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Listen to RM244: Doe vs. Swearingen: A Victory in Florida?
https://www.registrymatters.co/podcast/rm244-doe-vs-swearingen-a-victory-in-florida/

Download the transcript here
https://fypeducation.org/wp-content/uploads/2022/12/RM-244-Print-Final.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 00:17
Recording live from FYP studios, east and west, transmitted across the internet. This is episode 244. How are you, Larry? How are you this evening?

Larry 00:31
Doing awesome. Glad to be with you again.

Andy 00:33
Fantastic. For those who aren’t patrons, we just recorded a Patreon extra. And if you’re a patron, for as little as a buck a month, which is about 25 cents an episode or less, then you could get in on that action as well. Before we get rolling, make sure that you go over on YouTube and press like and subscribe and write a podcast review, share it with a friend, all those other things so that we can grow the FYP Registry Matters family. And there’s that. What are we gonna talk about tonight, Larry?

Larry 01:03
We’re going to talk about a case from the United States Court of Appeals for the 11th circuit which originated from the state of Florida. I can’t pronounce it. So I’m just gonna let you worry about that. But it’s an important case. We’re going to we’re going to talk about some articles. We’ve got the Mississippi public defender system being underfunded, and we’ve got why is a person being required to register in Texas that didn’t commit a sexual offense per se. And there’s some other articles if we have time, but yeah, we’ve got we’ve got some good stuff.

Andy 01:34
Excellent. Well, then let’s just dive straight into this. And you brought up we’ll put in a case here from the US Court of Appeals for the 11th circuit named John Doe versus Richard L. Swearingen. If I’m butchering that, well, I’m sorry. The plaintiffs here, whose offenses predate the registry had been subjected to this reporting structure since the registry law was enacted in 1997. This is an ex post facto challenge, Larry?

Larry 02:01
Yes, it is.

Andy 02:04
Let me set this up. The plaintiffs alleged the following facts in their complaint, which the court must accept as true. The plaintiffs committed qualifying offenses prior to 1997, meaning they were registered for over twenty years prior to the 2018 amendments. John Does 1 and 7 each report in person about eight times per year to re-register and report information changes, such as those caused by travel. Neither has been arrested for violating the registry law, but they fear that the law has become so onerous that an inadvertent failure to register is unavoidable. John Doe 6 suffers from a mental disability that requires him to depend on his sister to comply with his registration requirements, including his obligation to report in person four times a year. Before his sister began helping him, John Doe 6 was arrested twice for failing to comply with requirements that he did not understand. Like the other plaintiffs, he fears that the registry law now virtually ensures his future incarceration. It sounds like an I gotcha, doesn’t it, Larry?

Larry 03:09
Oh, it is indeed. It’s interesting that in a state that claims to value every penny of taxpayers’ funds, they claim that they seek to eliminate wasteful spending every chance they get. But they create all these gotchas when it comes to the registry. So they incarcerate people. You have to admit that’s ironic.

Andy 03:26
I will definitely concede that that is ironic. So a story I’ll just slip it in here. Super-Patriot Mike tells me that a good friend of his has many cars, and one of them had screwed up registration and some ammunition, something like that. I don’t know all the details. But he gets arrested for that somewhere right around Halloween when they’re doing their compliance checks. Like these are very, very, very benign innocuous things, and they just seem that they want to go after some people to lock them up. It does seem like it, Larry.

Larry 03:56
It does, indeed.

Andy 03:58
Now after the lawsuit was served (John Doe vs. Swearingen) on the state, what was the state’s response? I can only guess.

Larry 04:04
The state moved to dismiss the complaint containing in part that the underlying basis for the claims accrued long ago. For each claim the state traced the alleged injury to an amendment to the registry law and measure the limitations period from the amendments effective date. Now, the plaintiffs responded that they were not challenging their designation as PFRs. But the constitutionality of second-generation registration burdens and the continuing threat of imprisonment for failing to meet them.

Andy 04:37
So what did the district court do?

Larry 04:39
The district court agreed with the state that the claims were time barred. The judge said because the plaintiffs are subject to the registry law for longer than for the four-year limitations period and because they had not pleaded that their challenges and alleged injuries were tailored specifically to amendments and acted within the limitations period, they were denied. Of course they appealed.

Andy 05:03
The Appeals Court noted, over the past twenty-five years the Florida legislature amended the registry law more than a dozen times. The information collected by the Commissioner now ranges from basic identifying information like a registrant’s permanent address to details like the license tag number of his roommate’s car. Any change to this information triggers a registrant’s duty to report, and failure to comply is a third-degree felony. I’m assuming third-degree is minorish.

Larry 05:30
Well, it’s down the chart, but still a significant crime in Florida.

Andy 05:34
Yeah, yeah. But it’s not first-degree murder. I’m assuming as a first-degree crime versus third degree. I’m not saying I’m just saying it’s lower tear anyway. And you people have always said that the mere act of registration is not unconstitutional, but it can be depending on what is required. Can you admit that Florida’s registration requirements are unconstitutional?

Larry 05:54
Sure, I can admit that. But what I say really doesn’t matter. But yeah, I can admit that.

Andy 05:58
How are you required to report your roommate’s car? I mean, like, why would that even frickin’ matter? Why would you be required to do that? How would that pass muster?

Larry 06:11
What there would be a clause in there, they would say something to the effect, and I don’t know exactly what Florida law says. But it would say something to the effect of a cars that you own or regularly operate. For example, you live with a roommate, and you share the vehicle. So your roommate’s car would be subject to disclosure, which could jeopardize the safety of the roommate.

Andy 06:38
And this has been hailed as a great victory over the past week. What do you say about it?

Larry 06:43
It is a victory. I don’t know if I’d go so far as to say a great one, but it’s definitely a victory.

Andy 06:49
Ah, are you confusing me? So it sounds like you are confusing me. This is not about the constitutionality of Florida.

Larry 06:58
You jumped ahead. The plaintiffs allege that the reporting requirements became intolerable in 2018. That’s where we are.

Andy 07:05
Oh, okay. So the plaintiffs allege that the reporting requirements became intolerable in 2018 when Florida again began amending the registry law. Registrants are now required to report any absence from their permanent residence for any reason that lasts more than three days. That sounds like a prior restraint on one’s liberty. Can you admit that?

Larry 07:27
Yes, if you have to report travel in advance, before you’re allowed to travel, I can definitely admit that that’s a prior restraint. But again, it doesn’t matter what I say, does it? Now you’re to the part about this being hailed as a great victory.

Andy 07:46
So people have been saying that this is a great victory. What do you have to say about it?

Larry 07:51
It is a victory to be able to have your day in court. It absolutely is. The district judge summarily dismissed it and agreed with the state. So yes, to be able to resurrect this with a 11th circuit, it is a victory. But we’ll get into how great the victory is further down. But I would not hail it as a great victory. But it is a victory. But I prefer to let the court speak. The court said, “the constitutionality of the registry law is not before us— we must determine whether the plaintiffs’ claims are timely.” So that is a victory. Absolutely.

Andy 08:26
You are confusing me to a degree. This isn’t about the constitutionality of the Florida registry?

Larry 08:34
It is about that, but the state of Florida argued that the claims were not timely, and thus barred, and therefore, they were able to flush the case. So in order to get to those issues that are being argued in the complaint, we had to resurrect the case. So the Court of Appeals only did one thing. They resurrected the case from dad, and said trial judge, you shouldn’t have dismissed the case agree with the state. And so the case is now being remanded.

Andy 09:04
So I see. Okay, so the court stated, “The plaintiffs sued to remedy various injuries, some caused by the 2018 amendments and some arising from other provisions that have been on the books for several years.” How did the trial court respond to that defense?

Larry 09:20
How did they respond? Well, the district court dismissed the claims, agreeing with Florida that the plaintiff’s injuries stem from one-time acts: the enactment of each provision that allegedly injures them. Therefore, under the applicable statute of limitations, they were required to sue within four years of the date of each provision that imposed the challenge burdens. And so it was kind of the state said that we don’t really want to have to defend these issues. So, therefore they were going to throw up a bunch of smoke and mirrors saying that their time barred if we could get the court to buy into it, then we don’t have to defend on the merits. It worked. And you have to admit that’s funny.

Andy 10:12
No, I’m not admitting it’s funny, and it wasn’t to the court either. They said although the plaintiff’s injuries undoubtedly originated when the challenged provisions permitted the commissioner to first injure them, the district court failed to consider whether the plaintiffs, who are subject to the registration requirements day after day, were continually injured by the requirements within the state statutory period. I remember when you people were litigating in New Mexico regarding non-New Mexico convictions, you asserted a continuing violation doctrine. Isn’t that relevant here? What is that doctrine that we were talking about them?

Larry 10:45
Well, it’s great because that’s exactly what salvaged the case. According to court, the continuing violation doctrine permits a plaintiff to sue on an otherwise time-barred claim when additional violations of the law occur within the statutory period. If a defendant’s actions violate plaintiffs rights that are repeated and ongoing basis, then a cause of action may be timely even if the first violation took place outside the statute limitations, and they cited Callaway versus Partners National Health Plans. And that was a case from the 11th circuit in 1993. So that resurrected this case for now.

Andy 11:21
Was that relevant to the court’s decision?

Larry 11:24
Yes, it is. The court stated that, “examining each of the plaintiffs’ alleged injuries and claims individually, we conclude that the following claims are timely or satisfy the continuing violation doctrine: Count I, Count III(A), Count III(B), Count IV(A), Count IV(B), Count IV(C) and Count V. Conversely, we conclude that Count II and Count IV(D) are barred by the statute of limitations.” So it wasn’t a clean sweep. But they get to go back to the trial judge that dismissed them, and they have to litigate on these of these issues.

Andy 12:00
The court also stated, “we believe the plaintiffs have alleged a continuing violation. The registry law requires the plaintiffs to make multiple in-person reports each year, even if nothing about their registration information changes. In addition to that requirement, each day the plaintiffs must try to determine whether an action they take—whether, for example, they wish to purchase a new car, book a weekend trip, or create a new online account—requires making an in-person report. The complaint contends that these reports are time-consuming and burdensome, and the plaintiffs allege that they have forgone certain opportunities because of the likelihood that they would have to report information to the Commissioner.” Is this not a disability or restraint? Sounds like a disability restraint to me there.

Larry 12:44
It is, indeed. And in terms of I don’t know, if I was clear enough on the continuing violation doctrine before I get the rest of this answer. But the continuing violation doctrine is really not that complicated. You can have a continuing violation. And the way that Florida wanted it to be interpreted would yield an absurd result. The law is not intended to yield an absurd result. So let’s say for example, the statute of limitations is three years like what we had in New Mexico in the case that you mentioned. All of our plaintiffs had been on the registry for more than three years. And they asserted that doctrine here and I said, no, it doesn’t apply because the injury is still happening. So although the initial injury happened before the three years, it’s continued to happen. So the violation is still occurred. And there’s a continuing violation doctrine. The lawyers weren’t keen on the argument. Certainly, the judge wasn’t, which was more important. But we made a weak argument about continuing violation doctrine. And then we shifted to another argument, which I can’t readily recite, but we abandoned the continuing violation doctrine. But just think about this. So the sheriff and Bibb County comes out and arrests you. And make it a sheriff in Bernalillo County since it’s a three-year statute here. And they managed to keep you in custody for three years without you contacting a soul. They forbid you to have access to anything. You’re never successful in smuggling a phone and you’re never successful in contact with the outside world. Three years and one day later, they decide to let you go. So they’ve had a lawful detention for three years. You were never charged with a crime. There was ever even an affidavit of probable cause the sheriff just went and arrested you and held you for three years. That would yield an absurd result to say that you should have filed a complaint within the three years because you couldn’t. The PFRs are in a similar situation. They fear filing complaints will involve rocking the boat. They know that the registry people are, in most cases, going to double down, not that this does not apply in Maryland, which is pure as driven-snow, and they would never do that there. But in most jurisdictions, they’re afraid that they’re going to be doubled down. Their families are going to be targeted. Their employers are going to be told bad things. Their apartment owners going Be told bad things. So therefore, out of fear, they don’t file a complaint. Well, the person in jail couldn’t file the complaint. And therefore, it’s absurd. The Court recognized that “Contrary to the Commissioner’s suggestion, this injury is not caused by the plaintiffs’ initial designation as sex offenders, but by the state’s continuing threat of enforcement of the registration and re-registration requirements.”

Andy 15:31
Fourth and finally, the plaintiffs argued that they have been injured by the very classification as PFRs. The plaintiffs contend that they are being unconstitutionally punished under the Eighth Amendment (Count II) because the law imposes obligations on them “until they die” without any individualized assessment of the risk of re-offense. And what did the court say about that one?

Larry 15:53
Well, the court didn’t buy that one. The court said, “We believe the counts about this alleged injury are based on nothing more than the lingering effects of the plaintiffs’ initial designation as sex offenders, which occurred over twenty years prior to this lawsuit. The plaintiffs were either provided with appropriate process before they were “punished” by being placed on the list, or they were not. Either way, their claim was complete at the time they were categorized as sex offenders and made subject to the law’s requirements. The continuing violation doctrine does not save this kind of claim.”

Andy 16:29
I still don’t quite understand Larry. How somebody commits their crime and all that stuff prior to the registry–and I get that it’s a civil regulatory scheme–, but how does this type of obligation to report information not cross that Kennedy, Mendoza-Martinez ruling, particularly the disabilities and restraints when you have to do all of this reporting stuff? And it doesn’t seem like there’s no evidence that it supports anything. So then how do they get away with pulling this one off. Especially in Florida, where it’s really, really over the top crappy, without somebody filing challenges and getting them rolled back? When other states have done it successfully with lesser restrictions?

Larry 17:13
Well, because they have not successfully proven that the disabilities are punitive. There’s been too many summary judgments motions filed. There’s been too thin evidentiary records going up. And the cases have not been done as well as they should have been. And remember, the burden is on the challenging party to prove that this is in fact a punishment scheme despite its so-called civil regulatory name.

Andy 17:41
You’ve talked about there being something similar to something like a constitutional registry, where it maybe you just mail in a postcard or something along those lines? Can you articulate where the line gets crossed? From? Where Florida like if they rolled it back far enough to be x–would it be simply like there was a way to get off the registry after X amount of time or something? Would that do it? Is there anything in your brain that would look like rolling it back far enough where these challenges would go away?

Larry 18:20
Well, certainly a way off the registry would be a start, but also the disabilities of what people are not allowed to do, where they’re not allowed to work–those are going to have to be peeled off, particularly for the people whose offenses predate those obligations. You can’t impose restraint on people to a regulatory scheme and it be constitutional, certainly after the fact. Now you might be able to do it going forward, if that’s an expectation, and something that’s going to happen to you as a result of the collateral consequences of a conviction going forward. But to people who’s had their obligations either imposed upon him after the fact or increased dramatically after the fact, that’s really problematic. So you’d have to take out all the things like what Michigan did. You remember in Does verses Schneider? The court really hammered them on the disabilities or restraints, and most of those were peeled out for the old people. You know, they can live where they want, they can work, I think, where they want. And there’s a path off. That’s a part of it. I don’t know how Michigan provided a path off, but I think there’s a path off in Michigan. But you’re gonna have to peel off significant layers, taking the registry back to where it was probably the very beginning, if you want it to be constitutional.

Andy 19:39
But that’s only for people that were convicted before X date. Those convicted yesterday are going to have all of this crap pile on them for them to report. Is that’s what is going on here as well?

Larry 19:54
Well, these particular plaintiffs are all pre preexistence for registration. But yes, there are people who will have continuing complaints. If your sentence has ended, my contention is there can be no disabilities or restraints imposed upon you through a regulatory scheme. Only reporting is all that can be imposed on you, and reporting of things that were, in essence, in existence at the time of the offense. But such as a car you drive, all the things that weren’t a part of the original offense, like the name of your offense, the age of your victim, the date of your offense, the jurisdiction of your offense, those type of things, that’s public record, that’s long standing public record of what you did, what you pled to, or what you were convicted of. And your mugshot at the time. But where you’re going to school, or you’re working, who you’re living with, all those things, were not a part of the original conviction. Those are forward-looking requirements. And those are huge disabilities, when we tell you, you can’t live somewhere.

Andy 20:52
Right? I have to think maybe 75% of people’s issues would go away if they didn’t have residency restrictions or work restrictions. And then secondly if your information weren’t just immediately available on a public website.

Larry 21:11
And even if the website were public, if it didn’t put your pinpoint your address, if it just put a city or maybe the name of the street.

Andy 21:20
Larry, some people live in cities with like 300 people. They’re gonna be able to figure out who you are, if you put a city.

Larry 21:26
Then you should get the heck out of that small city.

Andy 21:31
True. What happens next on this case?

Larry 21:37
It goes back to the District Court for determination on the merits of the surviving counts. So the district judge, despite his wishes, is going to have to conduct a trial. Or they’ll do their famous motions for summary judgment and ask the judge to decide it without a trial. I would not ever encourage a motion for summary judgment. If you really are serious about this, then you need to raise some money down in Florida, maybe even approached NARSOL about assisting and make sure that there’s a solid evidentiary record list. Don’t end up like the case in Colorado with Judge Magee, where there was no evidence to support his findings. You’ve got to have evidence when you’re going to strike down the will of the people and say the will of the people is null and void. We can’t just do that because we feel emotions. It’s got to be proof.

Andy 22:24
Larry, I gotta say that you almost sound optimistic on this one. You sound optimistic that they’ll get their day in court.

Larry 22:33
Well, they will get their day in court. But I’m not that optimistic about this, because the 11th circuit just handed down that horrible decision we discussed in McGuire versus Strange. Remember that one? Vaguely one of the one where the brother moved from Colorado to Alabama.

Andy 22:51
That one in Alabama, I remember that for sure. I just don’t know the cat’s name. But yes, I remember that.

Larry 22:56
Yes. Okay. Well, that is binding precedent. Remember, the 11th circuit is Georgia, Florida and Alabama. So we’ve got a binding precedent of a registry that’s equally as bad as Florida’s where this Court has already said, it doesn’t cross the constitutional line. So it’s hard for me to be optimistic when I’ve got binding precedent in the circuit. So what they’re going to have to do to have a chance of winning is they’re going to have to distinguish the disabilities of restraints that exist in Florida, to make them more excessive than what exists in Alabama. And remember, Alabama did peel off some of the requirements that have the dual reporting. Not much. And they took the driver’s license notification. Alabama did a little bit to clean up the registry, but most of the disabilities are still there. And you can’t be optimistic when you realize that the 11th circuit is bound by existing precedent. They could only come up with a different decision. If this has been so distinguished in a way that they can say that panel decision is not valid here, because this is a totally different case. But if the issues are very similar, they’re going to come with the same decision, because that’s just the way the circuit courts work.

Andy 24:13
Gotcha. You’re saying, if I’m gonna make this kind of comparison, the 11th circuit being where Georgia is also where they said you can’t do the Halloween signs, and then they do something sort of similar in Florida with signs. And then the attorneys can try and figure out how to make it seem like it’s similar to Halloween signs. Because of the 11th circuit, it would be binding there too.

Larry 24:31
It would be binding, and the argument you would make would be that you can’t do it because the previous panel has said you can’t do it. And that wasn’t appealed. Therefore, that’s binding in the 11th Circuit. So if a Florida jurisdiction made a law about signs, they would have to distinguish themselves. Well, this is not really what they were doing in Georgia. We’re distinguishing ourselves. We didn’t do that. We’re actually applying it to people who’ve gone through this process, and they are more appropriate candidates, we’re not using the blanket imposition on everybody. You could possibly get away with it by distinguishing yourself. But that’s what these people are gonna have to do. They’re gonna have to say our registry is so much more onerous on Alabama’s if they expect to win. Otherwise, I cannot be optimistic.

Andy 25:17
So I think we’re going to change your name to Mr. Doom and Gloom for the duration of our time here doing FYP Education, and Registry Matters. I think that’s what we should do.

Larry 25:26
Mr. Doom and Gloom? Really?

Andy 25:28
Yes. We’re gonna give you like a superhero outfit. You will be like a super villain. And so you are Mr. Doom and Gloom.

Larry 25:35
So I’m just telling you what I’m looking at. I can’t make this stuff up.

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Andy 26:30
All right, well, there’s that. So we have some time to kill. We started this at 7:26. So we’re the 30-ish minutes. So we will cover some articles. One of them was passed along from an individual that resides in Florida. And it is a post from the Florida Action Committee website. 40 PFRs arrested in Hillsborough County, and Halloween operation. And in this little clip, I could go to the article. But it’s enough that 40 of them that were arrested, I think it was 37 had violated their probation, meaning they had missed curfew, all that benign stuff. That’s just a technical violation. So I guess you could say that they did find the three people that did significant violations. Right?

Larry 27:19
Well, without disclosure of what those violations were, I don’t know, for sure. But it doesn’t seem like the best utilization of funds. And the state that claims they’re so conscientious about public funds. But go ahead.

Andy 27:32
We’ve covered this over the years, I remember some forever ago, we covered something coming out of Pennsylvania, where they were just looking for some sort of anything that they could find to put you back in there with their thumb on you for violating some small terms. And I guess if you didn’t register an email address, that would be considered a violation that you would get nailed for.

Larry 27:59
Absolutely. But what did the special operations cost? When you got teams to go out there. On overtime, I would imagine. And multiple agencies. Right?

Andy 28:10
And we could speculate at them making $20 an hour base pay or $30 an hour base pay. 50k or 60k a year as a beat cop. And then you’re saying throw in overtime. So let’s call it 60 to 70 bucks an hour. Fair. Yep. So and then five hours because they got to be there early to like to suit up and get all their tactical squad gear on and look all threatening. And they go out–20 people cover a county? I don’t know what number of people cover a county?

Larry 28:44
Well, they’re huge undertakings and lots of money being expended. And they did find some conditions of supervision violation. But remember, if they went out and knock on everybody’s door, and they didn’t find anything that’s difficult to justify conducting the operation. So you have to find things, even you have to look really hard, you have to find things.

Andy 29:08
So now it’s almost like you’re the traffic cop. And if you don’t come back with at least some number of speeding tickets, you didn’t do your job. So you had to find somebody that was speeding, whether they were or not.

Larry 29:19
That is kind of the way the system works. I don’t make the rules. But if you’re going to have these operations, they’re going to find things to arrest people for. They’re not going to come back and say, that’s it. Pretty good out there today. It doesn’t work that way, folks.

Andy 29:32
So this is them. This is almost like the wagging the dog; the tail wags the dog. If they go out and they don’t find anything, and they do these multiple years in advance in a year in a row, then the public would be like why do you keep doing this? So they have to find things to report.

Larry 29:49
Absolutely. And that’s the reality of life. I had a person called the Legal Hotline here just a couple of days ago from some small city up in Minnesota. His son has had a relationship with an underage girl. And they put him on probation. And he’s finding probation to be very challenging because of the things you’re describing. You know how closely they’re supervising his son. And he said, I don’t understand this. He said, they’re treating him like he’s some kind of hardened criminal with all the requirements and all the check ins they’re doing, and it’s just such a waste of money. And I said, well, you know, it’s ironic you should mention that. I said, we’re about to have an election in a few days. And I said, remember, when you vote, whichever way you vote, you’ve got candidates telling you that law enforcement needs more resources. And you’ve got candidates telling you that some of the resources law enforcement received are not best used. And they should be redirected to other purposes, including maybe some treatment or counseling. And I said, Is it possible in that jurisdiction that you’ve overfunded your law enforcement apparatus, because they were so happy? Yeah, he said, they made this case when there’s so many other crimes out there, they should have been focusing on. I said, really, if it’s a small jurisdiction, there might not be a lot of criminal activity, and you may have given your police more resources than they need. And they had to make the case because your son, for all practical purposes, is a sexual offender. He broke the law in the state of Minnesota, and they had to prosecute him because there’s an election coming up in three days. And if you truly believe what you say about all these frivolous charges are being made, then you might want to be a little more receptive to the argument that we’ve got too much funding going into law enforcement.

