  45:21

What is the clearest difference between you and your opponent when it comes to how you would run the county attorney’s office?

Julie Gunnigle  45:27

Sure. The first choice is on the ballot. Now that Roe v Wade has fallen, and that Arizonans are now subjected to a rule from 1864 that creates a mandatory minimum of two years in prison and a max of five for people accessing an abortion and carries with it a little sister misdemeanor rule that criminalizes even the advertisement of contraceptives. It is so important that we have a county attorney who has committed from the outset, to use her discretion to never criminalize people for their reproductive health care decisions. The clearest difference between myself and my opponent is the idea that not now, not ever we will not use the power of the police and prosecutor’s office to invade Maricopa County residents and bedrooms and private lives.

Andy  46:15

Okay, what do you have to say about that, first of all?

Larry  46:18

Well, I felt my opinion was that she was clearly communicating that as a prosecutor that she would not enforce the 1864 law that cares a mandatory two years in prison. That seems to be a fair question to ask a person who’s going to hold the reins of power. And it wasn’t exactly the question she was asked, but how she would pick and choose because prosecutors can’t prosecute every single thing that’s unlawful. So they have to have some type of screening process. So she clearly told Maricopa County residents and voters that the 1864 laws would not be enforced in Maricopa County if she were elected. That’s my reading of that. And then this is the current officeholder coming up next, Rachel Mitchell, she has an answer to the same question.

Andy  47:12

Okay, here’s clip number two. 

Unknown Speaker  47:24

Same question for you, Rachel Mitchell. What is the clearest difference between you and Julie Gunnigle?

Rachel Mitchell  47:28

What is on the ballot, Bram, is the safety of our community. I’m a career prosecutor who has worked with the police. Throughout my 30-year career, I’ve spent 25 years protecting women and children. And my philosophy is that we hold people accountable who commits crimes. My opponent, on the other hand, wants to target police officers, has advocated defunding police officers, and also other things such as getting rid of cash bail. Those things are harmful to the community, and they are going to create danger for our citizens.

Andy  48:04

Did she even answer the question that was asked?

Larry  48:08

Well, the audience is going to have to be the judge. But I felt like that that answer was intended to scare people. She uses that buzzword “defund the police.” No one has ever proposed defunding the police–ever, ever, ever. But that is a catchy phrase. And she talked about danger to the community, and then the bail reform. The business side of the bailing bond industry is so adamantly opposed to changing the status quo. And they imply that if you don’t let us charge people, money to get out of jail, that you’ll be in danger. Because if they’re released on any other system, they’ve not been properly screened.  But we screen them so well with our money. It sounded like to me that that was intended to scare the voters of Maricopa County. That’s what I heard in that. And that’s what I’m trying to point out to people. The voters are barraged with this type of stuff. And they’re gonna make a decision, come November, of who they want to run that office in Maricopa County. I doubt that Mitchell will enforce the 1864 law, though she did not renounce it. She had the opportunity to say that she would. I find it doubtful that she will enforce the law, but she didn’t really say anything other than if you elect my opponent, you’re going to be unsafe. That’s what I heard in it.

Andy  49:38

Right totally. Yeah, but so tell me Larry, with your political experience, how come no politician anywhere ever answers the question they’re asked?

Larry  49:49

They’re trained not to. They’re told that you have a message. Their handlers tell them that when you go this interview with whatever the situation may be, that we want you to hammer this.  And so, it’s just not done.  Answering our questions is the silliest thing that you could imagine doing.

Andy  50:09

Okay, well, then let’s move over set up the second block of the two clips that we have. One of them’s kind of long. The other one’s pretty short.

Larry  50:16

Yes, this is our favorite Sheriff actually, from Polk County, Florida. And he is proclaiming how proud he is that he arrested–they call this human trafficking. Now, we used to call it prostitution when someone hires for sexual services, but they were running a human trafficking sting. And they caught an interesting individual. And it almost seems to me like he just relishes in bringing this person’s career to an end to his 30 years of law enforcement experience with a Cartersville police department, which is in Georgia. So roll the video. 