Andy 31:48
Oh, my God, Larry, don’t start with that defunding the police crap.

Larry 31:51
I’ve not used that term. But if you believe that we have frivolous cases being made–and I think a lot of our audience believes that–the only way you will stop frivolous cases being made will be to diminish the ability to make frivolous cases, which is a resource question. If you believe that there are not enough cases being made, and you need to vote the other way then you need to vote to give the cops more resources, more funding, so they can make more cases. The decision is on you.

Andy 32:23
I know that you put in the Operation Blackout for Memphis, but there’s no more detail in that article. So we’ll move along. Do you want to do the underfunded public defender system in Mississippi?

Larry 32:39
Yes, this is gonna be informative in terms of the public defender system. but

Andy 32:45
This is from Mississippi today. I didn’t realize that Mississippi had a publication called Mississippi today.
“The system is not designed for you to win: Underfunded public defender system penalizes Mississippians.” I’m sure there’s some reason why you wanted to put this in here. This doesn’t have anything to do with PFR stuff.

Larry 33:08
Well, maybe it does. So like most public defenders in Mississippi, Mallette was appointed by a judge. She represented an unlimited number of defendants for a fixed payment that often did not cover the cost of investigators or expert witnesses for the cases. Many times when Mallette filed a motion for her client, she said she thought twice to make sure she could prove to the judge she was not wasting time and money. She said, “My first priority is to my clients, but that is always balanced and tempered against how bad this is going to piss the judge off.”

Andy 33:56
The article says that Mallette’s experience is not unique. In Mississippi, attorneys who represent the indigent in criminal cases have to deal with an underfunded public-defender system that lacks statewide funding and oversight. In an ideal criminal justice system, the three components, law enforcement, prosecution and defense would be balanced in order to work fairly. But Mississippi spends significantly less money on the public defender system than its counterpart, the district attorney’s offices. What do you say to that?

Larry 34:34
Well, I’ll just quote from the article. “This funding discrepancy results in an indigent defense system that fails to provide state oversight and ensure independence from the judiciary. Since the system allows judges in counties without a funded public defender’s office to have control over how attorneys are chosen and compensated, indigent defense attorneys might fear that when they push too hard, they will lose their job.” Now that’s what the article said.

Andy 35:04
Um, and public defenders are appointed by the courts for defendants who cannot afford legal representation. Of the 82 counties in Mississippi, only eight have full-time public defender offices. The vast majority of counties hire part-time contractors to provide legal representation. Meanwhile, a few counties appoint lawyers on a case-by-case basis and pay by an hourly rate. What’s wrong with that idea?

Larry 35:31
Well, it’s wrong because the disparity and treatment depending on the county. Some counties are not very generous. Even if they have that compensation system, they may have a very, very low hourly rate. But according to the article, attorneys working in counties with no public-defender offices often have little control over their defense processes because they can’t begin their work when the person is charged. In Mississippi, the constitutional right to have an attorney doesn’t kick in until defendants are indicted. While some counties appoint lawyers only after indictment, most counties and cities appoint two sets of attorneys to specialize on cases at different court levels. Duane Lake was in jail without a lawyer for almost three years before he got indicted. He eventually spent six years in Coahoma County jail for a murder he didn’t commit. I assume this means he was found not guilty, or the charge was dismissed. So that’s what’s wrong with it. We’ve got a system in Mississippi–I think they rank up in the top three in the rate of incarceration per 100,000 population–and they don’t provide any consistency in defense for their citizens. And again, if the people of Mississippi wanted to provide criminal defense, pursuant to a US Supreme Court decision in 1963, called Gideon versus Wainwright, they would demand that of their elected officials. They don’t because it’s not important to them. And therefore, this is what we have.

Andy 37:01
In your opinion, should dollar for dollar go to the DEA and PD?

Larry 37:09
I don’t know that you can make that simple comparison, because there are people who have the resources to be represented by private counsel. The state has to prosecute everybody that don’t have private counsel. So if you have 1000 cases in a jurisdiction, the state is going to have to resource up for all those of that 1000 cases. You might have 300 that are privately defended. So I don’t know that a dollar-for-dollar representation is necessarily the way to go. But I don’t know that it isn’t either. Even though the private defense bar is covering some of the representation, the state system has a lot of resources that are not really visible to the person. For example, all the investigative resources of law enforcement are paid for by government. So the local police, they are government funded. The investigators that work for the Prosecution Office of the State Attorney are all probably lay funded. So they can send stuff to the state law enforcement. In the case of Georgia, the Georgia Bureau of Investigation. In the case of the FBI, they can sometimes rely on the FBI, depending on what they need. They send stuff to the lab in Quantico. They have all these resources that are publicly funded. So maybe it should be equal, even though there are fewer people represented by the public defender, because of the investigative resources and the expertise that the state has that the defense has to hire and pay for.

Andy 38:43
I understand. I was just wondering. I’m sure there’s no public support for it, because they think crime is bad, crime is going through the roof, whatever. They’re guilty, obviously, or else the DEA wouldn’t even bring charges. So screw them, don’t give them any constitutional protections or anything like that and lock them all up. Because that’s what we do.

Larry 39:03
That is what we do. And it’s unfortunate because in this country of ours, where we’re supposed to presume everyone innocent, the Supreme Court said decades ago, almost 60 years ago–it will be 60 years next year–said that you’re entitled to representation. If you can’t afford one, the state will provide you representation. So the state is attempting to put you in a cage. And the state bears the burden of proof of putting you in that cage. But yet the state gets by despite 60 years of precedent of not providing you with representation if you can’t afford it. You end up in a cage in a country where we claim liberty and justice for all.

Andy 39:46
Alrighty, then. Then let’s go over to this Reason article. “Why is Texas requiring a guy who stole a car to register as a PFR? When states misuse PFR registries and apply them to any crime that involves a child individual rights are abused.” There are some crimes that are very bizarre that you would end up with on the registry. So why, let’s see. Why did you put this in?

Larry 40:12
Because it’s interesting and the title of the article is a bit misleading. Yes.

Andy 40:19
John Michael Weatherly has never been convicted of a sexual offense. Yet, once he is released from prison, Mr. Weatherly will be required to publicly brand himself a sex offender. Mr. Weatherly will live with the obligations and consequences of being registered in the state of Texas, including the state’s monitoring of his movement, incursions into his privacy, reputational harm, restrictions of his housing options and educational goals, and limitations on his recreational activities, despite the fact that he has never committed a sexual offense. How can they do that?

Larry 40:54
Because he was convicted of a registerable crime under Texas law.

Andy 40:58
And how can they do that?

Larry 41:01
Because three offenses listed on the sex offender registration list, trigger PFR requirements without requiring any finding of sexual conduct, intent, or action. These three offenses— kidnapping, aggravated kidnapping, and unlawful restraint—carry mandatory registration requirements under SORP, despite being crimes that are not necessarily sexual in nature. See TEX. CODE CRIM. PROC. art. 62.001(5)(E).

Andy 41:33
Can they win this case if the law requires registration? (Clinton laugh track). I’ll take that as a no.

Larry 41:47
Oh, well, there’s no additional finding of sexual intent or conduct required by the courts or the Department of Public Safety, for a conviction of unlawful restraint to trigger the PFR registration requirement. In addition, a first-time conviction for unlawful restraint of a minor child under 17, which was the case for this was like a four-year-old that automatically requires registration on Texas PEFR list. This is a choice for the people of the state of Texas to make.

Andy 42:20
And I have read all 299 paragraphs later if you can believe that. You’re sitting there and telling me that this case has is already on life support. No wonder you people we get we referred to you we’ve changed our name to Mr. Doom and Gloom.

Larry 42:38
Well, I’m telling you that at first glance, and I didn’t read all 299 paragraphs, so you’re ahead of me, but just haven’t read the complaint for the first time. This is a weak case. It is for the people of Texas to determine how broadly they wish to apply their PFR requirements. It’s not for lifetime. I don’t like judges wearing black robes to overturn the will of Texas unless, of Texans, unless they have violated the Constitution. They have to prove that the Texas registration scheme is unconstitutional. And they have an uphill battle. They haven’t been that’s a steep climb, but that’s what they have to do.

Andy 43:14
So I also noted that Georgetown University Law School is listed as the attorney. How does a whole university become the attorney for an individual? Does that impress you at least?

Larry 43:25
Well, it’s not the entire school. But yes, you did notice that correct. There is an attorney from that law program. But it doesn’t change the reality. Now listen to what you’re saying. You’re all of a sudden saying of people, our audience, I’ve heard states’ rights and keeping the big old bad federal government out and no legislating from the bench. Now, all of a sudden, I think I’m hearing you say that, despite the fact that Texas chooses to have a broad list of registerable crimes, which includes this kidnapping, that they can’t be listed on the PFR registry. And that is for Texas to determine. Now, I think it’s despicable. I think it undermines and neutralizes if you’re going to call it a sex offender registry. You would almost think that someone who is on that sex offender registry would have committed a sex offense. I mean, right. Doesn’t that seem somewhat logical?

Andy 44:25
That seems entirely logical to me.

Larry 44:28
So it would be nutty to have, but we have states across the country that have sex offense and violent offense registries. And we, we defer to the state’s rights and all of a sudden I’m hearing it sounds like a little bit of pointy head ism coming out of you that you want to trump your nose and stomp your nose and thumb your nose at the states and have the black robes decide what the people those states can do. And I’m not sure that that’s going to fly well in the federal courts. particulars are comprised today I just don’t think this case is going to have. Certainly, I wish them well. And I’d be happy if I were asked for input. But they’ve got to prove that the Texas registry is punitive, before they can limit the application of the registry, merely naming someone to be on a list. I don’t think it’s going to get you there. And I haven’t read the entire complaint. Maybe we’ll come back to this case later. But

Andy 45:23
Because I mean, we the people get decide what we prosecute as crimes.

Larry 45:29
And we get to decide what our civil regulatory schemes regulate. You got to prove it. You got to prove that the registry is not just a civil regulatory scheme. You got to go after the whole thing. And somewhere in those 229 paragraphs that that it looked like they were attacking the registry itself.

Andy 45:47
I didn’t see anything of that sort. So.

Larry 45:50
So yeah, well, maybe like say, I’ll give it I just actually got it yesterday. So I didn’t have a chance to read it with thoroughness. But the answer is he’s being required to redshirt because law requires him to apply, is he being labeled a PFR? Because he’s on the list, that crime is on the list in Texas. And they’re asking a court to limit the list. And I’m not sure a court can do that.

Andy 46:17
And then I think this will be enough to close out the program and says, this is from Forbes. “Military Veterans in Federal Prison Have a Program Meant to Assist in Their Successful Return to Society.” I’m assuming there’s a but in there. Why did you put this in here?

Larry 46:33
Well, there was a, but it doesn’t look like that the prison system is doing a great job of, of utilizing this option. So the money is there.

Andy 46:47
So the opening paragraph says, “Our military veterans are the pride of our country, but many have challenges after returning from service where they faced hostile environments under stressful circumstances. While most transition back to civilian life, mental illness, trauma and drug addiction are too often a part of the life of post-war veterans.” I was getting my hair cut the other day, and the lady cutting my hair said that her, I think it was her nephew, did the second Gulf War and did a bunch of tours over there and is not right in the head after coming back and just really struggles with functioning day to day. And I feel for and it’s almost like in my brain, Larry, it seems that if going in doing horrible things to people shooting them, all that stuff that goes on and war, if that doesn’t affect you, you have problems. If it does affect you, you also have problems.

Larry 47:36
Well, it says there 10,000 veterans at VOP custody. That’s a huge number. I mean, I think the VOP has something about 180,000 inmates last time I looked.

Andy 47:46
I was thinking it was 200. So that’s like, what is that? Five?

Larry 47:50
So yeah, that’s a huge number. Now they’re not they’re not all PFR related. It sounds the two thirds of the offenders are. Well, I think there’s a huge number of veterans that are also homeless or near homeless. But apparently there’s that is also pretty common. There’s programming available to help these people but apparently, it’s not being utilized.

Andy 48:17
So like the state system, then you have to go through some kind of counselor, and they don’t want to work, and they don’t want to do much to help you and your you don’t have any outside resources generally to help you. Someone in chat can speak to finding people that help them do anything on the outside. So you’re a person with an unlimited amount of time, but no resources to do anything where the people in the outside have resources but no time to do anything. So you’re just stuck.

Larry 48:44
Well, it says the BLP reports incarcerated veterans. Through his collaboration with the US Department of Veterans Affairs, the VLP acknowledge that veterans as a result of their service suffer from higher incidences of trauma, anxiety, depression and physical disabilities, which can be pathways to the criminal into the criminal justice system. But what are you doing? What are you doing about it? So I felt like it piggybacks on our last episode. You know, we have such great admiration for these people. But all of a sudden when they get into trouble, we forget them. I know this has been published in Forbes, which is not exactly a liberal publication.

Andy 49:23
Truth, truth, truth. Well, very good, sir. I would like to point out that we did get a new patron that came in the name is Chris so I’m a little I would say he, but I don’t know that he could be a she, so of Chris, thank you so much, and did an annual subscription. So that’s really frickin awesome. And then another Chris spelled with the non-traditional CH, who’s already a patron did a very generous donation to FYP education, and I can’t thank that person enough as well. Anything else before we head on out of here, there?

Larry 49:55
Well, I did get a couple of letters that I haven’t responded to yet. So I’ll just ignore I was to Timothy, and in Ohio that I did get your FYP did receive your packet. But we haven’t been able to focus on it yet. And also received another one. Well, how much time do we have left? I might, I might can do this one.

Andy 50:19
Give it five. If we started at 26, and we’re at seven, we started 7:26. And whatever it is, it’s 7:15. So we have like, seven, eight minutes, really?

Larry 50:29
So well, let me take a look at it. Frank’s submission. I think I can answer because the answer is going to be I don’t have an answer. But I want to acknowledge something.

Andy 50:38
Well, that doesn’t help. Well, but I’m going to try to find there’s no answer.

Larry 50:42
It says Dear Andy and Larry, Greetings once again. Forgive me for getting straight to the business. Well, we don’t need to forgive you. That’s what we want. My question is regarding the pronounce the Pennsylvania case, tr LSI. LL er I, that case that we had on a couple of weeks ago? Sure. Sure. Sure. Sure. So I’m, I’m twice convicted PFR from the Middle District of PA halfway through my sentence with a prosecution with a projected release in 2030. As I am one of the rare to have people who have reoffended over seven years ago, how will that case apply to me? While I still have the right to reputations? How will this ruling benefit me? And I don’t know the full answer. The right to reputation does not have an exception that I could see for anyone who has had a second transgression. So I don’t see that that alone. But in terms of what Pennsylvania did, and how being a repeat PFR how that’s going to affect you with the modifications I’ve made to the law. I do not know, but I will endeavor to try to find out. Maybe we’ll have our expert from PA come back soon.

Andy 51:57
Very good. Sounds like a plan. So anything else did you want to try to do the other letter ad hoc.

Larry 52:04
No, there’s too much there.

Andy 52:09
Very good. You find all the show notes over at registrymatters.co or fypeducation.org. You can leave voicemail at 747-227-4477 or email registrymatterscast@gmail.com. And the best way to support us is on Patreon at patreon.com/registry matters, or donations over at fypeducation.org
So anything else? Any parting words?

Larry 52:41
Well, let me give some kudos to Timothy for his proper utilization of postage. Only an anal-retentive person would notice this, but rather than just putting extra first-class stamps that cost 66 cents each, he actually understands the system. It’s 24 cents, as it stands right now, for each additional ounce. So he put five separate five cent stamps, and so he only put one cent more than what he needed to put on postage.

Andy 53:13
Probably didn’t have access easy to access the penny stamps anyway.

Larry 53:17
Yeah. But the fact that he has five cents and chose not to put to first class stamps is amazing. Most people say, oh well I’ll put a second or third first class stamps on. And it doesn’t get there any faster. If it goes over one else, then you need to put an additional health stamp those costs 24 cents. As it stands right now. They will go up on January 1.

Andy 53:39
Well, this has been “Understanding the postage system with Larry and Andy.” And without anything else, sir. I will bid you a farewell this evening. And I will talk to you next week. I hope you have a wonderful weekend.

Announcer 54:01
You’ve been listening to F.Y.P.

Listen to RM243: Military Sexual Assault Statistics–Myths and Facts
https://www.registrymatters.co/podcast/rm243-military-sexual-assault-statistics-myths-and-fact

Download the transcript here
https://fypeducation.org/wp-content/uploads/2022/12/RM-243-Final.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 00:17
Recording live from FYP studios, east and west, transmitted across the internet. This is episode 243 of Registry Matters. How are you people this evening? Larry, that’s directed at you for sure.

Larry 00:29
Doing awesome. Glad to be back with you. I’ve got lots of stuff to report on tonight.

Andy 00:34
That’s right. I do know that you have something to report about. Is one of them related to temperature control?

Larry 00:43
Yes. But you got to remind people to subscribe and do all that good stuff.

Andy 00:47
Yes, of course, make sure that you like and subscribe and hit the bell button and the notifications and all that. That’s all that stuff. So tell me about your furnace.

Larry 00:58
Well, for the last two seasons, I was teaching it a lesson because it wouldn’t fire up. But I finally decided it was time because the poor thing just didn’t learn its lesson. And I had enough things go wrong in my house, it was time to call for service. So I called for service on the list of things that nobody wants to hear. And lo and behold, I got my furnace fixed, and it’s gonna be providing heat this season.

Andy 01:26
How did you get it lit?

Larry 01:29
Well, it turned out that the only thing wrong was that I had forgotten all the steps to light it, and it just needed to be fired up.

Andy 01:41
So all you had to do was light the pilot light.

Larry 01:44
That’s all that particular aspect of the repairs. That’s all he did. There were several things that he had to take care of. But he just fired it up correctly and changed the filter. So I’ve got heat again. So I guess in a way I did teach the lesson, didn’t I?

Andy 01:59
I think that’s totally it being stubborn and teaching you a lesson, Larry, for real. That’s you being stubborn and not doing what it takes for you to not have heat. And then how much do you think your electric bill was higher by using space heaters?

Larry 02:11
Well, the electric was higher, but the gas was cheaper. So it was a net profit.

Andy 02:18
All right. What else do you have to report before we go on?

Larry 02:21
Oh, that’s really about it. What are we doing tonight? I think it’s going to be a great program.

Andy 02:26
I believe so. But I believe that you’re going to tell me what we’re doing tonight.

Larry 02:29
We have a guest. We have the spouse of a person who is serving time in the military confinement over Fort Leavenworth. There’s a federal facility over there that has military confinement. I believe it’s called Fort Leavenworth, one of the oldest pens of the country. But this is not that facility. This is the Joint Regional correctional facility. And it’s only for military. And we have the spouse here but can be introduced shortly. And depending on how much time we have left, we’ve got some articles. And we definitely want to play a funny clip from a high-profile trial that’s going on.

Andy 03:09
And no, I think we covered that like a week ago. Just introduce maybe it’s two weeks ago that we introduced it.

Larry 03:15
Yeah, the Darrell Brooks trial up in Waukesha, Wisconsin.

Andy 03:20
All right, anything else? Before we introduce our guest?

Larry 03:23
Let’s roll the train because we’ve had a lot of questions prepared.

Andy 03:29
Very good. So we have a special guest tonight, Ashley. Ashley is the mother of three, and her husband has two children. Both have a set of twins, which is pretty unique. You probably met through like some sort of twins dating website, I’m going to guess. Ashley has become very distraught over what she has witnessed in the military justice system over the past couple of years. And we are planning to discussion about those who with military convictions. So Ashley, would you tell me where your husband is right now?

Ashley 03:58
He is in the Joint Regional Correctional Facility in Fort Leavenworth, Kansas.

Andy 04:05
And so actually, thank you very much for coming on. We’ve been doing preps and I know you’re nervous, but don’t be. It’s all good. We’re all friends and family here. So everything’s great. Tell me what kind of facility is this?

Ashley 04:19
It’s a medium security prison. And I know everyone thinks of the big one when you hear Fort Leavenworth, but this one is smaller, and it exists, literally to house so-called Sex Offenders within the military. 90% of the population in the prison is people convicted of sex-offender crimes. And that figure came from a social worker, so it’s accurate.

Andy 04:53
Why would there be an entire prison for just one type of crime?

Ashley 04:59
That’s The big question. The facility is basically secret. And you can’t find much out about it unless you have a loved one there. And it’s on the base–the army base–so access is restricted.

Andy 05:17
And just remind me–you’re in North Carolina. And if he’s in Kansas, that makes visitation kind of challenging, huh?

Ashley 05:27
Yeah. Budget wise, I’ve been going about every three months. It’s a very long and expensive trip. It’s about 20 hours if you drove. Yeah.

Andy 05:40
And then once you do that, then you’re I mean, are you able to visit multiple days to do that?

Ashley 05:46
When I go, I try to go when they have a four-day weekend, and then you get special visiting hours for two-to-three-hour sessions a day or the weekend?

Andy 05:58
Why would so many military members be convicted of the one crime?

Ashley 06:06
It all started about 10 years ago, when there was a lot in the media with the rape culture, on campuses and in the military. And the media was full of salacious stories that turned out to be fake. And then there was a documentary called “The Invisible War.” And it ended up being a big deal, and a lot of members of Congress got ahold of it and made a lot of changes.

Andy 06:41
And what is a reaction to a big military problem? What does the military do to solve a big problem like that?

Ashley 06:51
Well, that’s the thing. There’s not now nor was there ever, actual numbers saying that sexual violence was occurring at a higher rate in the military versus civilian world. Hard numbers say there is less sexual violence in the military. And the military takes it much more seriously than the civilians. And those good stories that people were telling created the perception that the military was full of sexual predators. And of course, bad things happen. And some of those guys should be in that prison. But the military prosecutes and punishes at a much higher rate than civilians.

Andy 07:46
But they do have numbers. So where do they get statistics? It seems like in a closed environment like that in the military, they would have all of the data for what is going on? So where is that data? Where’s that information coming from?

Ashley 08:01
So about 10 years ago, the military started using surveys to gather information from the soldiers. And they created a “dark figure” of assaults. And those surveys allowed women to say that they were assaulted, but they never actually reported the assault. And the company is Rand that makes the surveys. And they claim that in 2018, 20,000 women in the military were assaulted, but only 6053 reported their assaults. And the reason they gave for not reporting is retaliation. They were afraid of retaliation from the accused, and Rand and those who use their data tout the 20,000 number, like it’s a fact.

Andy 08:58
And what is the veracity of this “dark figure”?

Ashley 09:06
I think for women in the civilian world, there are legitimate reasons why you might not report because you’re scared of retaliation. But in the military, it’s nearly impossible. And soon as you file a report, you get assigned a lawyer that’s called a special victims advocate, and then they are immediately transferred out of their unit away from their alleged abuser.

Andy 09:39
And I’ve heard that there can be a monetary incentive to report abuse. Can you explain that?

Ashley 09:46
Yeah. There is a strong incentive to report anything that might resemble an assault because of this. It’s called a transitional compensation program, and it pays the victim a monthly stipend plus, it gives them completely free health care, and benefits if the accused is convicted. And you get it for several years, and it’s a lot of money. And you can even go to the website, and you can see how much you will get if you win. And for active-duty members that are reporting the sexual assault, you can also get VA benefits for the rest of your life. So with all that, there’s a low likelihood that the dark figure actually exists. And if it does, nowhere near 20,000. But all of this data goes to the Secretary of Defense.

Andy 10:52
Let me get this straight, because that sounds completely bonkers. They get money and benefits, and they get to move to another unit, or even another base, if they want to do that. That creates a motive. Yeah, that totally creates some reason for a civilian to–I don’t want to call it entrap–but just lure somebody in to then make accusations so that they would then get benefits. And it would also potentially if you wanted to get transferred, you could make the allegation that someone did something, then you could get transferred to some really lush base that you want to go to, like Hawaii or something like that.

Ashley 11:30
Right? Yeah. And for civilians, there is no penalty for committing perjury in a court martial trial, they can’t do anything to a civilian. So they can say anything on the stand that they want. And plus, they have their special lawyer there to speak on their behalf when needed. And so two things happen from that. The system gets used for financial or benefits gain, and then it gets weaponized. And that’s what happened to my husband. He was going through a bad divorce. She told him many times that she was going to do this unless she got her way. And then she did it. And he wants people to understand that this is much bigger than just him. It’s happening to a lot of guys. And the figure of 6,053 that we mentioned earlier, only 90% of those were not even sent to trial because they were unsubstantiated. So there’s a lot of evidence to show that the system is being used as a weapon.

Andy 12:46
Tell me why do you think that this is happening?

Ashley 12:51
There’s a lot of reasons, I think, but that would open up a really big political conversation. I think whatever the reason, since 2012, over 100 changes have been made to the military legal system that make prosecution of the alleged crimes easier. And convictions in the military mean jail time.

Andy 13:21
And so the military has its own law system, not the civilian law system that most of us here are used to?

Ashley 13:31
Yeah. Everything in the military is governed by the Uniform Code of Military Justice, the UCMJ. And it has its own laws, rules of evidence, court procedures, sentencing requirements, prison system, everything. And any of that can be changed at any time by the National Defense Authorization Act, which occurs yearly. And Congress votes on it, the President signs it. And that’s it. So you might not even know stuff is happening. But most of the big changes happened in 2014.

Andy 14:14
Unlike what we have in the civilian side of things where your legislators would introduce bills, and then both sides would vote on it and so forth, and then it goes to the governor. We the people then have the opportunity to derail things or at least observe it, try to testify on it and so on. So, like the military side of it is almost like a black box.

Ashley 14:38
You think?

Andy 14:41
Okay. So this could go on forever. But I wanted to talk about some examples of how it differs from the civilian side. So your husband wrote this paper? “No Means No, But Yes, Does Not Always Mean Yes.” I think we covered that at some point, Larry, didn’t we?

Larry 14:55
We did. We read a portion of that.

Andy 14:59
Okay. We talked about it on a previous episode. And we read a section that I think summarizes the thing completely. It talks about withdrawing consent after the fact. All you have to do is say you were intoxicated. So you couldn’t have consented. And you can withdraw the consent virtually any time, because there’s no statute of limitations. So, right.

Ashley 15:21
Right. There is an important distinction to make and that in the UCMJ, the standard isn’t intoxicated, it’s impaired. And they have changed the standard over the years. And you used to have to be incapacitated, which most people would consider as pretty freakin drunk. And now it’s all the way down to impaired. And what exactly does that mean? That’s a really low bar. So someone can say I said, yes, but I was impaired. And under the UCMJ, that is a sexual assault because an impaired person can’t consent. And on top of that, it’s based on the person’s subjective memory of just how impaired they were.

Andy 16:19
This would seem to open up the door to someone having some level of buyer’s remorse.

Ashley 16:26
Correct? That’s a lot of the stories in there. And a lot of regret sex is being tabled as assault, when really, it’s just poor judgment on both parts. But these women have strong motivations to report the incidents as assault, and there’s no downside for them really. And so that’s why claiming there’s a “dark figure” is highly unlikely. And that’s what’s happening in the barracks, but it’s not what happened to my husband. And usually it happens to the lower ranking soldiers within the barracks.

Andy 17:10
You just said that your husband’s situation is different. How was that?

Ashley 17:16
His was a vengeful-ex situation. During their divorce, there was disagreement about their house. And so he had to file a lawsuit, just like the normal division of property stuff. And so she was served those papers on a Friday. And on the following Monday, two days later, she told the army he had assaulted her two years prior. And those facts were never in dispute in court by anyone and was evidenced by documentation that it was the correct timeline. And that wasn’t a problem to them, I guess.

Andy 18:02
And you said that she threatened to do this to him before all of that went down.

Ashley 18:07
Yes. He started recording her because of the constant threats. And he kind of thought that would help him to not end up where he is. He has a lot of recordings saying that she’s going to do it and explaining in great detail what she is going to do and kind of mocking him about it. But he was not allowed to use those recordings in court as evidence. And the military does have their own set of rules of evidence, but I think that might have also been attorney error. But it was all confusing. And we just had to trust that they knew what they were doing, which didn’t work out.

Andy 18:54
Clearly. What was her evidence then?

Ashley 18:57
Literally nothing. And I know that sounds unbelievable, but she had nothing. She had never mentioned this assault anyone before. And she and my husband had never talked about it, as was evidenced with 1000s of texts and audio messages and recordings. And she didn’t have to answer why she was only mentioning it after the lawsuit was filed a few days earlier. She was actually turned away from civilian investigators at two precincts because they told her she had nothing to build a case on, but the military said we’ll take it. And a person’s testimony alone is solid evidence to them.

Andy 19:48
I believe it also comes down to being fairly solid, solid evidence in the civilian side of things. Did your husband testify in his own defense?

Ashley 19:58
No, his attorney advised him not to. So all they had were her words. And I think our attorneys counted on the jury not believing her because it was all so bizarre. But that was obviously a mistake. And there’s a lot more to it. Like you don’t have to have a jury of peers, it’s all higher-ranking officers, and only two thirds majority is needed to convict. But I think they’re about to change that. But I’m not positive. But it’s way more complicated and worse than what we’ve said. But this is just the quick version. And things that happen in that courtroom were so bizarre and unbelievable. And I know I sound like I’m exaggerating whenever I tell our story, but I saw it all with my own eyes. So there’s no disputing what happened.

Andy 20:59
And since he’s currently serving time in prison, he was ultimately found guilty, I’m guessing.

Ashley 21:05
Yes. He had a lot of charges. I think they were just trying to throw a bunch and see what would stick. But they found him not guilty on a lot of the charges. Then he got a three-year sentence for two charges. And a lot of guys that he’s with they got much worse sentences for less, which to me indicates they just wanted to give him some time for the sake of appearances, because he was facing around 90 years with all the charges added up.

Andy 21:42
And frankly, I’m not 100% sure I’m understanding the why behind all of this.

Ashley 21:49
That’s a big question. And all this happened because politicians made decisions and not the military. Why do politicians do anything they do?

Andy 22:06
I think that probably is a question that we will move over to get an answer from Larry. Why do they do this, Larry?

Larry 22:14
Well, I remember that as this was happening as Ashley is describing it, there was a lot of publicity about rampant sexual abuse in the military. And the military–the Department of Defense–when you take out the big programs like Social Security, Medicare, that’s where we spend our money in the United States. And therefore, Congress is under lots of pressure, enormous pressure, to do something about our brave soldiers who are going and putting their lives on the line only to be abused with no consequences. This means that there would have been enormous pressure back in that time to find ways to fix it. And it’s kind of like what I’ve said through the years when it comes to the police departments across the country not being able to stop the abuse of suspects. And I say, we fund the police agencies, so it’s up to us to decide how they police, what weaponry they use, what the rules of engagement are? Well, the same thing would apply to the military, the Congress was under pressure to figure out if there’s this enormous number of assaults. What would you refer to that number as a 20,000, the “shadow number”? But if all this is happening, then Congress needs to step up because obviously the military hasn’t done its job, so the pressure would have been too much to withstand it. That’s the answer is they did it because they had to. They had to do something to fix a wrong.

Andy 23:58
There was a big scandal back in the day, Larry. You probably remember–it was Tailhook, if I’m not mistaken. That was a big six get almost like I was, like, frat house kind of activity, and hazing and whatnot, and the women were the targets. I ‘m trying to think of the right way to word that.

Larry 24:22
So we can undo this by putting the pressure back in the other direction. That’s one of the reasons why Ashley’s here, as she’s trying to communicate to the public that what is being done is an overreaction to virtually, almost non-existent problem. It’s certainly an exaggerated problem. But until Congress becomes convinced of that, there’s not going to be any pressure because the people who lead advocates in charge for victims, are well funded, well connected, and well respected. And if they say it’s happening, you better have some solid evidence that it isn’t.

Andy 25:03
Let’s continue then Ashley. So how, how receptive have people been to your messaging? How understanding and all that?

Ashley 25:12
I get a lot of mixed reviews. I think no one gets it at all, unless you are personally going through it. It sounds like I’m just a wife trying to defend my husband as any wife would. But unless you’re living it, you just aren’t going to understand what it’s like with the military justice system. And the political piece is the thing because why is it all so secret? If politicians thought they were protecting citizens? Wouldn’t they want everyone to know their high conviction rates? And this prison exists solely to house these military sex offenders that they were so worried about? Shouldn’t they be proud that they have done what they thought people wanted? They know the American public would not be okay with it–shipping military men off to the prison without a fair trial. There’s no due process whatsoever. These were our heroes, and the guys that we used to thank for their service. And I know on here, you guys have talked about people forced to register as being an unsympathetic group. And that’s just not the case here. There’s a prison full of young men who are not criminals. They swore an oath to protect their country, and their reward is to be caught up in this political power grab.

Andy 26:53
When they do get out, will they have to do registration in their local state?

Ashley 27:00
Yep. They fall under whatever the rules of the state are, where they’re registering. My husband–I don’t know quite how to compute the military to civilian, so I’m not sure exactly–but it looks like it would fall in a tier that would put him on the registry for the rest of his life, which obviously would affect our entire family forever.

Andy 27:30
Depending on the state, though, I think he might not have to do it for the rest of his life. That’s depending on that state, though. So don’t go to Florida, because then it will be for the rest of his life. But a place like a Georgia-kind of state has a removal process, as do some others. I just want to say that a person in chat said that actually, many wives just leave, and you should be commended for your loyalty. And I would totally go with that. Any, any spouse that sticks by as their spouse goes through anything related to this is definitely gotta be commended. Or kicked in the head for being crazy. Three years, like, three years isn’t the end of the world, but let me ask you this. Does this mean something of a less than honorable discharge? Does he get discharged as you get to go back to work in the military?

Ashley 28:25
He got a dishonorable discharge.

Andy 28:29
So pile on registrant, pile on convicted felon, and then pile on dishonorable discharge.

Ashley 28:37
After thirteen years, he didn’t get anything he earned.

Andy 28:42
Well, I mean, I served eight years. I don’t have anything from that. But I’m assuming after 13, he was planning on being a lifer.

Ashley 28:50
No. He was actually set to retire in May ’21. But they extended it for the trial. So he had found out he had cancer and long story short, he was set to have disability with all that stuff that we were going through. And then this kind of threw it into a different direction.

Andy 29:12
Totally. So if he was going to retire with benefits, I guess that that goes away then.

Ashley 29:20
Yeah. So will still have to appeal, but yeah.

Andy 29:26
So Larry, that would segue over to the FYP education Social Security Disability podcast. Wouldn’t he qualify for disability benefits?

Larry 29:36
He possibly would qualify, but he’s going to run into a problem depending on whether he is currently insured or not. People who stay out of circulation for a longer period of time when they’re looking to look at whether you’re currently insured, and this is it gets very nuanced. You can have insurance for retirement benefits, your Social Security. You can have your 40 requisite credits or what they used to be called quarters, and you could be eligible for retirement benefit. And you could not be currently insured for disability benefits, meaning that you don’t have recent enough work. So a person needs to have earnings and five of the 10 years prior to the onset of disability. A person who has been in prison for 10 consecutive years would not be currently insured because they would not have any earnings, unless they could show that the onset for their disability began before they went to prison, which gets more and more complicated to do. So he could conceivably get Social Security Disability benefits, but the longer he stays out of circulation, the more that he rolls beyond that period of being currently insured. Does that make any sense at all?

Andy 30:52
Well, he’s doing the three years and you use the number of five years in there, does that mean he is in good shape to get it or not good?

Larry 31:00
You should be currently insured with only three years of downtime, because if he worked seven years prior to three years of downtime, seven is greater than five, and five is enough to be currently insured in the previous 10 years before the onset of your disability. But that is a catch all that people get trapped in. They’ve been in prison for a long period of time. And when it comes to disability and social security, and you’re not currently insured. Social Security says, Ha. Well, I’ve worked for 22 years. I’m eligible for retirement. Yes, you’ve got your 10 years, which is 40 credits, but you’re not currently insured because of your absence. And then they say, well, I was in prison. How could I work? Well, that’s not our problem. You are not participating in the workforce. And so yes, he’s probably still currently insured if he has a medical disability. But has he been eliminated from all benefits for military, everything is gone? Everything?

Ashley 31:54
So we’re trying to figure that out right now. But I think he has three prior honorable discharges. And I think he can still get the stuff from those, just not from his current enlistment, which includes the cancer and stuff that he really needed help with. But I think he’ll still get–I don’t know–no one seems to be able to give good answers.

Andy 32:25
Well, Larry, do you have any follow up before we close out the segment?

Larry 32:28
No, it’s a tragedy. And politically speaking, Ashley, you guys are going to have to get into the mainstream media with this. And you’re going to have to find a sympathetic person that does old-fashioned journalism that will actually sit down and listen to you and get it on the air. And that’s probably going to be easier said than done. But you’re going to need an audience of with huge numbers, for people to say, really, I don’t believe this can happen in our country. I don’t believe that we can convict people without any meaningful due process, and particularly people who were risking their lives to protect our country. That’s the type of outreach you need. And you’re going to have to work really hard beyond our podcast to get mainstream attention. You’re going to have to find a print journalist to write about it. And then maybe get on one of these old-fashioned talk shows where you can reveal what’s happening.

Ashley 33:31
Yeah, I write to people every day. But I don’t know. I just assume the military is very scary and intimidating, and no one wants to take that on. I don’t know. I’m not going to quit trying. And I’m very grateful that you guys are giving me this platform.

Andy 33:51
Hey, Larry, there’s a person that was at the 2015 Conference in Atlanta. And he writes periodically? I don’t want to out his name. Do you think he would be a good person? He frequently journals, things related to our issue, and it gets published in a lot of different publications. Do you think he’d be a good person?

Larry 34:11
I think it’d be worth a try.

Andy 34:14
Can I say the name?

Larry 34:17
I don’t see why not.

Andy 34:20
Okay. Steve Yoder is a person that you may want to try and get in touch with. He writes on our issue. He is not directly related. He is tangentially related to the registry, but through a friend or a brother or sister or something like that. And someone also said in chat said Pro Publica maybe would be a place. And what about the what’s the criminal news–We get articles from them all the time.

Larry 34:52
The Criminal Legal News–are you talking about that?

Andy 34:54
No, it’s like Collateral Consequences Resource Center or something like that.

Larry 35:02
So I’m not sure that would be something they would do. But you leave no stone unturned. Because you’re needing an audience. You’re needing the American people to be outraged.

Andy 35:16
Very good. I’m sending you have a message Ashley–possibly your American Legion post if you haven’t already. So probably half of the people that are in chat are from the military or have prior service to some degree. And so they’re providing some ideas as to what you can do.

Ashley 35:35
Thank you. I’ll take them all.

Andy 35:39
Well, thank you so much, Larry. Was there anything else you wanted to follow up on before we dive out?

Larry 35:43
No, unless Ashley has anything to close with, we can move on.

Andy 35:48
Ashley?

Ashley 35:49
No. I’m good. Thank you, guys. Thank you.

Andy 35:53
You’re welcome. Thank you for coming on. I really, really appreciate it. And I hope you have a splendid rest of your weekend. Thanks so much.

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Andy 36:52
Anything else before we go on there, sir?

Larry 36:54
No, let’s keep moving.

Andy 36:58
Ok, cool. So, I wrote this question. But this is an ongoing issue with a friend of mine. And so to set it up–a friend of mine has been transferred to another state. This was three or four years ago. He went from Georgia and transferred on parole down to Texas. And there was a retaking or revocation–I always get those kind of confused. And when that all happened, he served an additional two years in Georgia prison. And now he’s down for another two years for a probation violation of having some adult nude images. Now, couple that with somewhat recently, there was a new law signed in, it was called House Bill 105, that stipulates after three years, you can have your probation terminated of being a PFR. Do you think that having the revocation or retaking thing on parole, and then having the probation violation plus those two years–how do you think that will impact him on getting leveled and terminated and all that stuff?

Larry 37:59
Now, are we talking about early termination for probation? Are we talking about removed from the registry?

Andy 38:03
No, terminated. So when he when he gets out, he’ll have seven years left. So do you think that when he finishes those three years of the five–so he had seven when he got locked up–so that would leave five when he gets out? That would then be three years that would leave two additional years on probation before he would be eligible. I hope I did all that math. Right. And it made sense.

Larry 38:26
Well, here’s what I would say. Am I allowed to say the answer that I believe would be most accurate?

Andy 38:33
Oh, and let me just add this one other thing while he was in the Texas jail, he got leveled a level one in Georgia. So yes, now you can say whatever you want to say.

Larry 38:45
Okay, in terms of probation, when you’re asking for early termination from probation, you’re going back to the sentencing court. Even if that judge is no longer on the bench, it would be a judge who assume that bench. But termination from probation can only be done by the judge that sentenced or the replacement judge. And the adverse party to that removal petition, that early termination petition, would be the prosecuting agency in the jurisdiction that achieved the original conviction. If I’m the prosecutor in that jurisdiction, and I’ve got a person who has messed up on supervision twice, once on parole, and once on probation, there’s no way my office is going to be able to come in and not oppose that removal. And that’s not to say it couldn’t be granted over the objections of the prosecution. But there will be opposition from the state of Georgia through the district attorney of that jurisdiction. They’re going to say that this person has had difficulty adjusting to supervision as tried to skirt the responsibilities of their superiors. As a judge, you would be not serving the constituents of our community to let this person off supervision. That is what they will say, in all likelihood.

Andy 40:12
Even when I went to court after having zero issues in the time that I was on for seven years, I did half of my probation, 14 years. Then the DA, he came in there with little fuzzy gloves, but he still put up a fight. He said, “Your Honor, we don’t approve of this, but I don’t really have anything to say against him. But we still don’t approve of this.” So I can imagine that if somebody has things against them, since the time that they’ve been on post release from prison, that they’re going to at least be able to go, “Hey, we have these things.” Right?

Larry 40:47
That’s exactly what they’re going to do. Remember, the district attorney–are we talking about the same jurisdiction that you were in, or a different jurisdiction?

Andy 40:58
A different county in Georgia.

Larry 41:02
Okay. It might be on the same circuit, but not the same county. But the district attorney has to run to be elected. The last thing that district attorney wants is to have the local television come rolling in saying–Why did your office not oppose the early termination from this person, after having difficulty, at least twice, on supervision, and here’s what the person did. And you still were okay with removing them from supervision? No elected official is going to put themselves in that position. They’re just not. I wish I could tell you that they are. But they’re not. The best thing to do would be to have an attorney. Go have a conversation with them and say, I’m thinking about filing for early termination. What is this office’s position going to be? Then they go and get back and tell you, their client, “I went and talked to the DEA, and this is what they said. I can still file the petition, and we can still request a hearing. But the opposition is going to be significant. And this judge is not often known to overrule the DA and do something because the judge also runs in Georgia” The Superior court judges are elected in Georgia. So therefore, it’s going to be extremely challenging in a scenario as you’re describing here to get an early termination from supervision.

Andy 42:29
Okey dokey. He is listening to you live. And I know he doesn’t like what you’re saying. But so he then asked, Will he have to be releveled, or leveled again is how he worded it. I think they’re going to adjust his level. I would imagine he’s not just going to sit there as a level one, it would be my guess.

Larry 42:47
I’m not totally familiar with what all can trigger a leveling in the state of Georgia. I would assume that since the PFR, can ask for leveling to be looked at again, it would stand to reason that the state can ask if they have reason and evidence. If I’m the state, and the person files a petition, that’s precisely what I would do. And I tell people this, I’m not trying to be negative, I just don’t want you to spend your money–gobs of money which these lawyers typically charge, like $5,000 for removal petitions, I hate to see you spend $5,000. I would only charge $3,000 to tell you that this is a waste of time. But generally, if I’m the State, I’m going to ask that the person be re-leveled. And I’m going to state reasons why. I’m going to say on this date, the person violates their supervision by doing the following. On this date, they violate their supervision by doing the following. Both of these violations are sustained by finding–either by an admission or by finding. Therefore, the level may be inappropriate, and I’m going to try to get that person juiced up to where they won’t be eligible. Then I don’t have to deal with the fact because you’re not eligible as I understand it in Georgia.

Andy 44:07
That’s the way that I understand it.

Larry 44:10
So that’s what I would do. And if I can think of that, I’m quite certain they can think of that.

Andy 44:17
Alright, man, very good. Shall we move over to this little video clip that you had me copy for you?

Larry 44:25
Yes, this is regarding the high-profile case of Darrell Brooks, whose trial is getting quite interesting because in my view, they shouldn’t even be conducting this trial. The guy’s got some serious mental health issues, but the trials going forth, nonetheless. We’ve talked about it, a couple episodes back. And we just have this for your local entertainment here, to hear a little snippet of how he goes back and forth with the judge. I think there’s a real crucial part that we like so much that I want people to hear.

Andy 45:00
I want to point out though that he is at least wearing a suit this time.

Larry 45:05
Yes, he did decide to wear a suit.

Andy 45:09
Alright, this is a little over 90 seconds.

Darrell Brooks 45:17
If you have seen it numerous times before today, why did you need to see it again, make sure if any questions were asked, or however you refer to it, what would be the need to view again this morning? Something that you had viewed numerous times before.

Prosecutor 45:42
Objection, argumentative.

Judge 45:51
Overruled. The witness may answer.

Darrell Brooks 45:53
Did you view the video this morning because you knew that the video will be made an exhibit this morning?

Prosecutor 46:01
Rejection of facts not in evidence.

Judge 46:04
Sustained as to the form of a question.

Darrell Brooks 46:12
This is mind boggling. Can you clarify again why you viewed the video this morning?

Prosecutor 46:21
Objection asked and answered.

Judge 46:23
Sustained.

Darrell Brooks 46:24
So you going to sustain everything.

Judge 46:26
It was already answered, Sir.

Darrell Brooks 46:29
And I’m asking for clarification.

Judge 46:33
Next question, please.

Darrell Brooks 46:35
I’ve got no more questions.

Judge 46:39
All right. Thank you.

Darrell Brooks 46:41
This is mind boggling.

Judge 46:42
You may step down. I’ll excuse the jury.

Darrell Brooks 46:51
What you people is trying to do is not fair. Hide things from the jury repeatedly. Don’t tell them all this information.

Judge 46:53
I’ll take up all of your objections outside the presence of the jury.

Larry 46:54
Did he say you people there?

Andy 46:56
He did say you people. He just said I can’t believe you people are doing this.

Larry 47:00
So that’s why I put it in there. Every time someone can find “you people,” we have to play it here on F.Y.P.

Anndy 47:06
We’re gonna make the F.Y.P. You People Award.

Larry 47:11
That’s right. If you can send us a good, unused “you people,” we’ll play them.

Andy 47:15
You seem to have discovered something interesting about that particular individual who’s representing himself, which you are very fond of, by the way?

Larry 47:24
Well, yeah, very fond. He was going to call an ex-girlfriend as a witness. I think her name is Dawn. And the state notified the judge outside the presence of the jury that if he does call Dawn, that Dawn was the victim of an improper sexual relationship that resulted in an impregnation when she was underage. And therefore, he’s on the PFR registry, I think it said, in Nevada. So he exploded when the prosecution said that would open the door to discussing his situation with Dawn if he puts her on the stand. So it’s getting quite interesting. I didn’t know that until it came out yesterday that he has a conviction of a PFR nature.