Grady Judd  51:02

This is Deputy Chief Jason de Prima of the Cartersville Police Department. As I understand it, after talking to his chief, he’s been there almost 30 years. He’s a graduate of the FBI Academy. A well-respected police officer in town. Did you notice I said in town, but he was out of town. That’s right. He was at an American Polygraph Association meeting in Orlando, Florida. Let me let me say this clearly. I don’t want you to miss it–driving an unmarked vehicle that was normally assigned to the DEA Task Force, meaning their officer assigned to the task force would have driven this vehicle. But apparently his vehicle was not so good to make the trip. So he’s in one of the undercover vehicles when he shows up at our undercover operation in the government vehicle carrying alcoholic beverages. Apparently, some Bud Light for himself and White Claw for our undercover operative.

Andy  52:22

Hey, man, what is White Claw? I’ve never heard of this.

Larry  52:25

I have not the foggiest notion, but it really makes me have trouble sleeping at night to know that an adult man from Cartersville, Georgia, would go to Polk County, Florida, to hook up with an adult woman, and they would drink alcoholic beverages to me. To me–

Andy  52:48

There’s something wrong with doing that? I’m sorry, I haven’t been updated on the social conventions. Is it not allowed anymore?  

Larry  52:54

Well, the drinking is certainly lawful, but the paying for sex, he was gonna pay, as the allegation goes. He was hiring this undercover person for a sexual escapade. But now these, this state is known for its wise fiscal management. They’re run by people who proclaim to keep government small and lean and efficient. And this is a search of a problem, a solution in search of a problem. This guy was out of town on business. By all accounts, going to your favorite association of polygraphers.

Andy  53:32

I was going to bring that up to.

Larry  53:35

And he was going to have a paid liaison with an adult. And the Polk County sheriff in Florida, is taking great satisfaction as Sheriff Judd does this all the time. He does a press conference about every week, or sometimes more, about some type of sting and some kind of arrest. And he does this, and it was not anything unusual. But folks in Polk County, they obviously support him because he went through election. And it just seems like such a waste of resources. But yeah, we’ve got we got a second clip with Sheriff Judd.

Andy  54:14

All right. So here’s the second one. This one’s pretty short.

Sheriff Judd  54:19

And let me tell you the story, as he relates it to us. He is texting with–guess what–our undercover detective. He started this conversation with her on Wednesday night where he was going to show up. But he became spooked. He didn’t say why. But on Thursday night, he just couldn’t resist the urge to be with our undercover detective who he thought was a high-class prostitute.

Andy  54:58

And so we’ve had a particular guest on two three times, Kathleen, who covers this, like this is her whole focus in the world is covering the subject. I mean, it’s a natural desire to go have relations with people attractive, whatever, like, and so I’m assuming she was a good-looking lady. And so he looks like he’s a pretty young lad. But Judd just wants to berate him. 

Larry  55:29

Well, he does that. That’s his standard operation. When they put on these photos and show. I almost feel bad for the police officer of Cartersville. I mean, I’m not condoning that. He should not have been doing that. But it’s—what the oldest profession that there is?

Andy  55:50

Yes, I believe that is the oldest profession is prostitution.

Larry  55:54

So Sheriff Judd has been in office. He was elected in ‘04. He received 64% of the of vote in a three-way race. He basically ran, might as well say unopposed, in ’08. He had a write-in opponent. And he had a write-in opponent in 2012. And so he got 96% of the vote roughly. Then 2016, he ran for a fourth term, and he got 95% of the vote with another write-in candidate.  In 2020, they gave up on challenging him, so he ran unopposed. Apparently, the people in Polk County are very happy with the sheriff. And I tell you that the people that we elect are a reflection of us. Sheriff Judd gets on to Canberra and wins 95% of the vote, because that’s who the people are in Polk County. They’re happy with this.