Andy 48:23
Well, we don’t have anything else specifically. Do you have any of those articles that you want to cover? We have maybe 10ish or so minutes to cover any articles that you would like?

Larry 48:32
Yes, I’d like to do the UCLA gynecologist found guilty. And I’d like to do the Spacey being cleared. And then if we get enough time left, we can do the one on the Supreme Court, the one where Texas argues overreach of federal relief. So we could do those three if we have enough time.

Andy 48:54
Very good. So this one comes from Courthouse News. “Former UCLA gynecologist found guilty of sexually assaulting patients. James Heaps was found guilty on five of the 21 charges he faced at a trial that lasted over two months.” Why are we here on this one?

Larry 49:11
Well, first of all, I’m shocked that in this day and age, that anybody be found not guilty. But he was found not guilty of more things that he was found guilty of. But yet the university had settled out. It said something to the tune of $700 million. For his accusers, victims had been victimized. But the defense attorney told the jury at the start of the trial in August that his client’s case would rest on two types of evidence. Medical records showing that every examination performed by Heaps was medically necessary. As well as testimony from medical assistants or chaperones who will say they were in the room when the alleged abuse occurred. And the medical records will show that every examination had a medical purpose, and the chaperones will testify that there were no acts of sexual gratification and then I won’t go further. But this was a high-profile case in Los Angeles. It basically went down the crapper. It basically went down the crapper and he was convicted of some lesser his charges. They’ll probably give him jail time, but he was found not guilty. So folks, it does occasionally happen.

Andy 50:28
Oh, I see. Okay. Very good. So, and then we can move over to the Courthouse News Service. “Jury clears Kevin Spacey in $40 million sexual battery suit. And the deliberations were swift in the trial between Kevin Spacey and ‘Rent’ actor Anthony Rapp, who says he was just 14 when he wound up alone with the future House of Cards star in the bedroom after a party.” What’s going on here that you wanted to talk about?

Larry 50:56
Well, again, in a civil setting the standard is so much lower–remember it’s just preponderance of evidence–rather than proof beyond a reasonable doubt. But the description of this by Spacey’s attorney was so fantastic. It was an imaginary invented episode that didn’t happen. And what has been the damage to Spacey, who knows? But that case went down the crapper. He is facing some charges in the United Kingdom later, which he’s pleaded not guilty to. But folks, we’re out of control. We’re putting people in prison, destroying their lives with frivolous or no evidence. In this incident there apparently was just scant or virtually no evidence that it happened. And in fact, the evidence was contrary to where he lived and what his house looked like. That accusation didn’t hold up. It was like, Okay, you should have waited 40 years to come forward.

Andy 52:06
And when those things are inconsistent like that, it seems like, Larry, that Kevin Spacey would have effectively unlimited resources to hire the best attorneys in the world to go, hey, look, the testimony from the witness here does not match with what was actually in reality. And then wouldn’t the jury go, oh, that’s true? But that’s not how this goes.

Larry 52:30
Well, that’s what Jennifer Keller, his lawyer said. “‘This is a party that never happened,’ Spacey’s attorney told jurors. There was no bedroom. It’s a small studio.”

Andy 52:48
I sat on two jury trials. And one of them we thought the guy was guilty, but they couldn’t present the evidence. And like, yes, we think he did it. But we can’t, like in good conscience, say he did do it. Because we don’t have the evidence that the person says that exists. So we found the guy not guilty. And then another one, there was like, we watched three hours of camera footage of the person shoplifting some stuff and we were like, yes, they’re guilty. They did it and we convicted. But all I’m saying is like, how do juries sit there and take inconsistent testimony against reality, and then still end up convincing? I’m not saying that they did in this case, but like, how does it even go through the process of getting to a jury? Both sides are presenting evidence to see if they’re going to go forward.

Larry 53:39
Well, I think jurors feel bad for people. I mean, nobody wants anyone to have been victimized, but you have to remember your oath. You’re taking an oath to only consider the evidence just before you, not what you feel in your heart. Right, you can feel bad for the person all you want to. That’s great. I mean, I feel bad for people that they’re victimized. I sat for three months on a grand jury. I actually wanted evidence, and I was perhaps one of only a couple that actually thought that evidence was necessary.

Andy 54:14
Yeah, totally. And then finally, this is from The Nation.com. “The Supreme Court is poised to make it even harder to challenge wrongful convictions. The court will hear oral arguments Tuesday in Reed vs. Gertz.” I’m guessing a case which the stakes are quite literally life or death. Oh God, I can only imagine what you want to do about this one. Tell me what you want to do.

Larry 54:39
Well, actually, this was intended to be covered last week. So the oral arguments have already been held. This is a case where we’ve got a conflict between the circuits. We’ve got two circuits that say one thing, and we’ve got the 11th circuit that says another. This case is out of the Fifth Circuit because it’s from Texas, but Texas argues that Reed should have sought federal relief after the Texas trial court denied the DNA testing. And they said that he should have taken that directly to the federal court. The problem is that that’s so irrational, because you’re still in the state court. And the federal courts generally don’t look at state convictions until they’re final. But the Fifth Circuit of Appeals sided with Texas, and they said that he should have filed an appeal back in 2014, when the trial judge said no to the DNA testing. And the 11th Circuit said the opposite. So the question before the Supreme Court is technical and relatively narrow. When exactly does a habeas statute limitations clock begin to run? That’s the question. After Supreme Court sides with the Fifth Circuit and says, well, you should have filed a simultaneous petition for federal intervention, while you were still in state litigation, you’re going to open up a floodgate of duplicative litigation, because people are not going to want to be time barred out of their federal habeas. So this is what is being set up for the Supreme Court. And since the Supreme Court is so fond of having people executed and not intervening, they’re going to be in a real dilemma, to see what they do with this case, because if they have no problem with him being executed, they’re going to open up a floodgate of duplicative litigation in the federal courts, simultaneous with the state court, and they have to think really, really hard. Is that what they want to do? Now? That’s going to be funny for me.

Andy 56:45
Okay. Yeah. You and your definition of funny, we do not get along with your definition funny. Okay. So we will close out the show. Any closing remarks?

Larry 56:59
Well, they probably noticed that we won’t likely have a session this coming weekend because it’s Halloween, and you’re doing something special. And I’m taking risks because I’m 178 now, and I bet we will be back the following week.

Andy 57:20
You are correct. So we will take off next weekend, which will be the 29th of October and we will be back on the airways as we sort of call it tongue-in-cheek on the fifth of November. And I appreciate all that you do, Larry. And I hope that everyone has a happy Halloween, and if you’re on lockdown, then maybe you can listen to this episode while you’re not going out trick or treating. It’s really crappy what they do, Larry. That you can’t go out and all that stuff on Halloween really is crappy.

Larry 57:47
It really is. We’ve made some headway with the Halloween signage out of the 11th circuit in Georgia. There’s a lot more to be done in terms of Halloween restrictions, particularly those that are applied to people who have paid their debt and they’re not under the supervision.

Andy 58:04
Right. Well, very good. You find all the show notes over at registrymatters.co or fypeducation.org. You can leave voicemail at 747-227-4477 or email registrymatterscast@gmail.com. And the best way to support us is on Patreon at patreon.com/registry matters, or donations over at fypeducation.org And I don’t have anything else beyond that sir, and I hope that you have a fantabulous weekend, and I will talk to you soon.

Larry 58:37
Thank you. Goodbye.

Announcer 58:39
Bye bye. You’ve been listening to F.Y.P.

Listen to RM242: Felons and PFRs and Social Security
https://www.registrymatters.co/podcast/rm242-felons-and-pfrs-and-social-security/

Download the transcript here
https://fypeducation.org/wp-content/uploads/2022/12/RM-242-Print-Version-Final.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 242 of Registry Matters. Good evening, sir. How are you?

Larry 00:28
Awesome. How are you?

Andy 00:30
I’m doing very well. Thank you. Just another day in paradise.

Larry 00:35
What do we got going tonight? Oh, you’re supposed to ask me.

Andy 00:37
I’m totally going to ask you that. But first, we’re going to talk about that we are going to ask people to like and subscribe, and five star and share, and go into your podcast app and make sure you subscribe and do all that stuff. And then I’m going to also do this so you can see it visually on the screen if you’re watching. Press like, subscribe, and hit that bell to be notified. There. Now you’re happy, right?

Larry 01:00
I’m happy when we’re gaining subscribers. I think we’re closing in on 500 now.

Andy 01:05
Very cool, man. That’s good. But now–yes, you are going to tell me what we are doing this evening?

Larry 01:12
Well, we’ve got several listener questions. We’ve got a couple of articles. And I snuck something in that I really don’t even want to tell you what it’s about. I’ll just wait to get to it.

Andy 01:26
Is it gonna make my head explode?

Larry 01:28
It very well could.

Andy 01:31
Okay, I’ll wait. (Long pause) What else?

Larry 01:36
Well, let’s roll the train.

Andy 01:41
So I guess we’ll start with a voicemail question that this guy has written in. I cannot think of his name. He has given us voicemail questions a number of times in the past, and I know that he’s from New York. And he didn’t say his name. But here we go.

Unknown Speaker 01:54
Hey, fellas. With the recent ruling of Infowars and Alex Jones, who has now had to pay up a million dollars for defamation and a whole bunch of things. The rumor going on about freedom of speech and all this stuff and, and lawsuits and stuff of that nature. Does this kill freedom of speech? And if it does have some type of meaning, as far as somebody says something about you, and you get hurt as a result of it. Can that be applied to persons forced to register against the government or other entities that are using their websites to out us PFRs? And F.Y.P. Thank you.

Andy 02:42
I just want to make a correction in there. He may have said 1 billion, but I just want to make sure it was like $956 million. He was adjudicated against–is that the right terminology? Larry?

Larry 02:55
Yes, the judgment was almost a billion. It did sound like a million but when you’re speaking with that New York accent, sometimes you can’t tell. But there are several issues in his question. Freedom of speech is not in any type of jeopardy here. This has absolutely nothing to do with freedom of speech. Mr. Jones can speak all he wants. The government is not in any way trying to impair his ability to speak. The freedom that constitutional provision applies to is government intrusion. There is no government intrusion, and Mr. Jones can speak all he wants. But what this has to do with is a person who chose to deliberately, knowing the truth, to go out and spread falsehoods, disregarding the harm that it might have to the person or families that he was saying untrue things about, claiming that these shootings were a hoax and that they were a false flag. And what really hurt Mr. Jones in the trial process is he did not learn anything from his mistakes. He continued to be belligerent, constantly confrontational, and he continued to be in denial that he had done anything wrong. He has absolutely a right to continue speaking, as long as he has a billion dollars to pay each time a jury awards against him. Alex, you just go for it, and you speak all you want. But you don’t have the right to say false things about people. That’s just not a part of freedom of speech that you can do. And he did that. He claimed these families were trying to get rich off of a false flag. That was untrue. He knew it. And he’s being punished economically for what he did.

Andy 04:40
Is there any comparison of him making the statements and what the registry websites are? I’m specifically referring to the website. I get that you are guilty, like you are on the registry for second degree child offenses. But is there any comparison between what he is saying, and the registry websites?

Larry 05:05
You could really stretch to get there, because particularly with the leveling system where, rather than using a risk-based, individualized approach, they use the categorical approach. The public doesn’t understand that not all those tiers are not dangerous. So they’re communicating to the public that a person is dangerous. You could possibly get there that harm is happening. But you’re going to run into a whole different problem as a litigant than what the family’s ran into in this case. It is conceivable that a jury is going to be sympathetic to families of dead children who were killed in schools, when they were trying to do what they’re supposed to do, which is get an education. It is a lot more difficult to imagine a jury being sympathetic to the person who was required to register, even though they might have been flagged under that system with the categorical approach as dangerous in the eyes of the public. I dare say that if I were trying to be a jury consultant, in a case like this, it would be difficult to imagine how we put together a sympathetic jury on this. But perhaps it could be done with someone who’s a lot smarter than I am. But you’re gonna have a different standard to go up against, because what happened in your life is somewhat true–you do have a sexual offense and your past.

Andy 06:28
Yeah, unless you’re one of the very small people who actually are falsely convicted and all that stuff. But so these people lost a child, or the 20, I’m pretty sure it was 20 children that were killed and six adults, if I’m not mistaken. And he repeatedly said that these were crisis actors and stuff. And then they, because of the popularity was program, people were making death threats, and so forth against the parents of the children that were killed, is that the damage that was done?

Larry 06:59
That was part of the damage. Now, I’m not privy to all the details of the case. I didn’t follow that closely. But there would have to be a tremendous amount of emotional harm that a jury could easily identify with if you lost your child. And a person is saying that you’re a pathological liar, that you’re trying to get rich off of this. It didn’t happen. And this has created theater. I can’t imagine a jury being quite as sympathetic to a person who has been convicted of a sexual offense. I’m just having trouble figuring out how we put that jury pool together.

Andy 07:28
And I just have to ask you this question. You speak of morals pretty often, what do you think of the moral character of someone that would actually make that claim?

Larry 07:37
Clearly, he’s devoid of any moral character. He’s shown that over and over again throughout the trial with his belligerence, and I would expect him to continue losing trials, because he’s not going to change anything. He’s one of those who’s incapable of learning from anything that he’s done.

Andy 07:54
I should have grabbed a clip of it, Larry. I want to say this occurred during the Hillary and Trump debates. I have to tell you that I think it’s an amazing level of composure that–maybe was the first debate–when a fly landed on Hillary’s head, right on her forehead. And she didn’t like swat it as far as I saw. She didn’t react to it. But Alex Jones, twisted this all around, like kept slowing it down and slowing it down so this fly’s just slowly swirling around and plopping on her face. And he colored her eyes yellow, and he’s spewing out that she and Barack Obama are of the devil or something like this, and the flies are attracted them because they smell like sulfur. Those are the things that he would say.

Larry 08:44
Well, you know, the funny thing is, what’s sad about it is there’s an audience for that. A large one I know, for that type of thing.

Andy 08:49
I know, it’s amazing. It’s amazing how popular. Anyway, that question came in, I think today or maybe it was yesterday, and I just wanted to make sure we addressed it. Because it’s an interesting question. I’m super fascinated by how people follow Alex Jones it beyond entertainment, like we all know, wrestling is fake. It is, like male gymnastics, like they are very fit individuals, but it’s all scripted and all this stuff. And this guy is amazing that people beyond entertainment value, would listen to it, and buy his products, and believe anything that comes out of the guy’s mouth. Amazing.

Larry 09:25
I’m not shocked because I think the mentality of the American public has dropped to a low that I never expected to see in my lifetime. So I’m not surprised.

Andy 09:34
Okay, well, I think I can agree with you there. All right. Well, then let’s move along. We have a question from Dave in Georgia. He is interested in filing a class action lawsuit. We can stop right there, Larry. You have the most positive opinions about class action lawsuits, don’t you?

Larry 09:51
I do. Yes.

Andy 09:52
So he wants to file one against the state of Georgia on behalf of myself and all other PFRs in the state who are impacted by internet bans or restrictions. “I am currently on probation for Sexual Exploitation of a Minor in Georgia and am barred from any access to the internet as a condition of my probation, including use of a computer to search for jobs and use of any internet-connected devices at the workplace. I am an honorably discharged, disabled veteran, with a Bachelor of Science from the U.S. Naval Academy and a Master of Business Administration from Vanderbilt University. I am unable to find employment, as virtually all jobs across all industries require use of internet-connected devices. I am in court-ordered therapy and have discussed the potential of a class-action lawsuit with my therapists.” That is a really bad idea.” Other clients of theirs who don’t face total internet restriction are nonetheless unable to access the internet because they are unable to pay for court-ordered monitoring software to be installed on their personal devices. I am interested to know if NARSOL is aware of any organizations who would be interested in working with me to pursue a class-action lawsuit.” There’s a bunch there’s a whole show of stuff to unpack there, I think.

Larry 11:03
Sure, well, I would say that the first step would be to see if he can get a modification of his conditions of supervision to get the court to do that. Now I’m a little bit unclear if his probation originates in Georgia. If it does, you would go to the same court that impose the probated sentence, even if that’s not where you’re being supervised. And one would ask for a modification of the terms and supervision to permit monitored access. That would be the first step. Before trying to do any further litigation, you should give the trial judge a chance to fix this. And a good lawyer would understand that. They would give the trial judge a chance to give some access to the internet. It would be the most bizarre case where they would be able to justify a total ban. But your lawyer would go over with you and say–this is what they’re gonna argue in your case. They’re gonna say that based on these factors, these conditions were unique to you. And they’re imposed because of your behavior and will withstand scrutiny. But it’s difficult for me to imagine that a total ban would withstand appellate review. If the trial judge denies that modification and will not issue an order to his probation supervising authorities, then he should consider another route. Yes, in NARSOL I am at the moment still the coordinator of the legal project, and we are interested in that issue. The difficulty we’re having is putting together the talent that we need on the legal front in the state of Georgia to do actions that we’d like to do. There are a number of them that we’d like to do. But the lawyers are not beating the doors down to join us because we cannot compensate them for all the time that these actions take. They will take many, many hours. You’re looking at 500 to 1000 hours of billable time is going to go into a challenge like this, and we don’t have that kind of money. Figure it out–if you’re paying somebody 200 bucks an hour, which is low, and you’ve got 500 or 1000 hours, you can do quick math and see what it would cost. So the attorneys are kind of gun shy about going into these challenges. We have to convince them that the odds are very good on winning these. And this one, the odds are very, very good of winning. But he needs to go through the process first and see if he can get the modification.

Andy 13:26
Because the last one I remember was a West Virginia thing. Maybe that was even 18 months ago where they said you can’t do that. There’s enough case, whatever precedents and case law, to say that you can’t just make an outright ban on the internet.

Larry 13:43
That is correct. And it sounds like the state of Georgia and many of its counties, and the parole department of community supervision they are willy-nilly just imposing these conditions across the board on everyone. And yes, we are interested in that. But part of what you can do is set it up for us. One way you set it up is to get your trial judge to see if they can modify that you’ve done everything reasonable, and you become more appealing as a plaintiff in an action. And as far as our class action, we’re not really interested in doing that. They’re too complicated. It’s too difficult to get the class certified. It makes it wieldy and unmanageable. We can achieve the same objective by doing a small group of one or two three challenges. We don’t need a whole group of people. That’s just wishful thinking for people that don’t really understand the system and a class action. We can get the same result without a class action. We did the same thing with the Butts County and Spalding County case. We’ve got a precedent as binding in the three-state 11th Circuit Court. And we didn’t do a class action. We don’t need to do that.

Andy 14:43
Sure. And so I’ll throw my hat in there about discussing the potential of a class action lawsuit with my therapist. First of all, I think that’s a really crappy idea because you’re tipping your hand. But two, there’s two different kinds of therapists. There are therapists that are into actually treating people to make them better if they have some sort of problem. I had one like that. And he was like, I don’t see that you are a threat, so we’re gonna just move you through the process. But there are other people that are witch hunt kind of people. And because you’re in the class, you are an evil person, regardless of whatever the circumstances were, and they have an axe to grind with you. And if you do that, they’re going to make your life much more complicated. They’re going to report back to your handlers and so forth. And I think that that will make life significantly more challenging.

Larry 15:32
I would tend to agree with you on your assessment that always see that most of these therapeutic relationships as being nothing more than a collaborative fishing expedition. I don’t have a lot of faith in it. Now, there’s always the state that has the exception. Their kind of in the DC area. But other than that pure wind driven state, I don’t have a lot of faith in the tree. But although I’m a believer in treatment, it’s just that it’s misused as so many things are in the system.

Andy 15:56
Yeah, the sex offender industrial complex. I don’t know if it’s used anywhere else. But I remember hearing it here fairly early in our relationship and doing the podcast. Absolutely. All right. And then we will move over to one question from Carl. He writes, “Larry and Andy, I think there was a relatively recent decision somewhere regarding incarcerated people being held past their sentence expiration dates. Can’t remember exactly where or when.
In that vein, I correspond with a man in a county facility in Tennessee who has just passed his flat date (sentence expiration) and he is not being told when or if he will be released. He was not paroled, he served his entire sentence, which I believe (not entirely sure, I can’t always remember) was a failure to register-type thing. What I know about county places is, they are mostly staffed by people who are only lightly trained, mostly unprofessional and mostly unsympathetic regarding the people they hold. So what can be done for him? Any ideas? I believe he has contacted the public defender and his paid attorney but gained no traction from either. By the way, love the podcast, I am a (minor) contributor.” Well, thank you very much for being a patron Carl very, very much. It helps everybody that even just $1. It’s amazing that people do this.

Larry 17:13
What I would say in response to this is if he has described the situation accurately, if the guy has maxed out his industrial date, that usually means he has served every day of the sentence, if he maxed out his number, then what he would need to do is file a petition for a writ of habeas corpus. And that is the all-purpose vehicle to use to get your custodian, which sounds like the county sheriff, to come into a court and explain why you’re holding a person who’s flattened out their number. They would need to produce evidence of some sort of detainer, where they’re being held from another jurisdiction, or probation hold or something. But if he’s without any lawful authority, he’s got a good habeas action, and possibly, depending on the state of the law, he might have economic damages for being held in custody. But certainly he needs to file an action challenging his detention, and the most appropriate vehicle generally is a writ of habeas.

Andy 18:18
All right, that’s pretty clear cut. I got nothing else that we should touch there either. And we will move on to a question from Eugene. “I lived in Florida a few years ago in Lee County, Fort Myers area to help my mom. I think, I think God recently punished them for their hatred and cruelty.” I remember reading this one “I think God recently punished them for their hatred and cruelty. While there, I understood per ordinance number 11-05 that I could not go to the library, beach, swimming pool, YMCA, etc. Lee County did have a special program where disabled persons like mom could check out library books online and they would be sent by mail. So I ordered books (for Mom, of course), and postal fees were paid for by the county. I just listened to your show. And you stated that a PFR could not be prevented from using the libraries. Did I interpret the 11-05 ordinance correctly?” And he provided a link to the ordinance: https://www.leegov.com/bocc/Ordinances/11-05.pdf

Larry 19:12
I took a quick glance at the ordinance. I didn’t read it because it had too many strike throughs. But I can say the same thing I’ve said so many times through the years. They can do anything until they are stopped. What he’s referring to is I made a comment about the Albuquerque Public Library system having a complete ban some number of years ago and about a challenge going to federal court and up to the 10th Circuit. And the 10th Circuit slapped Albuquerque down and said you just can’t have a total ban. Now the 10th Circuit is not going to be binding in Florida. But it’s persuasive authority. But until someone brings a cause of action challenging that ordinance, Lee County can do it until they’re stopped. And perhaps it is time for someone who feels that they paid their taxes, and they should have that right to initiate a cause of action, challenging a total ban and see what happens. But the 10th circuit is not binding. But it’s very persuasive in terms of how well the ACLU of New Mexico actually litigated that, and they did a very good job. It’s well-briefed, and the decision was well-written. And it would be persuasive, even in the 11th Circuit.

Andy 20:22
So since the 10th Circuit is one away from 11, does that make it more persuasive? Since it’s closer?

Larry 20:30
Not at all.

Andy 20:34
I couldn’t resist asking a completely dumbass question. And then moving over to a question from patron Chris. “I am on Federal Supervised release for receipt of CSEM. I have had two technical violations in the past year for having access to a cell phone and a laptop. Once I was reprimanded, and the second time I was sent to the halfway house for 120 days. My question is does this count as recidivism? I did not get a new charge, just technical violations. Thanks. To clarify, I am wondering how violations compare to a new charge when it comes time to apply for getting off a registry. I would hate to think a violation without a new charge would sink me.” Now look, if we use super patron Mike as an example, his crime was like 100 years ago, and he had a very minor technical violation before he was even aware of the law, which they had just brought into place. And that has taken his ability to get off of their registry, which he is in the tiny little sliver of people that could, but that violation could tank him.

Larry 21:41
Well, there are unknown things about this. But if he’s going to be filing in one of the states that has a removal process, and typically you file those in your, in your court of conviction unless you’re from out of state, and then you file it typically in of the county where you live. If I’m the prosecutor in that county, and I have an angry public that wants me to be harsh on crime. In most counties, that’s what prosecutors are facing. That’s why we elect them to be tough on crime. Very few counties say, I’ll tell you what, I’m gonna vote for you, you’re gonna have to be lenient on crime. That’s the rarest of situations. The prosecution is typically who responds to the petitions. And I would just about guarantee you that they will use that if they intend to sink your removal petition. Because as he says, in his email, the technical violations seem to be related to the actual offense. So if I were the prosecutor, here’s what I’d argue, I’d say, Well, yes. He has served his time. Yes, he’s done all these things. And no, he hasn’t violated the registry. Per se, he’s been compliant. But during the period of supervision, he had difficulty adjusting to the requirements of supervision. And they reprimanded him once or twice, then they put him on house arrest. And he just seemed to want to skate around and not do what he’s supposed to do, which suggests that he presents an elevated risk to the community. So your honor, I would ask that he not be removed from the registry, because this is our last stand between having no way to track him. And this person seems to have the desire to avoid complying with what the requirements were. Therefore, please deny that. That’s what I would come up with just spontaneously. If I can think of that, I’m fairly confident they can think of that as well.

Andy 23:40
And they got to have almost like a spinner wheel that you would see at the fair with, we could use this excuse, this excuse, this excuse. They already have them already laid out, identified. And they could just pull one out of the hat and use this one or that one if they want to be clever and creative.

Larry 23:59
Well, in terms of recidivism, it doesn’t really count as recidivism, in terms of the literal calculation. There is no new crime, but it could very well sink is the registration petition.

Andy 24:11
A question from someone in chat asked if violations are felonies? No. And I was saying that they’re depending on what it is. I mean, if they say you can’t have alcohol, which would be sort of like a general probation kind of thing, then you drinking alcohol as an adult is not illegal, but it could get you in trouble if you’re drinking and your probation people find it.

Larry 24:36
Unless you commit a new crime.

Andy 24:39
Right, like failure to register things are felonies. That’s the only one that I can think of that being in this situation then puts you in a unique class of having that apply to you as being a felony.

Larry 24:52
Well a new criminal act, if it’s sustained with a conviction, would be recidivism. Whether it’s a felony or misdemeanor, that’s still recidivism. But technical violations where you’ve been ordered not to do something that a normal citizen has the right to do when they’re not paying their debt to society, those are just technical violations. That’s not recidivism in the literal sense, but it does often result in a readmission to prison.

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Andy 26:16
All right, well, then I guess, Larry, you people must be losing your mind. When I looked at the program outline, I was shocked and have no idea what you’ve been smoking. You want to talk about Social Security. We talked about Social Security Disability not long ago. And I’m just shocked. I don’t want to talk about so security on the Registry Matters podcast. So I titled this little segment “The Social Security Matters Podcast.” So you want to talk about social security here.

Larry 26:16
I do. Yes.

Andy 26:29
So what have you been smoking? You got your medical marijuana card, didn’t you?

Larry 26:48
I do, but I don’t smoke it. I chew it.

Andy 26:53
We talked about Social Security disability not too long ago. And this podcast focuses on issues to the registry, as I recall. I mean, it is called Registry Matters. But you have some clever reason for why you want to use up FYPs valuable time and are going to talk about security tonight?

Larry 27:11
Well, I was hoping I could sneak this out without you going ballistic. It sounds like you’ve gone ballistic anyway. So I have been smoking some good wacky weed, but I have not forgotten this is the Registry Matters podcast. But on a serious note, the reason is that Social Security just announced the cost-of-living adjustment or cola for 2023, which is 8.7%. The Social Security system by its design penalizes those who have been incarcerated in the benefit calculation formula. that’s reason number one. Reason number two is that I have strategies to help people maximize their benefits. And reason three is that many people have misconceptions about the program, and I want to dispel at least some of the misinformation.

Andy 28:01
All right. Well, before we dig into the security program too deeply, tell the audience what you mean when you say the formula works against those who have been incarcerated? Do I have to get out some sort of like chart to do math on the screen for people?

Larry 28:16
Well, Sure. It does that by the very essence of how one’s benefits are calculated. Your individual benefit is determined by looking at your Social Security contributions over your lifetime. They base your benefit on your Average Indexed Monthly Earnings (AIME) looking at the 35 highest years.

Andy 28:38
Can that just be simplified? You just said some mumbo jumbo? What about average indexed monthly earnings? What is that?

Larry 28:46
Well, they index all of your earnings prior to your 60th birthday to present day value. For example, a person who earned 24,000 in 1979 would have had a pretty good job but comparing it to today’s earnings, that person would almost be in poverty. They inflation adjust the 1979 earnings to today’s value. That’s what average indexed monthly earnings is.

Andy 29:08
But technically if you won the lottery, you have a massive increase in earnings that month. Does that count?

Larry 29:17
That does not. You’re not paying Social Security on that.

Andy 29:21
All right. And so I see where you’re heading with this. What happens if you’ve been in prison for 15 years, and you only have 20 years of earning history when you reach retirement? Does that mean you have a whole bunch of goose eggs in your formula?

Larry 29:34
Well, yeah, that’s the easiest way to explain that would be to answer your question with a question. What happened to your grade in a particular class, you had 35 graded assignments, and only 20 were turned in? We’ve got a professor that listens here sometimes. What would having received zero for the missing assignments do to your grade point average if you had 20 missing out of 35 assignments?

Andy 29:54
God. The funny thing is Larry, is I could get my kid to answer a lot of this because he might have 35 graded assignments and he only turns in 20 and he wonders why he’s got a shitty grade. Are you telling me that a person’s AIME is calculated with a whole bunch of goose eggs with 15 zeros?

Larry 30:09
You’re correct. That’s precisely what happens. What 15 zeros would do, even if you’d had decent earnings before going to prison?

Andy 30:18
Yeah, I mean, it’s amazing how bad zero effects on average. It would be devastating for sure. In the pre-show you mentioned another problem PFRs face. Can you elaborate on what problem that is?

Larry 30:32
Sure, as a result of being on the PFR list, many registrants are unemployed or underemployed. This means that their AIME takes an additional hit, which screws them at retirement. I mean, you’re working, but you’re earning $21,000 when you should be earning $67,000 If you were fully employed to your capability.

Andy 30:53
Before we get into the Larry-Strategy to maximize your benefits, what was the hot news that was just released by the Social Security Administration?

Larry 31:02
Well, the hot news is that all Social Security beneficiaries will receive a COLA cost of living adjustment of 8.7% with their January payment.

Andy 31:12
You know, it’s funny every time you say COLA, I think of the military, which is the cost-of-living allowance where they give you bonus money for living in San Diego versus living in you know, Oklahoma. That’s why whenever you say COLA, I think of that instead of cost-of-living allowance. And how do they determine what the COLA adjustment is?

Larry 31:31
It is determined by the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). Former President Richard Nixon signed the Social Security Amendments of 1972 into law, allowing COLA to be adjusted annually according to changes in the CPI-W, beginning in 1975.

Andy 31:55
From a bunch of podcasts that I’ve listened to and other research, there are a number of major spending categories with dozens upon dozens of subcategories, each with their own respective weightings (shelter costs having the largest individual weighting). The purpose being to measure the year-over-year change in price for each subcategory, major category, and the CPI-W index as a whole. Why do seniors object to this formula?

Larry 32:22
Well, they feel that it doesn’t accurately represent a typical senior citizen’s spending which has a much higher healthcare component than a younger person. I personally do not fully agree with that for a couple of reasons. First, many senior citizens have homes that are fully paid off and they are not subject to the ever-escalating rent expense that younger workers face. Second, a significant part of their healthcare is covered by Medicare. My personal belief is that the current COLA adjustment does a pretty good job of keeping purchasing power constant.

Andy 32:54
And you said that we’re going to discuss how formerly incarcerated individuals can maximize their benefits. And so can we go into that, please. So what do I do? What do I say, hey, Boss, give me a raise, or I’m gonna punch you in the face. Is that one of my ways to get a pay raise?

Larry 33:08
Well, there’s a few steps. If you do not have an online SSA account, set one up right away. And that means you go to ssa.gov website and you go through all the Kabuki stuff that they put you through it to make sure that identify you and you set up an account. And once you do that, and they confirm you, take a look at your lifetime earnings history and see–1) if the reported earnings appear to be accurate, and 2) count how many years of earnings you have. Remember the magic number is 35. If you do not or will not have 35 years of earnings to the system by the time of your retirement, they will insert zeros for those missing years.

Andy 33:47
And if a person has zeros, you can’t make up the years that you were gone and fill out tax returns to not have zeros. The only way would be to work longer, Larry.

Larry 33:58
That’s correct. Go out, get a job, and contribute to the system. Any amount of earnings is preferable to having zeros in the equation.

Andy 34:05
And so I see what you’re saying there. So do you recommend just go get a 20,000 or even a minimum wage making 15 grand a year instead of having zeros?

Larry 34:15
Well, I mean, I’m not a mathematician, but I tend to think that 15 to 20 thousand is better than zero. You’re a mathematician. Tell me–is 20,000 better than zero?

Andy 34:23
Last time I checked, I would rather earn 20. (Laugh track). Can you quickly tell me does if you are on some sort of have the means tested benefits? If you claim that you’re disabled in collecting a check from the government. Does that count as earnings?

Larry 34:39
Oh, well, it does not. Oh disability. Disability is not means tested in terms of your assets. If you’re on social security, disability is tested in terms of your earnings. You can have untold assets, and it doesn’t affect your disability payments. SSI is the one that is impacted by your assets.

Andy 34:59
Okay, um, so then sometimes in some private conversations, you’ve mentioned that there are exceptions when zeroes do not count. And I’m guessing that one exception should be when you are incarcerated because there is no reasonable expectation that a person be gainfully employed unless you work in one of those prisons where you’re making like, eight cents an hour, right. So you should be gainfully employed?

Larry 35:28
No, unfortunately, it doesn’t work that way. Being incarcerated does not count as a valid excuse from being absent from the workforce. But being disabled does.

Andy 35:44
How can they not? Like literally I’m asking this question how can they not count that as being not qualified? You are unable to work? I mean, I guess it’s your fault. You did the crime, blah, blah, blah, whatever. How can they not exclude those from your calculation?

Larry 36:04
It’s not in the law, they can’t give you a benefit. That’s not in the law. I suggest you contact a bunch of Republicans that serve in Congress–they’re the party of compassion–and suggest to them that people who have been incarcerated for–let’s pick a number for five years or longer–that that period should be excluded from the 35 and see how much traction you get.

Andy 36:27
So there was this guy that I knew. We called him turtle. And you can imagine that he was a very hefty young lad. And he had done 17 years, and didn’t have a GED, and refused to go get one. And so he was reasonably coming up on his departure date. And I’m like, 17 years, that’s basically half of the 35 years you’re talking about? So what does being disabled do in terms of security, then?

Larry 36:55
Well, we could easily spend an entire program on disability because there are many things that it does. The most important of those is that the zeros in your earnings history do not count against you, because the Social Security Administration does not expect you to work when you’re disabled. I mean, can you imagine that they actually don’t expect you to work while you’re disabled.

Andy 37:14
I would argue that being in prison would be a disability and restraint. Larry, I would argue that that would make be a true statement.

Larry 37:22
But it has to be a medical disability.

Andy 37:26
All right, well, then let’s do a hypothetical for a disability disabled person. A person had an industrial accident at age 44 and collected benefits for the next 15 years. Through advances in medical science, their injury was treated, and the person felt able to work again. Are you people saying that the person should go back to work?

Larry 37:47
Absolutely, yes, I’m saying that for several reasons. First, disability benefits are very low, and a person can generally earn more than what he or she receives on disability. And you see, there’s a fancy chart that shows what the average disability payment is, which was just shy of $1,400 in 2022. And it’s going up to over a little over $1400 2023. So that is reason number one. The second one–the person’s work would increase their monthly benefit upon retirement.

Andy 38:19
How so?

Larry 38:24
Well, remember I said being disabled is acceptable 35-year rule. So that worker and the hypothetical receive benefits for 15 years. And that period is referred to as a disability freeze. This means that those years do not count in the benefit computation formula. If the person works for several years, their benefit will increase because their AIME would be higher. This means that those years do not count in the benefit computation formula. If the person by the time you did your calculation of 59, if that person works for several years, if they managed to make it to their full retirement age, which depending on your birth could be 65,66, 67. Or somewhere between those numbers. They would have the opportunity to advance their average indexed monthly earnings. Because say that they get a good job being that we have such a shortage of workers right now. They get a good job, and they earn at a good rate. And those five years that they work are at a higher level than what they their average index earnings were at the time they’re on disability, they get a brand-new computation. So yes, if you if you go work, you’re gonna get more money.

Andy 39:21
All right. I got to think, Larry, it’s easy for you to sit there and tell people to go back to work. How scary it would be for a person like this guy, Turtle, 17 years in prison. There are some people that were in prison long enough that when they get out and they go, so you’re saying I have this card and I can go to this machine, and I punch in some numbers, and it spits out money. Like they have no idea what an ATM machine is. That is terrifying to me that people would do that. All the technology that’s changed. You’re not exactly the most like you’re not excited about technology. I would call you a technophobe, Larry. So technology has changed, and they risk losing their Medicare coverage. My understanding is those on disability receive Medicare coverage regardless of age.

Larry 40:02
You are correct. But they do have, there’s a program for that. First, the person is entitled to a nine-month trial work period where there is no earnings limit and still receive their full benefit. Second, SSA has a Ticket to Work and Self Sufficiency program where they pay for job training and other necessities to help you get back to work. Third, you are allowed to keep Medicare for 93 months after your disability ends by paying the monthly premium directly. Medicare is relatively inexpensive. The monthly premium is currently $170.00 and will decrease to 164.00 in 2023. So therefore, if you can earn $60,000 a year, and you’re being paid $1,400 a month, I would dare argue that you could afford to pay the $164 in Medicare coverage, and you would still come out ahead because you earn more money, you’d have more spendable income, and you would increase your future benefit.

Andy 41:00
Just to make sure we all have this scenario going correctly. At the age of 59, the person is in the hypothetical impact to work and work for the next six years. How would that increase their monthly benefits?

Larry 41:14
Let me explain that any work has the potential to increase a person’s benefit. Remember that they are calculating your best 35 years. For a disabled person they are doing the same minus the period of disability. This means that if they have six good years of earnings, their AIME could go up considerably. But working has the potential to increase any person’s benefit as well.

Andy 41:39
Right. So can you dig into that more?

Larry 41:44
Okay. Well, so the Social Security system–and you, being the techno genius that you are–they have this massive computer system that monitors everyone that is receiving benefits because it needs to be able to contact you. And it’s constantly looking at if you’re on benefits, and you’re working, it’s matching those earnings up each year. So after they get your income information and tax documents, Social Security will take a take a look at any work for that tax year. And they’ll figure it into your benefit calculation. And that benefit calculation members based on your 35 best paid years, if your most recent year, makes it into the top 35. They will delete the lower year; they will insert a newer year at the most recent year. And they will recalculate your benefit. And they will increase your monthly benefit to reflect that higher amount.

Andy 42:39
Is that process automatic?

Larry 42:42
Absolutely. It’s automatic. Social Security has 60,000 employees and have 60, almost 70 million beneficiaries. So you can see they don’t have a whole lot of time to work on each person’s. So the computer is constantly doing that. The computer does the calculation, and they notify you of an increased benefit. In addition, they make it retroactive to the first of the year. For example, any adjustment that’s made result of 2021 earnings is paid retroactive to January 2022. So the recalculation generally occurs in the second half of the year, after the wages and tax returns, that make their way to Social Security and the computers has done its calculations. They sent you a letter saying we have adjusted your benefits, you will receive a direct deposit for $960 record, which represents an extra $84 a month for whatever number of months before that and your benefit going forward is this amount.

Andy 43:39
There certainly an issue with our people. I’ve mentioned a friend of mine that lives in Augusta when he first got out, he’s fairly technically literate. I mean, that’s what he’s doing. Now, if he was like hauling pipe, steel pipes around a factory, because like that was the job and he was making roughly minimum wage near saying that people should do that in the face of rampant discrimination, your invite your advice is to work, if possible.

Larry 44:04
My advice is to get rid of every zero you can get rid of.

Andy 44:10
Do you think that the job market is more favorable for people with PFR type background issues because of the labor shortages that we are experiencing in the country?

Larry 44:25
Yes. I don’t forget that people that have these kinds of convictions do face discrimination and the issue of underemployment. I do get that. But I’m telling you, you’re better off to have earnings in the system. You’re better off working at our lesser paid job. And if you believe in America as much as I do, people may recognize your skill and you may get elevated to a higher salary very quickly. If you’re good and reliable. You know we still have somewhat of a meritocracy in this country. And so I encourage people to work. I’m not oblivious to the challenges, but there are employers that are needing bodies right now. And I think that, despite all the challenges, that almost anyone who wants to work can work.

Andy 45:21
Before we get out of here, can you tell me we want to go back to the COLA formula? Are you telling me that you would oppose a more generous COLA adjustment. If you are receiving Social Security yourself?

Larry 45:39
Well, I am beginning to receive benefits and I would not oppose a more generous COLA if we could figure out how to pay for the additional expense. Remember that COLA adjustments compound on adjustments made in previous years. Social Security is running a deficit and has been for a number of years. To simplify what I’m saying, the system is paying out more in benefits than it receives in revenue. The result is that the accumulated Trust Fund is being depleted.

Andy 46:06
Explain what happens when an if the trust fund is depleted?

Larry 46:10
Well, the accumulated trust fund, we’ve come on that question. If the trust fund is depleted, then we would be down to a pay-as-you-go system, or we’d be working on the income we have. In other words, the benefits that would be payable would have to match the income that’s coming in. was that surplus that has been accumulated in last 30 plus years is gone. And that, at that point, the actuaries estimate that the incoming revenue would cover 75, 77, 78% of benefits that are owed. Truthfully, like we’re still a decade away from the depletion of the trust fund. And those kinds of projections are difficult because we don’t know what kind of economic change is going to occur. What we do know is that change is rarely rapid, because of technological changes. We’ve learned in this pandemic that a lot of people can work off the premises. This doesn’t bode well for high paid earners. Because I hate to tell you high paid workers out there. The companies learned in Silicon Valley that you can work from home now. They also can figure out that people can in India can also do your job at a lesser cost than the six figures they’re paying you. So your job may evaporate. That would have a terrible impact on the trust fund of the income stream if all of a sudden 20 million jobs are offshored that are currently onshore. We won’t be collecting Social Security from those. They’ll be paying that to the Indian government or to whatever government we’re that those jobs are offshore shore to. So these projections are nothing more than guesses.

Andy 47:55
Can you clarify one point though. Fill in the gaps for me. When it was created, it was approximately 10 workers paid in for every one drawing from it. And now it’s like two or three are paying in. And obviously people are living significantly longer than they were back when the 30s or 40s when this was created.

Larry 48:16
You’re correct. I think the ratio of workers was even greater than 10. In the earlier days, and now the ratio of workers is less than three for every person collecting. And with our low birth rate and our hostility to immigration, we’re just dead set against having people come in and work even though we have 10 million open jobs. I don’t know how we’re going to plug the gap of that. And our system as it’s currently designed, depends on revenue being contributed from people who are working. It does not rely on general fund revenues for Social Security. It is strictly the taxation that is paid by workers.

Andy 48:59
Specifically that line item that you see on your pay stub is what funds the Social Security. And usually it’s 50% from the employee and 50% from the employer. Right?

Larry 49:11
That is correct. When you look at that number on the social security component, the employer is matching that. On Medicare you never max out on that. You can pay it on all your earnings. On the Social Security side, it’s going up to 160,200 I think, for 2023 where they stop collecting it. But still there’s a lot of wages that are not subject to Social Security. People earn a lot of money out there–professional athletes, executives, on and on earn lots of wages, and then they have creative ways to avoid wages. A lot of executives take their compensation and stock dividends and cash payouts, which are subject to only capital gains taxed at a very favorable rate of only 15%. And they don’t pay any social security on that. So the system has challenges. And then we have the whole new gig economy where a lot of the people who are earning decent money, they’re not contributing anything into the system, but yet they’re earning money. And that’s one of the things that those 87,000 new IRS agents are going to try to figure out– how to capture some of that unpaid tax from the gig economy.

Andy 50:22
How much money–Rocky asked the question in chat–how much money did the government borrow from social security? Isn’t that a misnomer? Isn’t that not the truth that there’s IOUs in there. Wasn’t a total amount borrowed–19-point, 17 point, 5 billion is what he says.

Larry 50:36
No, that is not true. The government borrowed every penny of the trust fund because that is what they’re required to do with it. Just like when you take your money to the bank, and you give it to the bank, which is a form of either a short-term demand deposit or a long term, or even short-term certificate of deposit, you lend it to the bank, you have no more control over it. So the Social Security system has lent the US government just shy of $2 trillion. And the Social Security system is collecting interest on that from the Treasury obligations that are yielding somewhere around 2 to 3%. And that is a revenue stream that also helps fund social security. But as social security needs that money the hand the IOU to the government. And they say we need to cash these; in the same thing you would do when you need your certificate of deposit. That is complete bunk, Alex-Jones-type of bunk. The Social Security system is only allowed to deposit their surplus into US Treasury obligations by statute. If you don’t like that system, then you need to encourage Congress to change the investment options. But right now, they lend every dollar of surplus to the United States government and the full faith and credit the United States government is standing ready to make those IOUs good. When they cashed him, those were those treasury obligations, and they have cashed in a number of them. They’ve actually been drawing down that fund for a few years now. The interest they were collecting from 2010, that’s when the Social Security system started not collecting enough money. For several years, the interest that they were earning on the Trust Fund was enough to make up for the difference. And they are still okay. But now they’ve gone and started going into the trust fund itself because the interest is not enough. And as you withdraw from the trust fund, the amount of interest declines, as you have left less money in the bank, you get less interest as a general rule unless interest rates are going up dramatically. So we have the challenge of the fact that the trust fund is being spent now.

Andy 52:32
So for a bajillion years, I’ve always heard that like, oh, it’s gonna run out of money, blah, blah, blah. So what will likely happen? What do you think will happen if the trust fund does go broke?

Larry 52:42
Well, it will, barring any changes in financing, it will run out of money, I don’t see anything that was stop that. But I do not believe that Congress will permit complete depletion. We’ve gone through this path before. In the late 1970s, after the big giveaway when they gave a 20% increase in ’72, which they couldn’t afford. By the late 70s, when Jimmy Carter was president, they had to increase the payroll withholding rate. And they had to increase the wage base subject to taxation. Again, in 1983, when we were in the deep recession in the Reagan administration, they had to go ahead and roll some of those tax increases forward that had been passed in 70 and 77 and 78. And I don’t believe that as we approached, that brink of depletion, that Congress is just going to sit back and let 10s of million people turn on them and say, Why are you cutting my benefits? I just don’t see that happening. They didn’t let it happen in 77, they didn’t let it happen in 83, they’re not gonna let it happen in 2034. With approximately 70 million people receiving benefits, that’s a powerful bloating voting bloc, and rather than facing the wrath of millions of angry voters by reducing benefits across the board, they’re going to find a way to fund social security by either raising the taxes or looking for new revenue sources of some kind. But they’re not going to let it deplete. People, you can spend your time worrying about something, but this is not what you need to spend a lot of time worrying about, because they’re not gonna let that happen.