Andy  56:54

I still wonder, Larry, in the grand scheme of things. Why–similar to marijuana, why wouldn’t we legalize it, regulate it, make sure that it’s safe.  Then you don’t have the underground economy. There’s a whole lot of black-market stuff that would go on. There’s going to then be drug dealers and the people extorted. If we made it something of a legitimate profession, then seems like that would go away?

Larry  57:20

Well, oddly enough, there is an organization, I can’t recall the name, but it was at one of the conferences out in Las Vegas, and I got a shirt, a t shirt from them about sex workers and making their life better. But it’s not likely to happen because of a number of things we have such a bias for. There’s a morality bias about sex in this country. And a lot of it’s based on biblicists–it supposed to be between man and wife, and for procreation. And beyond that, then it’s morphed into human trafficking now. They’ve so expanded the definition of human trafficking, that everything that used to be unlawful under one section of law has now been transformed to be a more serious crime. It’s human trafficking. So now that’s what this was a human trafficking operation. And at the beginning of the video, he says we were looking for victims of human trafficking. And in that process, they have to arrest the John’s to find out if they’re victimizing people.

Andy  58:18

And there was no it was an undercover cop. So I mean, I guess he could have said, Yes, I will pay you for the deed. And so I guess that means there was intent and whatever, they have stuff, but there’s technically no victim. It’s not like there was a worker on the other side of that.  There was never going to be any illegal activities.

Larry  58:37

Well, other than the pay for sex, which he got the price confused, according to Sheriff Judd, he was confused about how much he owed for it,  but he did agree. He did agree, and he brought money into it. There was another part I didn’t ask you to do, but he apparently, according to Sheriff Judd, the detective from Cartersville had apparently been swindled by someone for $200. They told him to go get a card and make a picture of it. And I think you can figure out the rest of what what happened. He had to buy the card to show that he had the money and make a picture of it. And you can figure out what went with the card after they got the number?

Andy  59:17

Okay, jeepers man. Well, I think that’s all we have. And it’s pretty much about the time limit for the show. Anyway, is there anything else to cover here before we get out? I have an announcement that I want to make that I’m going to ask your permission to make the announcement about it first.

Larry  59:35

Well, if you’re going to ask in law live with 1000s of people listening, what choice do I have?

Andy  59:40

You? Well, that’s I already asked you in pre-show if you would do it, if you would entertain communications with people. There, was that vague enough? That’s vague enough. Yes. Okay. And you’ll agree?

Larry  59:53

I agree. We’re going to try to expand the reach of FYP particularly if our transcription service goes. We’ve got a new person trying to do the transcript, and he did a great job for the first episode. So we’ll see how that goes. But if I can free up some time.

Andy  1:00:11

So what we’re going to do is–I will create a new voice channel on the Discord server. And we’ll start it out pretty low, Larry, like maybe at the $5 a month level. So I’m gonna have to figure out how to coordinate with you to make an announcement, but you will go into that voice channel. And if you want to talk to Larry about anything you want to, I’m sure that you’ll put limits on whatever you want to. But if you want to shoot the shit with Larry, then you can go in there and kick it with him and talk about stuff. And maybe it’ll be an hour or two hours, depending on how long Larry can put up with you people. All right. Is that a fair way to announce it?

Larry  1:00:52

That sounds great. Perfect.

Andy  1:00:56

Well, then, without anything else to do that is going to conclude this episode of the fine Registry Matters podcast produced by FYP education. Somebody asked, I still don’t know what FYP meant. Go look in our archives, whatever you want to do, you can go find where it is. I’m not telling you what it is. And so you find all the show notes over at Registry Matters do co, or FYP education is where you’ll find the transcripts produced by our fine new person. And you can leave a voicemail at 747-227-4477. And email registrymatterscast@gmail.com. And if you want to join in on the new Chatting with Larry, be sure you sign up at the $5 month level at  patreon.com/registry-matters. I think that’s all I have for the night, Larry. And I hope that you have a splendid, fantastic rest of your weekend and I will talk to you soon.

Larry  1:01:51

Thanks. I’ll see you in a week or so.

Announcer  1:01:53

Bye. You’ve been listening to FYP.