Andy 54:10
Anything else? Let me see if there was another question. Paul was asking a question. Let me see. I want to try and figure out the way that he was asking this. Doesn’t the employer tax go to the state the employee, or the employer is in or the country the company is in, regardless of the employee’s country? I’m thinking that the offshore workers they’re going to be there. I mean, they’re not going to be 1099. But that would be the equivalent. They’re going to send an invoice to the foreign country. So the company is not paying for Social Security, and there’s no headcount inside the United States that you are an employee in that country.

Larry 54:49
Well, I’ve never professed to be an expert in this, but I’m assuming that if you go into the country of India, and you hire people in India, they are probably not subject to US Social Security.

Andy 55:00
Last time I checked, they’re probably not going to be.

Larry 55:03
So, therefore, the Apple Computer Corporation will probably not withhold Social Security for an Indian employee. And I don’t mean that as in terms of an American Indian here in our country, I’m talking about a person in the nation of an Asian-Indian.

Andy 55:16
The nation of an Asian Indian.

Larry 55:19
I don’t see that that would be an issue. If they offered jobs, the whole reason for offshoring jobs is to get cheaper labor, and less benefits.

Andy 55:32
And that goes to the same thing with a gig economy. If you are a 1099 employee, then the company has now moved you from the like the liability common column, and now you’re at an expense. And if I’m not mistaken, they write that off as one of their expenses, you you’re getting paged at $10 an hour, whatever that is.

Larry 55:52
Well, that is correct. Now, the 1099 is slightly different because you as an individual, you could report that income, and you could pay the Social Security on it. The problem is nobody does. What I mean, very few people do. They say, well, let me try to figure out what some good business expenses because I got this 1099 for $64,000. And I have to figure out some way to bring the number down, so I don’t have to pay because you have to pay both halves because you’re the employer and you’re the employee. So all of a sudden, your Social Security went from a combined rate of 7.65 took to a total rate of 15.3. And you don’t want to pay that. But you could do that. You could achieve the same goal by just loosening up your purse strings and reporting it as self-employment income. And you could pay that tax, and you could get the same benefit and social security system. But people don’t think about that when they’re 27 years old. They’re thinking about living as best I can now peg their high rent in Los Angeles. They’re not thinking about when they’re 6566 years old are not thinking that far out.

Andy 56:56
I understand anything else here? I think we’ve done enough. So security for the Registry Matters podcasts that we can do for one night.

Larry 57:04
Well, I’m hoping that our transcriptionist will put all those abbreviations that I painstakingly spoke in the transcript so that people will know what we’re talking about.

Andy 57:15
Well he is on notice because he is here listening. There are a few articles that you want to cover, and we have fiveish or so minutes to cover.

Larry 57:25
Maybe we can do one. Which one would you like to do?

Andy 57:29
Well, you put in here that you’d really like to cover this one. Nearly half of the approximately 3,000 people sitting inside the overcrowded Fulton County Jail in Atlanta have not been formally charged with a crime, according to a new analysis by the national American Civil Liberties Union and the ACLU of Georgia. What’s wrong with this? Larry, I don’t see a problem with this.

Larry 58:02
The problem is the county has decided to pay for housing up to 700 people at the Atlanta City Detention Center—but the ACLU says the data shows significant numbers of people inside the Fulton County Jail can instead be released. And they are presumed innocent under our system. So released them, Fulton County.

Andy 58:28
What was the next part of that? Oh, yeah. So 45% of the people to paint detained in the jail have not been indicted, even though Georgia law requires that a person who is arrested and denied bail must either have their case heard by a grand jury within 90 days or be granted bail. If you haven’t been indicted, how are you…? You’re being granted bail on because we…Like how does that even come about if you don’t get indicted with anything?

Larry 58:56
Well, you’ve got an arrest, or you’ve got a complaint that’s been filed against you. There’s been an affidavit for an arrest and a person has gone to Georgia to a magistrate judge in Georgia and sworn under penalty of perjury that you’ve done these things, and they’re holding you under that. But that same law also says if a person has held more than 90 days without indictment, the incarcerated person can petition the court to have bail set. Now the correct way to make this system work would be to have the law mandate that they be released if they’ve not been indicted within 90 days. That’s our process here in New Mexico. And amazingly, they find a way to indict people within the timelessness.

Andy 59:36
This is just–we want to hold them because we’re angry at them because someone said they did a bad thing. And they haven’t done their side of it. Is this a financing side that they don’t have enough manpower to look into the individual to see if there’s anything where they’re going to the grand jury? Is that a manpower thing?

Larry 1:00:00
I think not. I think it’s probably a lot to do with the COVID pandemic and the way the court system got backlogged. People started working from home. And despite all the protestations, they’re not as productive when they’re working at home. Trust me, I’ve tried it. I mean, people work from home, they take it as an opportunity to work on their personal affairs. They somehow don’t believe that they’re supposed to be giving every moment of their time when they’re on the clock to you. I have a feeling that that they work at home crowd has decided that they don’t have the ability to function. And trying to move the backlog and get these cases done is just an impossible undertaking. But it seems like to me that the way to move it forward is to release the people. And they will find a way to keep the people in custody that really need to be in custody that are a threat to the community. But the way it is now, there’s no incentive because you can file a motion for bail. And they’ll schedule a hearing when it’s convenient.

Andy 1:00:59
Riddle me this, sir. Pretty much everyone that is involved in this process, puts their hand on that Bible, as you would say. Can you say that word for me?

Larry 1:01:08
(In deep Southern accent) They put it on that Bible.

Andy 1:01:10
Thank you. Everyone has to drink now. They all swear to uphold the Constitution, all that stuff? And isn’t this a violation of their civil liberties? Like in the truest sense, most pure form, that they are having their civil liberties violated by being held without being charged with anything without being granted bail? Like all that?

Larry 1:01:29
Yes. But it would be an amazing, elected prosecutor that would say, I’ll tell you what, Your Honor, if we can indict these people in conformance with the requirements of law is that they will be released. Can you see that happening?

Andy 1:01:41
I somehow, I actually can maybe I’m just super naive. But I mean, a judge is there also like reading the text on a fairly regular basis. Maybe the prosecutor is not. He’s looking on the other side of the law to see what he can prosecute people for. The judge seems to be on the other side, upholding those kinds of values.

Larry 1:01:58
What I’m saying can you see a prosecutor making that argument that our office has failed to be able to do that. I hope you can show me when one does.

Andy 1:02:11
Okay, so maybe I’m being naive and Pollyanna. All right. Okay, so this sucks. People are being held, hey, you were felony jaywalking, and you are just being like, looked poorly upon and you can’t get bail or anything. And meanwhile you’re losing your house, your car, your girlfriend or boyfriend and job and all that stuff, right?

Larry 1:02:35
And the sheriff’s solution is to ask for more money for jail space. He says we need a bigger jail. But in the meantime, I just need money to house people in other jails.

Andy 1:02:44
Maybe we should take like the old Atlanta Braves stadium and use that to house people because there’s just a bunch of empty seats there. Well, we should support that one. Um, anything else before we go? Can you plug next week? What are we doing next week.

Larry 1:03:04
Hopefully, it’s going to turn out to be a great podcast next week. We have a guest named Ashley. But it’s not the regular Ashley that people are familiar with. It’s the spouse of a person who is serving time in Fort Leavenworth and the Joint Regional Correctional Facility. Whatever it is anyway, there. They were there in Fort Leavenworth, the military prison that has a very high percentage of people that have sexual related offenses. And hopefully, we’re going to be revealing some of the atrocities, and I’m using that loosely. But I consider some of the stuff that I’m hearing to be atrocities in terms of what we expect of our criminal justice system. We’ll probably spend the most if not all the episode, talking to Ashley, about what goes on in that facility. And we’re hoping that maybe our podcast will get shared with others because we’re trying to enlighten the community. This is one of those things where people always say thank you for your service, you’re such a patriot. But then all of a sudden, forget all about your spectacular service and your awards. Once someone accuses you of one of these offenses, they throw all that out the window, and you’re presumed guilty because the person made the accusation against you. We’re gonna dig into that hopefully next week.

Andy 1:04:20
Very good. As we do just about every Saturday, we record this at around 7pm Saturday in Eastern Time. And from there, you can find the show notes over at registrymatters.co or FYP education.org. Leave voicemail at 747-227-4477. We’ll play it if it sounds right. And email registrymatterscast@gmail.com. And of course, for those that support us on Patreon, thank you so much for the support. And there are some other folks that donate through FYP Education. We had a whole bunch of people in chat, and it was very, very, very chatty. And thank you all very much for coming. Those are patrons and I love you all so very, very, very much and you can support us over@patreon.com/registrymatters even for as little as a buck a month. We’re just trying to have a bunch of numbers of people that support us, even if it’s a buck. That’s all I’m asking for. And without anything else, I bid you adieu, sir and I hope you have a fantastic evening, and I will talk to you soon. Good night.

Announcer 1:05:18
Goodbye. You’ve been listening to F.Y.P.

Listen to RM241: Alabama Rules PFR Restrictions Just a Civil Regulatory Scheme
https://www.registrymatters.co/podcast/rm241-alabama-rules-pfr-restrictions-just-a-civil-regulatory-scheme

Download the transcript here
https://fypeducation.org/wp-content/uploads/2022/12/RM-241-Print-Final.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 241 of Registry Matters, recorded on Saturday night, October 8t. Right?

Larry 00:29
Well, not exactly Saturday night. We’re a little bit before Saturday night.

Andy 00:34
like 24 hours on the nose.

Larry 00:38
24 hours on the nose. Yes.

Andy 00:40
And why are we here early. You people are doing something tomorrow?

Larry 00:43
I’m hoping to do something. The Great Albuquerque International Balloon Fiesta is operating through Sunday. And this is the 50th anniversary at the Fiesta, and the 100th anniversary of the radio station that started the Fiesta in 1972.

Andy 01:02
You mentioned that it might not happen tomorrow night because of some inclement weather. And I told somebody this and they said Larry said they never have weather.

Larry 01:11
Well, you know, this Fiesta has been unusually wet. They tried to cancel some of the sessions. But it looks like it’s clearing off out there. And I’m more optimistic that we’re going to be able to go right now. The only question is if my partner is going to be available to go because the partner is the key to how we got the special VIP tickets. And I’m not really sure that I want to go with the VIP ticket without the person whose name is on it with me.

Andy 01:40
How many balloons show up? This being the 50th, I’m sure it’s even more than normal. But is it hundreds? How many balloons show up?

Larry 01:51
It’s about 600 roughly. They have had more. When they went to the present launch site back in the 90s when they got their own park, they ran it up to 1000. And they realized that was not manageable. So it’s typically in the 600 range. But they come from many countries. And it’s a fiesta like no other. When you compare it to what started in ’72 with 13 balloons as a part of KOBs birthday celebration. And they were putting the station’s insignia on the side of the balloons to fly over the city so they could celebrate the 50th anniversary. To imagine that it morphed into what it has over the last five decades. It’s just unbelievable. We bring out a million people to visit the Fiesta. And it’s just a phenomenal event. It’s fun to be there because it’s a well-behaved crowd. You don’t have all the dredges of society that you might have at a fair. It’s exciting to be at the Fiesta. I haven’t been out there several years. But hopefully we make it tomorrow.

Andy 02:59
One last thing–balloons don’t really drive much. So how do they manage keeping anybody from crashing into somebody else?

Larry 03:12
Well, I don’t know if I can fully understand it explained that. But they do refer to the Albuquerque Box and the prevailing winds here because of the location of the mountains being to the east. And the way the air settles into the valley at different altitudes you can rise. And the winds are different as you go up to a slightly different altitude. So you can leave the Fiesta launch site, and if the box is working, as it often does, you can circle back to where you launched from by using the prevailing winds.

Andy 03:49
Sure, totally understand that. Totally understand that. If we had our pilot guy here. He said he was going to be here, but he’s not here. He could explain all the wind layer thingamajigger as you go up in the different altitudes and go this direction or that direction. Anyway, I’m going to turn off the rotator thing and I’m going to say to people make sure you press that like and subscribe button and the bell, so you get notified and subscribe in your podcast app, and five-star review, and all that above–blub, blub, blub up.

Larry 04:21
Now you just messed up the transcriptionist. How is he gonna spell that?

Andy 04:26
He’s never gonna spell it, but he’ll figure something out. Tell me, sir. What do we have going on this evening?

Larry 04:33
We have two significant cases to talk about. First, the 11th circuit court of appeals. That’s going to take up the bulk of it. We’re gonna talk about a long-awaited decision regarding the Alabama sex offender registration statute, and its constitutionality. And then we have a New Mexico Supreme Court case talking about what a person released on parole are entitled to and what the Supreme Court decided in terms of those hearings that the parole board has been refusing. We’ve got a couple of listener questions, and we’ve got this short video segment of a high-profile trial that’s going on right now of a guy that’s really strange.

Andy 05:17
All right. You know, I think that we should start with the video trial. We’ll do this segment really quick. Can you set this up.

Larry 05:30
This is the high-profile trial of Darryl Brooks who was accused of mowing down, I forget how many people, on a Christmas parade.

Andy 05:39
He’s got like, 70 counts of murder, attempted murder, or something like that.

Larry 05:43
It’s awful. And the guy is totally certifiable in my opinion, although I’m not qualified to certify anybody. But if I had the qualification, I would certify this guy. He wants to represent himself, the court agreed, and released his attorneys to represent himself. And he’s just making a spectacle out of everything. So we can’t begin to cover this trial. But the sad thing about it is, I believe this guy is really nuts. I don’t believe that this is an act. First of all, you look at his behavior of what he is accused of doing. He’s still presumed innocent, but you look at his behavior, if he did those things. And then you look at how he’s comporting himself. And the fact that he’s got life, many times over, looking at him and he fired his attorney is just, it’s sad. But this judge is being very patient, far more than I can be. So we got a couple excerpts of the judge interacting with him since he’s representing himself.

Andy 06:47
All right. Well, let me see if I press this button, and then that button–doesn’t work. Why doesn’t it work?

Larry 06:53
Because it’s broke?

Andy 07:02
You know what? The operator broke it. I did all the things except for the thing that I needed to do to make the thing do the thing.

Larry 07:10
Well, I can babble while you’re fixing it. So the thing that troubles me about this case is that it’s likely, in my opinion, to come back on appeal that he wasn’t capable of representing himself. And this is just a circus show. And they’re going to have to give him a new trial with representation. And he is entitled to represent himself. But he’s turned it into a spectacle, so he can’t get a fair trial. He’s pulling off his shirt. He’s been separated from the regular courtroom because he won’t stop interrupting. They can’t overpower him. I mean, you can mute his microphone, but they can’t stop him from overpowering and interrupting continuously. So they’ve got him in an adjoining courtroom. muted, but watching on video and listening on audio. And he’s just not getting a fair trial, because he’s not capable of getting a fair trial. He’s not an attorney. And he doesn’t know the process, but this is going to be a disaster. But go ahead if you’re ready.

Andy 08:13
I’m ready. Okay, let me try again.

Judge Jennifer Dorow 08:18
Mr. Brooks, you just interrupted me within a minute of us starting this case here today. I’m asking you to respectfully not interrupt me–that’s the second time–so I can go through the list of things that I need to get through this morning.

Angenette Levy 08:32
The trial for Darryl Brooks–the man accused of driving through the Waukesha Christmas parade last year, killing six people begins, and Brooks is representing himself as a sovereign citizen. Welcome to the Law and Crime Sidebar Podcast. Darrell Brooks faces 676 counts in Waukesha County. Six of those counts are intentional homicide. And we’re looking at the top moments of the Brooks trial so far with opening statements beginning Thursday. The day started with Walker Shaw County judge Jennifer Dorow asking Brooks to put on a suit.

Judge Jennifer Dorow 09:01
It is your choice, though. Are you willing to go back to your cell and put on your suit?

Darryl Brooks 09:15
It is my right to do so or to not do so. And at this point, Your Honor, who doesn’t know that I’m in custody?

Judge Jennifer Dorow 09:24
Mr. Brooks, I’ve had many trials with individuals who were in custody. And when I’ve talked to the jurors after the conclusion of the case, they had no idea. The whole point of allowing for street clothing is not only to shield jurors from the fact that you are in custody, but also you being in a suit and a tie or other street clothing, I think also lends to the dignity of the proceedings. This is a trial. Again, it is your choice. Are you willing to go back to your cell and be dressed in the street clothes that you previously appeared in?

Darryl Brooks 10:09
In due respect, I do not agree with that assessment whatsoever. There is no possible way that anybody will not know that I am in custody. I think that’s a well-known fact because it’s reported on every day in the media. It’s shown every day on the news, where I am which jail, I am housed in and that I’m in custody, it’s virtually impossible for anybody to not know that I’m in custody.

Andy 10:40
So there you go. There’s two minutes of it before they go into a whole bunch of other talkie talkies about it.

Larry 10:47
Yes, I’ve never seen anything like this. But it reminds me of a case I worked on about a guy that was convicted in Georgia–ultimately, he moved to Texas. I worked on a team trying to set aside his conviction. He was not competent to stand trial. He was acting erratically. And the judge ignored that. This judge is ignoring his behavior. Now, there are things we don’t know. There could have been a competency exam before–a psychological and psychiatric workup on him. And they may have already concluded that he is competent. And he knows what he’s doing. He’s doing this deliberately. But if those things are lacking, this high-profile case runs the risk of being overturned on appeal because this man can’t get a fair trial because he’s already irritating the jury in the way he’s conducted himself.

Andy 11:43
There was a segment in that whole video clip that he is shackled at the ankles or whatever. And he won’t just chill out for a minute so the deputies can take off his shackles.

Larry 11:55
Well, they’re deliberately keeping those on, but they have the skirting around the table. They do that to make them invisible. So they’re sitting there with their hands free, but their legs are shackled. Because, if they get a jump on you, they can make up some really fast time. Those deputies are sometimes on the large side and can’t make up that time. If they get several beat on you. If they happen to hit the doors just right, they can get out the courthouse, you know, and they could be on the on the run. So yes, they do have him shackled below, but they have skirting around the tables. And the tables look like the defense table and the prosecution table have the same skirt. So you can’t conclude anything from that. The guy’s just off his rocker.

Andy 12:40
All right, well. We can move on from that then. Okay. And this is a listener question from Deborah. And I will thank you later, Deborah. Deborah increased her Patreon donation fivefold, Larry, fivefold. 1-2-3-4-5.

Larry 13:01
Did she go from 100 to 500 monthly?

Andy 13:04
Sure, whatever. The $1,400 stimulus money or 2400? Divide that by five. So it was like just shy of 500 to 2400.

Larry 13:12
All right, we’re joking, folks. But go ahead.

Andy 13:15
Yes, of course. So she asked what Larry’s recommendation is if the PFR is on parole, and they are told they have to take a computer voice analysis test, which is she put in parentheses “a hyped-up polygraph test.” So right off the bat–polygraphs are Kabuki machine, so it’s BS. It’s pseudoscience and means nothing. But what is your professional opinion for a PFR on parole that has to take a Kabuki-machine test?

Larry 13:46
Well, I would advise that they cooperate with that testing regimen. Because I’m assuming that he signed that agreement in order to be granted parole. This is a person who has a conviction, as I understand it, from the military, and they actually do parole them prior to the end of their sentence. So he’s getting actually a favor. He’s getting out early, unlike in New Mexico where you serve all your time. He’s actually out early. I would advise him to remember that he signed an agreement to go through their treatment regimen, which includes polygraph or some truth detection process. But keep in mind that you have a fifth amendment right in the United States of America to not incriminate yourself. And that is where he’s got to be careful. Because if he says no, I won’t pick the polygraph or the voice test, that’s not going to go over well. But if he says yes, I’ll take it, and then in the pretest interview workup, they’re going to disclose the questions to him. My recollection is that I had one of these one time when I worked for convenience store back in the 70s. And my recollection is that they do the same thing that they, when they wire you up for the voice stress analyze, analysis, as I do with a polygraph, they go through the questions. Like, for example, in a convenience store business, it was generally because of lost merchandise or cash shortages. So they would try to build questions around whether you had anything to do with the inventory shortage, or the cash shortage that turned up. And if the questions would be geared around had you ever stolen anything in your life, that’s not relevant. If the relevant subject matter is, while working here at the magic market in the last 30 days, we’re short a $900 shortage on inventory. Did you give away merchandise? Or take merchandise that wasn’t paid for? You know that question is going to be hitting you? Because they’re going to tell you that question before they wire you up? And if they were to ask you, if they were framed with the question of say, have you ever stolen anything in your life, then that’s a bogus question. And that does risk incrimination? Because you could say, well, I’m not going to have to decline that question, because it’s too broad. And if I were to say, an answer to that, I would subject myself to prosecution. Well, the same thing is true–if the answer to this specific issue is that you have been stealing from the company, you can also subject yourself to prosecution. So it’s very difficult to figure out when you could decline the questions. But you do have the right to decline the questions if there’s a credible threat of prosecution that you’re going to expose yourself to that. At least in the 10th Circuit–remember, we talked about Von Behren.

Andy 17:03 We had him as a guest once.

Larry 17:06 Yes, we did. He attended a conference. Mr. Von Behren said I can’t take those questions. And they were able to get an emergency injunction against the exam. But this guy needs to cooperate as best he can and see what they’re going to ask him, and then raises objections if there’s threats to incrimination and prosecution.

Andy 17:33
There was a person if I recall, even in Georgia, this was probably pretty close to the beginning of our relationship, Larry, that said, Eff you, I’m not taking a polygraph. And they put him in jail. I believe.

Larry 17:46
I do recall that. And that’s exactly what they’ll do with this case. If he says, no, I’m not going to do it.

Andy 17:53
Can you go back over something? I think you just said it when we were talking earlier today that if they ask a question that may be like too broad that opens yourself up, but you can negotiate or something, about the question and honing it down and narrowing it into a specific thing of what exactly are you asking?

Larry 18:09
You can indeed now. I don’t pretend that every polygrapher has integrity and honor. All I know is that the ones that I’ve dealt with generally have, and if you express concern about a question being too broad, and it’s going to cause a reaction, the examiner, theoretically, doesn’t want to hose you. The examiner’s trying to get at, quote, the truth. So the examiner is gonna say, Well, what’s your concern about that question? And, well, you’ve asked a question that would include not only this inventory shortage in the last 30 days, but you’re asking a question that includes time I didn’t even work for the Majic Market company. So that’s what I’m concerned about. So let’s try to narrow down where we’re focusing on this. A good polygrapher is gonna say, oh, I see your point. But I’m not saying they’re all good.

Andy 19:06
I just struggle with the idea of good and truth when you’re talking about a pseudoscience thing that doesn’t do any of these things other than record that you’re sweating a little bit more or your heart rate and breathing rate has changed. It just irritates me at the core.

Larry 19:21
I know it does. But as we talked about in pre-show, I was sold on it because every person, every client we had, when we presented them with the scoring, and how much deception they had shown, because it scored you know, your minus five, minus seven, plus five, or whatever. When we said this is what the examination has revealed, they all confessed that yes, I actually did do it. So you have an answer for that so you can share it with the audience. But in my mind, it worked because the people said yep, I did it.

Andy 19:55
Yeah, it just scared them. It’s a reverse placebo if you think that the doctor wearing the nice coat gives you the sugar pill that it is going to make your pains go away. This is just working in reverse in that it scares you into admitting. And when they ask the question, did you steal the candy bar from the grocery store? You’re like? No. Why would you think that? So that just scares you. That’s all it is. It’s a Boo Game. Boo Game.

Larry 20:17
So I take it that you’re not going to be investing in in a polygrapher anytime soon.

Andy 20:24
And then I was talking to our friend in Georgia who got locked up that you helped get an attorney for. He had a polygraph machine at home. And I was like, you had some game on your phone? He goes, no, I had like, the whole thing where it wrapped around his chest and head. I was like, Oh, my God, dude, you’re so doomed. You’re not–how do you explain? Well, I just had it for understanding how the system works. Like, how are you going to explain that away from the judge when they don’t lock you up for trying to cheat against the polygraph?

Larry 20:51
Well, I do not advise you to possess a polygraph machine while you’re on the supervision.

Andy 20:59
Oh, my God, [laughter] That was so really ridiculous. Anything else that before we stroll along?

Larry 21:04
I think that’s the best I can do, not knowing if there’s any case specific case law. I didn’t do a circuit search for cases on this topic. But based on what we’re about to talk about, I’m not optimistic that the 11th circuit is going to have anything that resembles as much coverage as the 10th circuit did in the Von Behren case. They may have far less protection. But I don’t know the answer. He needs to talk to an attorney that can do the research for the circuit and for the state of Alabama State courts as well–even though it’s a federal conviction–because that can be used in terms of if Alabama has a new law that limit the polygraph. So yeah, they need a legal professional. Well, oddly enough, I told you about working in the convenience store business. The law that restricted the employers was signed during the Reagan administration by Ronald Reagan. And pre-employment testing was heavily restricted as a result of that change in the 80s that Reagan signed. And like the company, the store was named Majic Market, but the company was Munford Incorporated. And Munford was a big believer in the polygraph for pre-employment and for investigative purposes, and Munford had to curtail the polygraph because they can only use them after that reform for specific investigations. Now they exempted the certain aspects of the federal government for national security. They could continue to do them like the FBI, and certain national security applications. But you could not just do a random polygraph when everybody has a condition of employment. And Ronald Reagan signed that. So just because it’s the state of Alabama doesn’t mean that they don’t have anything good on the books down there. But it’s probably doubtful, but not necessarily the case.

Andy 23:03
All right. Well, you people put two cases in here. One is from the 11th Circuit of Appeals, and the other is from New Mexico Supreme Court. I believe that you’re familiar with those people in New Mexico. And let’s cover the 11th Circuit One first. Nobody cares about New Mexico anyway, right?

Larry 23:19
That’s what I hear because we don’t have many people here. So who cares?

Andy 23:23
Like what’s your population? Half a million?

Larry 23:27
2.1 million. Thank you.

Andy 23:30
Oh, sorry. Okay, I can count those on my fingers and toes. So this is about the guy that I do. Remember, the guy moved to Alabama from Colorado, where he wasn’t required to register. But he then also decided to call up the office a bunch of times, I think, back in the 80s, despite the fact that he wasn’t registered and never had been. He checked in with law enforcement in Alabama, and they said, Yep, you have to register here. That’s funny.

Larry 23:55
That’s funny?

Andy 23?57
Yes, it’s funny.

Larry 23:58
Really, I don’t think I ever hear to say those words.

Andy 24:05
So what happens next?

Larry 24:06
So, you do have a good memory. He is the one, and his brother is also an attorney. And his brother’s the one who told him he didn’t have to register in Alabama but encouraged him to stop by the law enforcement just to make certain.

Andy 24:22
Just to make sure. Yep, that will never go wrong. So Larry, I went through, and I read all 81 pages and I read it multiple times. In 1986, Michael McGuire was convicted in Colorado of first-degree sexual assault of his girlfriend, second degree assault by “causing and attempting to cause bodily injury,” and three, menacing by placing another “in fear of imminent serious bodily injury” After he was released, he was a productive taxpayer as I recall.

Larry 24:52
He was indeed. Mr. McGuire spent much of the next 20 years, after getting out of prison in Colorado, working as a hairstylist and as a jazz musician in Washington, DC. You should be able to relate to that. And I find it somewhat ironic that the state of Alabama has rendered this productive member of society into a non-taxpayer by the harshness of the registration requirements, particular since the southern states claimed that they want people to work and pay taxes. Now, that’s funny.

Andy 25:24
I don’t think they want people to work to pay taxes. I think they just they want to some people to work and pay taxes, and they want some people to work and maybe be free labor. But that’s probably too far out there. You are being a little too logical about that, though. I think in 2010, “Mr. McGuire and his wife decided to move to Montgomery, Alabama, to live with and assist his elderly mother. But upon arriving in Montgomery, Mr. McGuire registered and then learned that he could not live with his mother because her home was too close to a childcare center.”

Larry 25:58
Now you have to admit that’s funny.

Andy 26:01
I’m not going to admit that’s funny, because that’s not funny. You have people who can look up what the word funny means and see if this actually applies to that. We have an English professor in chat, and he could tell us what the definition of funny is, and this does not qualify as funny.

Larry 26:13
Well, we don’t use dictionaries in New Mexico.

Andy 26:17
That doesn’t surprise me. That is so sad, Larry. The Court acknowledged that “Mr. McGuire looked for a compliant house. He was local law enforcement asked about the suitability of dozens of homes for rent but was told that ASORCNA–the Alabama sex offender registration and community Notification Act. So ACSORCNA prevented him from living at any of those addresses. From this point on we will refer to the Alabama law as “The Act.” “They stayed at a hotel until their money ran out.” Hotels are expensive–I can personally attest to that. “And then the couple briefly stayed with Mr. McGuire’s brother. But when his brother’s minor children returned from vacation, he had to move out because The Act prevented them from staying overnight with minors present. Unable to find housing, Mr. McGuire began living beneath an interstate overpass.” How can this be a thing in the United States of America, Larry?

Larry 27:13
It’s really sad for sure. And after having been a taxpayer, “Mr. McGuire began receiving social security disability benefit payments. And he’s continued to receive them.” He also receives a non-service-related benefit payment from the Veteran’s Administration. I didn’t put all of it in there. But it has to do with agoraphobia, and some psychiatric diagnosis which could easily flow from all the crap he’s gone through. And it’s really sad.

Andy 27:42
Remind me though. So he was a worker had been working for a decade or a couple of decades. Then because of a quote unquote, civil regulatory scheme, he can’t live with his mother, who he’s taking care of, and then ends up receiving money because he’s on disability, probably because he is unable to work anywhere. That’s the picture that I’m painting in my head.

Larry 28:06
That’s the correct picture. And like I say, the diagnosis was spelled out in the opinion, it was agoraphobia, and schizoid. Now, the schizophrenia part I don’t know enough about, but when you’re on the PFR registry, particularly in a place as bad as Alabama, and you’d have that kind of stress of being under a bridge, all sorts of psychiatric things could materialize because of the stress you’re under. When you’re living under a bridge, it’s not a lot of safety that you have living under most bridges.

Andy 28:42
Yup. Mr. McGuire was living under an overpass. Does Alabama require more frequent reporting for homeless PFRs?

Larry 28:50
Yes, during the time he was homeless, Mr. McGuire was required to report and register in person each week. The funny thing is that he was required to report in person a week to both the Montgomery County Sheriff’s Office and the Montgomery County Police Department. So they have dual reporting in Alabama.

Andy 29:09
Why does he have dual reporting?

Larry 29:13
That’s the Alabama law. Its first I’ve ever heard of it. But yeah, that’s the law.

Andy 29:17
Seriously. So then from my record–it’s your turn to go.

Larry 29:22
Well, I know you’re next. So you gotta be honest. So by your recollection is what?

Andy 29:28
That the case went to trial with no motion for summary judgment.

Larry 29:31
You know how much I love summary judgment, and it did go to trial. It went to trial and the district court, and this is a US District Court entered findings of fact and conclusions of law. “The court described the difficulties that Mr. McGuire faced in trying to find housing and work outside of the exclusion zones. It also addressed the effect of residence and employment restrictions and other restraints in Montgomery. The court found that these two restrictions made approximately 80 to 85% of Montgomery’s housing stock and jobs off limits.” And one would think that would be proof of the fact that the civil regulatory scheme is imposing significant disabilities or restraints.

Andy 30:17
But the court skirted that by finding that many “registrants were able to find housing and jobs in Montgomery nonetheless, and of the 430 registrants who lived or worked in the city, the court found only three were homeless.” I find that to be probably bullshit. “And approximately 50% of these registrants had jobs. Although this meant that roughly half of the Montgomery registrants lacked jobs.” The court ignored that but noted “that this number included some registrants who were not actively seeking employment.” So much for your disabilities in restraints argument. Can you admit that, Larry?

Larry 30:52
Yes, I can admit that it failed. This is an amazingly shocking case, from the trial court, the outcome of the trial court, and the court of appeals. This is amazingly shocking, when you have that many disabilities and restraints.

Andy 31:07
I just really struggle with that one being there how any of this passes any sort of muster as not being disabilities and restraints. But I also noticed that the trial court’s conclusions of law addressed the merits of Mr. McGuire’s ex post facto claims. For most of the challenged restrictions, the district court concluded that Mr. McGuire failed to carry his burden of demonstrating that the restrictions were so punitive in purpose or effect that the legislature’s non-punitive intent was overridden. I thought you said he won on a few of the issues in the District Court, though?

Larry 31:40
Well, he did. For example, the external reporting provisions which requires reporting to the both the city and to the county, the trial judge found that that was unconstitutional, and also its travel permit requirements, which mandate that registrants living in cities obtain permission and permission not just notified them but permission from both municipal and county law enforcement before traveling outside the area. The District Court declared the retroactive application of those two provisions unenforceable under the Ex Post Facto Clause, so he did win. But wait till you hear what happens as we go through this.

Andy 32:25
“Both Mr. McGuire and the Attorney General appealed parts of the district court’s judgment. While this appeal was pending, the Alabama legislature amended The Act.” Hey, that’s a shocker. “It removed the travel permit requirement and clarify that registrants simply need to notify Leo law enforcement before traveling. It also modified the dual reporting requirements. Registrants who lived in cities no longer needed to report to both city and county law enforcement officers if they were homeless or plan to travel.” I read this to be that the Alabama legislature at least concluded it had some problems with the registration because they made those changes.

Larry 32:59
Well, they did. They made those token changes, but not nearly enough, in my opinion.

Andy 33:04
So didn’t Alabama have in big red letters criminal sex offender on their driver’s licenses and ID cards?

Larry 33:11
They did. Gee, you have a great memory?

Andy 33:15
Well, there’s only a handful of states that have it. Like three or four that have the markings of some sort.

Larry 33:19
So yes, at the time that the district court ruled, the Alabama law enforcement agency (ALEA) implemented this requirement. “But in a different lawsuit, a group of PFRs challenged a legal requirement under the First Amendment. The district court in that case declared that the identification requirement as implemented by ALEA was unconstitutional. And that was Doe vs. Marshall. We’ve talked about that 367 Federal Supplement back in 2019. After that ruling, ALEA changed the designation it used on licenses and identification cards by replacing the words with a code.

Andy 33:58
So even with those changes, though, Alabama law includes “in-person quarterly registration, direct notification to the public when a registrant lives nearby, prohibits registrants from living, working, or volunteering within 2000 feet of schools or childcare centers, requires homeless registrants to report to law enforcement once a week, and mandates that registrants notify law enforcement before traveling.” Sure, sounds to me like there are plenty of disabilities and restraints here, Larry.

Larry 34:28
Oh, it sounds that way to me too, particularly the cumulative impact of all these restrictions, disabilities and restraints. This is just mind boggling to me.

Andy 34:39
The travel restrictions are considerable. The Act requires registrants to notify law enforcement when traveling before leaving his or her county of residence for three or more consecutive days. So you could just hop across the street essentially and that could be a county delineation. And if you’re gonna go hang out with your mom or something for a couple of days over a long weekend, you got to let them know because you want to cross the street. Correct, Larry?

Larry 35:01
Correct.

Andy 35:04
Correct. The person must disclose his travel dates, intended destination, and temporary lodging information. Good grief. For domestic travel a registrant must complete the document within three business days of beginning a trip. For international travel, they must generally complete the Travel Form 21 days prior to travel. Do you people want to explain the penalty for non-compliance?

Larry 35:26
Sure. A registrant who knowingly violates the travel notification requirement faces up to 10 years imprisonment. And that’s in the Alabama statute 13a.5.6, subsection A3. So if you are in Alabama, I encourage you to do these things unless you enjoy analyzing the inside of a prison cell.

Andy 35:49
Since the legislature amended some sections of the act, did they moot any of McGuire’s claims?

Larry 35:56
Yes, they mooted some. And the case of Doe versus Marshall booted the driver’s license issue.

Andy 36:04
What issues remain in the 11th circuit, then?

Larry 36:06
The residency and employment restrictions–those remain. The homeless registration requirements, travel notification requirement, community notification requirements remain in effect. So those were before the circuit.

Andy 36:24
Now, Larry, if somebody has to report weekly and they’re homeless, I mean, what else are they going to do? This is almost like good for them that they then have something to do at least weekly. Right?

Larry 36:35
Well, if you look at it that way, but what about public transportation? If you’re homeless, you generally lack transportation in most instances.

Andy 36:43
And if you do, then also there’s the funds to take it.

Larry 36:45
And I would guess, not being a resident of Alabama, I’d be surprised if there’s any meaningful public transportation. My guess would be you might have some in Montgomery, maybe in Birmingham, maybe in Mobile. But after that, I suspect it’s going to be spotty at best. So if you live in the countryside–Alabama is a pretty good-sized state–I don’t know how you would get there.

Andy 37:09
Well, if you have weeks in between, you can spend three days walking in each direction.

Larry 37:14
That’s a great idea.

Andy 37:17
How does the court determine if the Ex Post Facto Clause is being violated by the act?

Larry 37:23
Why did you ask that? To show because to show entitlement for relief under the Ex Post Facto Clause, Mr. McGuire must establish that the challenged provisions in the Act are criminal in nature. To determine whether the laws are criminal in nature, the court applied a two-part intent effects test from Smith versus Doe. That’s the famous case from US Supreme Court in 2003. And in the first step of the inquiry, the court asked whether the legislature intended to impose punishment. If they can make that conclusion that the legislature intended to impose punishment, the inquiry ends, and the statutory scheme is declared punitive. But that’s not generally what they find. They find they take the preamble that this is intended to be non-punitive. And they run with that. If the intent of the legislature was to create a civil non-punitive regulatory scheme, the court proceeds to the second step and asks whether the statutory scheme is so punitive either on purpose or effect as to negate the legislature’s intent to deem it civil. In other words, that preamble that can be overridden theoretically, by evidence. It didn’t seem to work in this case, but theoretically it can.

Andy 38:34
The court also noted that the Supreme Court has cautioned because we ordinarily defer to the legislature’s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. This means that the burden of proof is on the challenging party. In this case, Mr. McGuire, is that right?

Larry 38:57
That is correct. I’ve told you enough that you don’t really need to hear. You’ve mastered that this is correct. You don’t need me here. You are correct–he’s got to carry the burden of proof.

Andy 39:10
First, they needed to determine whether the legislature intended to impose a civil or criminal scheme. That should be easy because the Alabama act is in the criminal section of the statutes that should have ended the inquiry. Can you confirm that?

Larry 39:25
No, I can’t. The Supreme Court has already rejected that argument in Smith versus Doe nearly 20 years ago. In that case, the registrants argued that the codification of the Alaska registration provisions in the state’s Criminal Procedure Code showed a legislative intent to punish. The Court acknowledged that the placement of the provisions in the Criminal Procedure Code could be probative of the legislature’s intent in Smith versus Doe. But it found the placement not dispositive because the location and labels have a statutory vision and do not by themselves transform a civil remedy into a criminal one. That’s what the US Supreme Court said.

Andy 40:07
And now we can move to the Kennedy versus Mendoza-Martinez factors or the intended effects test.

Larry 40:15
Correct. I’m ready, I think.

Andy 40:19
Okay, here we go. The court stated on page 30. “To determine whether a regulatory scheme is so punitive and purpose or effect when applied retroactively. We consider several factors that the Supreme Court originally adopted in Kennedy Mendoza, Martinez, 372 U.S. 144, 168 to 69 from 1963.” I got that part right. The court “later applied in the ex post facto context of Smith versus Doe. Mendoza Martinez directed us to consider whether in its necessary operation, the regulatory scheme has been regarded in our history and traditions as a punishment. Number two imposes an affirmative disability or restraint. Number three promotes the traditional aims of punishment. Number four has a rational connection to a non-punitive purpose, or number five is excessive with respect to the purpose.” McGuire should have won on all five. Everyone in Alabama should win on all five, it seems.

Larry 41:19
Unfortunately, he did not. But I do agree with you.

Andy 41:23
And then I’ve heard you speak about a facial challenge versus an as an applied challenge. Can you explain the difference, sir?

Larry 41:33
Sure. I can just read excerpts from the opinion of the court in this case says “in an as-applied challenge, a plaintiff seeks to vindicate only her own constitutional rights. In evaluating an as-applied challenge, a court addresses whether a statute is unconstitutional the facts of a particular case, or its application to a particular party. By contrast, in a facial challenge, a plaintiff seeks to invalidate the entire statute and vindicate not only him or herself, right, but those of others who may be adversely impacted by the statute.”

Andy 42:13
Every PFR would feel that if it’s unconstitutional as applied to one, it’s unconstitutional to all. Doesn’t that make sense? Do you agree with that?

Larry 42:24
No, I don’t. The logic is actually fine. But the law doesn’t see it that way. According to the 11th circuit, a plaintiff who brings a facial challenge bears the burden of proving that the law could never be applied in a constitutional manner. To prevail, a plaintiff must establish that no set of circumstances exist under which the statute couldn’t be valid. And that’s what I need people to listen to very carefully. When people say, why don’t you just bring down the whole G-D thing? You can’t. Because there is a situation where registries could be constitutional. A facial challenge says you can’t do this under any set of circumstances. But you absolutely can register people under many circumstances. And we do it all the time. But registering people under the PFR statute, particular in Alabama and most of the South is very problematic, because they’re not just registering people, they’re basically putting out a lifetime supervision. So a facial challenge, you could not have a court declared that you could never register people. That’s what a facial challenge would mean if you were to win a professional challenge. It would be like the closing the libraries to PFRs. We had that case here in Albuquerque, and our case went up to the 10th circuit. They tried to basically close Albuquerque public libraries to PFRs. And you just can’t do that. You could regulate them. Can you restrict them to sections on ours? Yes. But just have a total ban? No. Because there’s the constitutional problem there that you have rights to receive information. So that’s a facial challenge there. And on its face, you just can’t have that prohibition that broad, but you could have a more modest prohibition.

Andy 44:13
Is it oversimplifying it to say that even just like reading the title of the challenge is enough to go–Oh, no, you can’t do that. Is that an oversimplification of a facial challenge? That it’s unconstitutional on its face?

Larry 44:28
I mean, it has to be something that there’d be no circumstances under which you could do that. There’d be no circumstances where you could just bar people from the library altogether. And so therefore, a facial challenge. I don’t know If I’m making it clear enough. When you’re asserting a facial challenge, you’re saying, look, court, there’s no circumstances where you could ever do any of this. And that is just not the case. There are circumstances where you could register people quite easily and constitutionally.

Andy 45:03
And using your library example, I’m thinking, if there were like “reading with children time,” it’s not unreasonable to think that people that have been convicted of crimes against children can’t go to the library when they’re having 50 kids gathering in there to have some sort of reading session. That doesn’t seem an unreasonable thing. But if it’s just like, general time, that you can’t not let them go to the library.

Larry 45:25
That is correct. A total ban. And it’s like the people who say I’m not allowed on internet, that’s facially unconstitutional. But a heavily restricted monitoring of your internet activity is quite constitutional. The more facts-specific they can be related to your facts of your case and your individual characteristics, the more disabilities they can impose on your net, but not a total ban. That would be an extreme remedy. And you should be able to buy set maybe in the 11th circuit, but you should be able to go in and undo that by saying, hey, this is facially unconstitutional. They cannot allow they cannot disallow me from ever being online.

Andy 46:06
We should probably start closing out the segment because we’re at about 40 something minutes and the court said at last “we apply the intent effects test to determine whether the act is civil or punitive, because we conclude that Alabama legislature intended to enact a civil legislative scheme, we must assess whether Mr. McGuire has shown by the clearest proof that the acts challenged provisions are so punitive and purpose or effect as to override the Alabama’s legislatures and stated intent to enact a civil regulatory scheme. We hold that he has failed to meet that heavy burden.” How can this be he showed so many disabilities and restraints? I can’t wait to hear you figure out how to rationalize this and make excuses for them in this outcome?

Larry 46:51
Oh, well, I’m not going to do that in this time. I’m devastated at a loss for words to explain that if the Alabama act does not impose punishment with all these disabilities, then no registration scheme across the country does.

Andy 47:06
All right. What are his options now, Mr. McGuire?

Larry 47:09
Mr. McGuire’s options. He can ask the three-judge panel to reconsider. But since they were unanimous that’s not going to work. He could seek on-block review, which means that every judge on the 11th circuit would hear the case. That’s also a longshot, because they don’t want to do that. Because then everybody would like a second bite at the apple. So the final option is to file a petition for cert with the US Supreme Court. And I think the Supreme Court just might grant cert, since there is now a circuit split. You remember the Sixth Circuit found Michigan’s registration scheme to be too punitive. And 11th has now held that a registration scheme more punitive than Michigan’s is not. So we’ve got a circuit split.

Andy 47:53
Interesting. And it’s probably not a guarantee that the Supreme Court would hear it, but certainly you have conflict there. So they’re more than likely to hear it.

Larry 48:02
That is correct. And I would say that I’m scared, but he might for well file a cert petition. I think the odds are very good that he will.

Andy 48:13
And does NARSOL then pile on top of that one?

Larry 48:16
If the team decides they’re going to file for cert, we absolutely, as long as I’m involved in a legal decision-making process, we will jump on this one at the very beginning. And try to encourage them to take the case, although I’m fearful, the downside of this is if they take this case, they grant cert, and they review it with a whole different court. Now we’ve got a different court than we had when they looked at the Michigan case. Folks, you got to remember, three new justices were put on during the Trump presidency. If they were to find that this is still a civil regulatory scheme, we would set back the cause of reform for many, many years, if not decades. It would encourage other states to toughen their registry schemes because if they were to affirm what Alabama is doing, why would a state feel restrained at that point?

Andy 49:12
Right. I understand. All right. Anything before we then go on to the your-people place?

Larry 49:20
Think not because we are going to run short on time.

Andy 49:24
Yep. You people wanted to rant about a case from a New Mexico. The name is the state of New Mexico vs. Ryan Thompson. And I’ve read it again. I read this thing twice. It does have to do with PFRs. And so we can go over it and make you people happy as I read the decision. It’s a textualist dream. Let’s set it up a bit. In every felony case in which a sentence of imprisonment is imposed, the defendant is required to serve a period of parole after that sentence. The mandatory period of parole for most is either one or two years. Unfortunately, they have a different period of time for PFRs. So can you explain that is equal but different? How’s that thing go with Brown versus Board of Education?

Larry 50:06
That’s correct. Those convicted of sexual offenses face an indeterminate period of supervised parole. The requirements are from five to 20 years for certain offenses and from five to life for the more serious TFR offenses. And that’s in the New Mexico statutes annotated 31-21-10.1

Andy 50:28
Thanks. Okay, what determines the length of parole since it’s indeterminant? Now, I remember we’ve talked about this a number of times of like, it might be this long, it might be that long. Who knows?

Larry 50:40
Well, the minimum period of supervision is five years. At the five-year mark, the PFR is entitled to have a review to determine whether the parole will terminate after five years or continue. This statute requires the parole board to hold a duration review hearing.

Andy 50:59
Who has the burden of proving that supervision should continue?

Larry 51:02
Under the law, the state has the burden of proving that the person should remain on parole.

Andy 51:09
I gotta think that, like if you come in here with like, the flimsiest of evidence and just say, yeah, he wore plaid on Tuesday. Oh, we should continue supervision. I gotta think that that would be the standard of evidence required to keep somebody on supervision.

Larry 51:24
You know, the funny thing is, you’re not far off. Let me tell you how funny you are. You’re cute. But I’ve seen through my work with attorneys who are fighting this that this has been a long-term issue since they passed this into 2007. But there have been people who have done splendidly well, no violations. And the parole board comes in and argues well, yes, he has done well, and has no violations. But we believe he can benefit from further supervision. Right, you have to admit that that’s funny.

Andy 52:06
It’s not funny, but there was a friend of mine in Augusta who went to have a good cause hearing in Georgia. And they said you are doing so well on parole and probation, whichever one it was, that we think you should stay on, because you’re doing so well. The issue in Thompson’s case is that the parole board refused to give him a hearing after he’d served more than five years. The statute is clear that PFRs are entitled to this hearing after serving the initial five years of supervised parole, and at two- and one-half year intervals thereafter. How in the world, Larry, did they justify not having the hearing?

Larry 52:44
Well, the parole board admitted a new requirement that’s not in the statute. Mr. Thompson had violated his parole, had been returned to prison, and then released again. They claimed that he must have five years in the community reporting to a parole officer. The only problem is that’s not what the statute says.

Andy 53:02
So Mr. Thompson brought this to the court by filing a petition for a writ of habeas corpus that is filed in the sentencing court. What did the lower court decide in his petition?

Larry 53:14
Oh, well, surprisingly, the district court agreed with Mr. Thompson. They ordered a duration hearing. But they denied his other requests that he just wanted outright release. And I recommended that you put that in there that since the state has not fulfilled its obligation to hold the review, to go ahead and make the assertion that you should be discharged because they’ve lost jurisdiction. Judge didn’t bite on that. But the state appealed the decision because they saw the potential of having to conduct hundreds of these duration review hearings.

Andy 53:45
That would be their burden, but whatever. Anyway, I’m still confused. What was Mr. Thompson litigating?

Larry 53:52
Well, he had served his prison sentence. Remember, you don’t get out early. You serve your prison sentence minus any meritorious good time. It can be 15% for some offenses, and it can be 50% for others. So you exhaust your sentence. And then you roll into that mandatory period. For most felonies, that’s going to be two years. For the most minor one, one year. For most PFR offenses, it’s indeterminate. So you roll into that period of parole. And his, unfortunately, his parole had been revoked, which meant that he was serving part of that indeterminate period in house because he was still in a parole period of indeterminate time of the five to 20. And the state contended the in-house time did not count toward the five years and the five years had to be consecutive with no violations, so they were asserting that they a right to restart the clock. So that’s what they were litigating.

Andy 54:50
Okay, how could they make such an assertion if the statute says they are entitled to the duration review hearing?

Larry 54:57
Well, the state was creative. They relied on the definition as set forth in the parole statute, which was passed decades ago, when we actually had meritorious parole that you would, that you would get released early. And parole as it was defined then means they’re released into the community of an inmate of an institution by decision of the board or by operation of law, subject to conditions imposed by the board as to its supervision. We didn’t fully word the statute the way it ought to have been worded when we got rid of meritorious parole. And we created this mandatory period of post-prison supervision that we still label parole, and therein lies the problem.

Andy 55:39
You keep using the word we. Did you help craft articulate this legislation?

Larry 55:45
I did not. When I say we the people are responsible for everything that happens in our states. Collectively we did this.

Andy 55:56
Okay, I’m thinking is this like we you people?

Larry 55:58
No.

Andy 56:02
What was the ultimate outcome for Mr. Thompson then?

Larry 56:04
What, did you skip two paragraphs?

Andy 56:11
I did. That’s very possible. So yes, New Mexico has the nuance of calling the period that follows one sentence, it says parole in reality, it’s really a mandatory period of supervised release, is it not?

Larry 56:23
That is exactly right. You are correct. And as the Court pointed out, under the literal statutory definition of parole, it’s unclear what exactly a parolee who is completed his or her basic sentence is doing in prison if not serving parole. So the court got that. If you’ve served your time, and you’re still in prison, you’re on parole, even though you’re in prison. They went on to explain that a parolee can be incarcerated during a parole period that follows the completion of the basic sentence for several reasons. One, because the lack of approved parole plan, which you have to submit, even though you’re technically entitled to release, you have to tell them where you’re gonna go. Or because the inmate refused to approve the conditions because they can put conditions on your supervision like the polygraph Kabuki machine. If you were to tell them to take that condition and shove it, they wouldn’t release you. Or as a consequence of a parole violation, you can be serving your parole in house, because if you’re not cooperating with this condition of parole, all those things could put you back into prison, but yet you’re still in your parole period.

Andy 57:31
So now what was the outcome for Mr. Thompson?

Larry 57:35
Well, the court held it is unmistakable that the legislature intended that the duration review hearing be conducted after a PFR has served his initial minimum five years of mandatory parole, and that’s on page 14. So there was no ambiguity in there.

Andy 57:52
Okay. But then the court said on page 15, “where text structure and history failed to establish that the government’s position is unambiguously correct. The rule of Lenity applies.” What is the rule of lenity?

Larry 58:08
It means that the tie goes to the accused. As the Court stated, “limit is reserved for these situations of which a reasonable doubt persists about a statute’s intended scope even after resort to the language and structure, legislative history and motivating policies of the statute.” So the court looked at all those things and they said, well, maybe the state has something here. But the rule of lenity applies. He’s entitled to a hearing. You can make all the arguments you want, but he’s entitled to hearing because the benefit of doubt and ambiguity goes in favor of the accused.

Andy 58:45
Okay, and in this case, the accused is Mr. Thompson. And so that decision goes to as Mr. Thompson because in this case it’s a tie? Okay. Then the court concluded by stating “we hold that the term initial five years of supervised parole in Section 31-21-10.1B includes all time served during the parole sentence, whether in prison as contemplated by section 31-21-10 D, a rehabilitative institution pursuant to section 31-21-11 or the community as set forth in section”–I’m done with this. This is a win, is it not?

Larry 59:27
It is a win for sure. But the statute still needs to be rewritten parole as existed. Parole, as it existed when the laws was enacted no longer exists. Therefore, we need to require that a person be released when he or she has completed serving their prison sentence regardless of whether they have adequate housing plan. Lack of an approved address does not mean that these people can continue to be held in prison. Our situation is nearly identical to what was occurring in Illinois before Adele Nicholas and Mark Weinberg took that case to federal court and won it. The federal court there ruled that that is blatantly unconstitutional. It’s just as unconstitutional here. We just haven’t been able to put all the pieces together and get a litigation team ready to do that. But I think we can win that here as well. We need to change the statute.

Andy 1:00:18
And let me try and play this out. So you, you’re being released on parole, and you have been afforded the parole date, but you don’t have adequate housing. And so instead of serving your parole, you’re still locked up. But then when they finally do let you go, they start counting the clock on that day, but they should have been counting it when you were afforded the date, because you have you have a technical problem of being released. That probably didn’t explain that very well,

Larry 1:00:50
There’s one little thing that’s not quite right. When they’re not assigning you a parole date, you are maxing out your sentence. Okay, yeah, contrary to like in many states, where you, you serve a certain portion of your eligible here, you do not get to serve a portion, you serve all of it, unless your good time. So you’ve maxed out your sentence. So it should be a kick out should be occurring.

Andy 1:01:15
But then whether you have a place to go or not, they should open the door and you walk your tooshie out.

Larry 1:01:19
That would be my position, because your freedom has been restored. That period of community supervision is intended to be in the community. But they put all these cables in there that they give the parole board the authority to handle your period of what should be supervised release, like the federal system. In the federal system, you’re going to kick out on that date. Because our system is almost identical. You’re going to leave when you’ve served all your time. But here and in Illinois, who knows where else they continue to hold you because they say what you haven’t given us a suitable address. Well, that’s not my problem. You could lock me up if I violate the law, but right now, I’ve kicked out I’ve discharged I’ve done all my time.

Andy 1:02:03
You signed a contract with the state to say that you were serving X number of years or days, however it worked out. And now they are in breach of that contract.

Larry 1:02:14
That would be that would be one of my arguments. Yes.

Andy 1:02:18
I gotcha. I gotcha. We’re done here on this one.

Larry 1:02:23
Yes, we are done with this one. And almost done with our time.

Andy 1:02:28
Yes, we are. I was just going to see if you said that you wanted to cover this ACLU article that we can just do very briefly. We’re at like 1:02 and change on time. And this is from the Crime Report, ACLU calls electronic monitoring a failed reform. Why did you want to cover this so quick?

Larry 1:02:44
Well, I’ve had felt ever since I started seeing how they’re using electronic monitoring, it’s merely an expansion of the reach of the judicial system, and the ACLU has come to the same conclusion. Rather than being an alternative to having so many people incarcerated, we are still although we are down slightly after the pandemic, in terms of our numbers, the number of totally people incarcerated has come down. But we are still incarcerating more people. But we’ve expanded the judicial system. So if you get arrested for a crime, now you’re going to be put on pretrial supervision with electronic monitoring, even though you’re presumed innocent. And for the slightest violation of supervision, you’re going to be put on electronic monitoring. I thought we were going to use this tool, according to the proponents, to help remove people from prison who, without that technology, would have not been safe enough to let out of prison. And now all we’ve done is just expanded the universe of people who are under correctional supervision, more people monitoring GPS for people it takes to monitor those people. And reply to the alarms and all the notifications. It’s a whole industry that sprung up. It didn’t do anything to reduce the people in prison that I can see. It’s not discernible.

Andy 1:04:03
I gotcha. Yeah, it doesn’t seem. It should be, hey, we took this one person out, we put him on an ankle monitor. Now we have one fewer person in the county jail. Oh, wait, no, we have a bed to fill. So let’s bring somebody else.

Larry 1:04:20
That seems to be the way it works. And I’m disappointed, and I’ve learned my lesson. We’re not really committed to reduce the prison population. The reduction of the ratio of incarcerated people effort gets met with all this–they’re turning loose a tidal wave of crime, lawlessness on America. We get this attack from the conservative side about how dangerous it is. But you know what? The rest of the nations around the world have figured out a way to keep their citizens safer. They have lower crime rates and lower rates of incarceration. So I don’t know how they do it, but we can’t seem to do that here.

Andy 1:04:57
I saw this in the news. Here’s just the title from the Washington Times “Biden to Pardon All Federal Convictions for Marijuana Possessions.” Did you hear about this idea?

Larry 1:05:06
I was going to put it on tonight. But there’ll be criticism that next thing, you know, he’s gonna be turning loose all the drug pushers, and you can just rest assured of that because we’re in an election cycle. And he’s going to be vilified for that.

Andy 1:05:22
Okay, I just wanted to make sure that it was put out there that, if I’m not mistaken, Jeff Sessions was like, we’re gonna prosecute to the maximum extent of the law. And then two presidents on the outsides of that were pardoning or hitting with kid gloves on those kinds of drug charges. Just saying.

Larry 1:05:42
Yep.

Andy 1:05:44
All right, well, then, we’ll close things out. We had no new patrons, but one of them did a massive leap in his Patreon niche. Thank you, Brian. So very much. It was incredibly generous that you did that. And then Deborah, we covered her question earlier, she did a five-fold increase. And again, thank you so very much to both of you, helping support the cause here at Registry Matters. And anything you want to say before I do the close out of location and stuff.

Larry 1:06:14
No, I will look forward to seeing you people next week.

Andy 1:06:19
You can find the show notes over at registrymatters.co or FYP education. Leave voicemail at 747-227-4477. Email registrymatterscast@gmail.com. Or go over to patreon.com/registry matters to support us, or fypeducation.org. You can support there as well. That is all we have on this Friday night. Larry. I appreciate you coming out on Friday night, and we had a pretty good crowd here in chat. Haven’t seen Bearhugs in forever. Thank you for coming out and everybody else and otherwise, I will talk to you soon. Enjoy your balloon festival man.

Larry 1:06:54
Thanks. Good night.

Announcer 1:06:56
Good night. You’ve been listening to F.Y.P.

Listen to RM240: Preliminary Injunction Denied in AWA Challenge
https://www.registrymatters.co/podcast/rm240-preliminary-injunction-denied-in-awa-challenge

https://fypeducation.org/wp-content/uploads/2022/12/RM-240-Print.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 F.Y.P. studios, east and west, transmitting across the internet, this is Episode 240 of Registry Matters. How are you people this evening?

Larry 00:30
Doing awesome. Glad to be with you.

Andy 00:33
And make sure you people like and subscribe to all the nifty places like the YouTube channel, and if you’ in a podcast app, if you can do it, make sure you give us a five-star review so the people can find this content, especially if you find it helpful. But if you don’t want to leave a five-star review, don’t leave anything. There. I said so.

Larry 00:54
What are the different star levels? I’m assuming they start at one, right?

Andy 00:59
Sure. So, don’t leave anything less than five. That way we completely skew the results and only on the positive side so that we only have five-star reviews.

Larry 01:09
All right. Well, go for it.
Andy 01:14
Tell us, with the vast listening audience, what are we going to do tonight?

Larry 01:19
We’re going to talk about hurricane evacuations out of Florida. You’re going to hit me up with some great questions that come out of thin air, no script at all for that.

Andy 01:45
We have to imagine them as we go.

Larry 01:50
We have some articles that I doubt we’re gonna get to. And we’re going to talk about a challenge brought by the Alliance for Constitutional Sexual Offense Laws, hereinafter referred to as ACSOL. And then I want to finally get back to a patron who asked about whether Iowa can force him to register longer because of his non-Iowa conviction. I’d like to do that fairly early on since he’s been waiting so long. And it’s not just this person. It applies to anybody who is in a similar situation. He’s going to consider getting out of Wisconsin to get to Iowa. And we’re going to talk about how well that’s going to work.

Andy 02:16
Very good then. So then let us begin with some questions from Iowa. Tell me remind me what’s going on with this. You said it’s been a while, right?

Larry 02:27
It’s been quite some time, feel embarrassed. It’s been so long. But you know, FYP just has so many submissions and requests to talk about things. And we only have one podcast a week. So sometimes things wait for a while. But a patron in Wisconsin wants to move to Iowa because of his GPS monitoring there in Wisconsin. And he wants to be able to petition for removal or be removed. I’m not clear if it’s a petition or just automatic, but he wants to be removed after 10 years. And he wanted us to give him some information on those two things.

Andy 03:01
If he’s on GPS monitoring, I assume that he is in some sort of tier level that he can’t just move. He is on supervision of some kind, right? Do you think he can achieve these objectives?

Larry 03:16
Well, actually, he’s not on supervision. Wisconsin has GPS for recidivist offenders. They do recidivist if you have two counts in the same case, and that’s how controversy is about. So yes, but can he achieve these objectives? He may be able to achieve one of the two objectives. He may be able to free himself of a GPS monitor. But I’m not sure that he can free himself from the registry because of some things that we’re going to cover. But yes, he may be able to get away with not having to be GPS-monitored if he leaves because it’s not standing out in the Iowa registration scheme anywhere that I can find.

Andy 03:59
Can you go into some detail about what you’re concerned about? Can you give us the skinny, Larry?

Larry 04:05
Well, sure. It’s in Iowa law in Section 692A.106, subsection eight. It states a PFR “who is required to register in another Jurisdiction under the other jurisdiction’s PFR registry but who resides, is employed, or attends school in this state shall be required to register for a period of time equal to the period of time required
under the other jurisdiction’s requirements or under Iowa law, whichever is longer.” That’s the thing that concerns me about him getting off after 10 years.

Andy 04:44
And so to be blunt, he might be screwed about getting off if he gets to Iowa.

Larry 04:50
He very well may be screwed, which I know is not funny. But when I go digging that’s what I came up with. This looks like the 2020-21 version. So unless it’s been changed, I’m afraid that reading directly from that section, he would be saddled with the time required in Wisconsin. So therefore, if he has a greater period, they’re going to try to apply that to him.

Andy 05:16
I mean, you said the 2021 version. There’s not a lot of time in there that could have been changed. I guess at the 2022 session at the beginning of the year when they would have been.

Larry 05:24
I have a feeling it has not been sure I’m not current all my subscriptions, because I’m no longer doing the amount of consulting work. So some of the stuff that I used to could readily obtain, I don’t have access to as easily. So I’m telling you, based on the most recent version that I have, it looks like he might be screwed.

Andy 05:44
And I was looking through the free version that you sent and 692A.108 says that the sheriff has the latitude to require one of our people, a PFR, to report more frequently than what is listed in the statute. That sounds like Butts County, Georgia, putting up signs. Can the sheriff make a PFR report more frequently than what the statute says?

Larry 06:09
Well, apparently, it’s in the statute. So they can do it until there’s some litigation. But that is certainly ripe for litigation, in my opinion, because it doesn’t give the sheriff any guidance in terms of how they would require that additional reporting. It says they’ll provide something in writing to the PFR. But I’m not sure that that would be a constitutional version.

Andy 06:43
I’m assuming that the statute says that they like you report 2-3-4, whatever those numbers are, the sheriff has to then follow those laws. He can’t go oh, sorry, it only says two, but for you it’s four.

Larry 06:57
Well, but they give them the provision under the law. These are the scary things that they are finding their way into statutory schemes. Like it says a sheriff may require a PFR to appear in person more frequently than provided.

Andy 07:10
Oh, okay, that may word versus shall. Okay

Larry 07:13
The PFR can appear to verify relevant information if good cause is shown. But then it doesn’t go into anything that explains good cause, but it says the circumstances under which more frequent appearances are required “shall be reasonable, documented by the sheriff and provided to the offender and the department in writing.” And I’m sure talking about the Iowa Department or their equivalent of the state agency that oversees the registry. But without precision and guidance, what would happen if the sheriff didn’t really like you? And they decided that they wanted to make your life miserable, like maybe help you lose a job. So what if you have to start reporting weekly?

Andy 07:53
Larry, can we take a quick detour about what sheriffs can do. Someone in chat says that in Candee County, Georgia, they require a photo every month for all levels. Well, I’ve never heard of that one.

Larry 08:08
Well, again, it’s similar to this. I don’t remember any such provision in Georgia statute saying that a sheriff can do that. But on the other hand, there is no provision in Georgia statute that says they can’t. And so therefore, you have to look at the section of Georgia registration and see if there is any guidance on photographing. The language should be something to the effect of the sheriff may request require a photograph if the appearance of the offender has changed significantly since the last photo was taken. That’s the type of language you would want it there. Because if it looks the same, when they got you in the office, they pull you up on the screen and they see the photo. And then you look like you. What’s the point?

Andy 08:55
I’m just wondering if this individual didn’t make them his focus. And so he was the object of their desires?

Larry 09:04
Probably not. It’s probably just what happens when these agencies how funding is they need to create work. I know that it’s complicated for folks in some circles of life to figure out, but when you create anything, whether it be in the private sector or in the public sector, very few of those employees are seeking ways to diminish their importance. They’re usually looking for ways to justify their existence and find something to do. So I suspect that they’ve probably funded detectives that have a small caseload, and they’re looking for stuff to do. That’s my suspicion.

Andy 09:39
Sure. Anything else on this?

Larry 09:42
No. I hope that our patron forgives us for taking weeks and weeks. But yeah, we looked at it, and it doesn’t look all that promising as I had hoped.

Andy 09:51
Do you think he’s going to forgive you for bad news?

Larry 09:55
Not normally people don’t.

Andy 09:58
Because I believe that when we move over to the next segment, apparently people like to just have fluffer cases. They just want to have action without a lot of success. And so do you want to move on now?

Larry 10:15
Yeah, unless you have anything else on this, but it doesn’t look like he can achieve both of his objectives. Possibly one of them. Being free of GPS is an important step.

Andy 10:26
So wouldn’t it just be better for him to stay?

Larry 10:29
Not in my opinion if he has the option to go to Iowa and be free of GPS. But there are other states that you could go to where he could probably get off the registry as well. So I would be looking for other options than Iowa. I don’t know that he would want to go to Iowa based on what I see here.

Andy 10:44
Yeah, I got you on that one. Okay, then, let’s go to talking about California. And we’re gonna roll back to something we talked about a few episodes ago. So on Episode 227, we discussed the challenge mounted by ACSOL, which is the Alliance for Constitutional Sexual Offense Laws through the Pacific Legal Foundation. And I remember I was like, kind of confused about what that was. And I do recall that you were not positive in the terms of the outlook on the case. What causes you to be so negative when people are out there trying to do good there? Why are you Mr. Negative Nathan? Negative Nathan, that’s who you are.

Larry 11:31
Oh, do you actually think I’m negative? I think one of the most positive individuals alive.

Andy 11:36
You are positive that things look shitty.

Larry 11:40
You missed your queue here. They’re supposed to be something after I said that.

Andy 11:43
Oh, see, I thought you were being impromptu, but I’ll play it. (Laugh track) Well, then, if you say so. Anyway, why did you put this case in here for tonight?

Larry 11:56
Because there was a recent development that our audience would probably want to know. I’m quite certain about this because I’ve received a couple of requests to talk about it.

Andy 12:04
And so what were the recent developments that you came up with?

Larry 12:14
Well, a federal judge that was assigned the case denied the request for the preliminary injunction and found that the challenger lacks standing to proceed.

Andy 12:28
So how can that be? I remember that you spewed some mumbo jumbo at the time about it being speculative. In fact, I will play exactly what you said at the time. Are you ready for me to call you to the carpet on what you said? You’re and what do you see as the downside to this case? I think I can see this one:

Larry 12:48
“Well, if Mr. Doe has not been ordered to register, this case is premature and speculative. They’ll say it should be dismissed.”

Andy 12:55
All right. That’s what you said at 44 minutes and change on episode 227.

Larry 13:01
Did I say that? I’m not sure that’s my voice.

Andy 13:04
Yeah, I did some, some masking tones. And so that’s actually that’s our transcriptionist person.

Larry 13:12
Well, I did say that. I don’t know what else to say other than it was my opinion at the time. And it seems like it’s the judge’s opinion. But I think you have something here to say about the judge, don’t you?

Andy 13:27
I do I do. I think that the audience should hold you responsible for this debacle. It is well-known fact that most, if not all federal judges listen to Registry Matters and base their rulings on what you say. So you are the reason that this case in trouble. Can you at least admit that?

Larry 13:44
Oh, I can indeed. I instruct federal judges almost daily in terms of how I want them to decide cases. So yes, I can admit that.

Andy 13:54
Alright, but let’s get back to some seriousness. And let’s get into the current situation. In this case, explain what happened. Tell me really quickly about an injunction and the level of surmountability that it does require. And so that was what was sought, and it was denied. And I’ve heard you pontificate for years about the difficulty of getting an injunction. Why are they so difficult?

Larry 14:17
Well, it’s difficult and it should be difficult. A person seeking an injunction is asking the court to grant relief and be awarded something prior to the resolution of the case on the merits. So in other words, he or she has not proven the allegations in the complaint. So that’s why it needs to be a tough standard because you’re asking for relief that you have not won.

Andy 14:40
And you’re also asking that it just be reviewed by a judge without any sort of jury, and you’re just asking the one person to almost make an executive kind of decision. Right?

Larry 14:54
Well, that is true, but that’s not the real issue. Because it could be a bench trial anyway. But in this, you’re getting relief that you haven’t won. The other side hasn’t had the chance to fully play their defense. I don’t know why people have all struggle with this. We presume that the burden is on the party that’s making the assertions. That’s where the burden rightfully rests. So therefore, the person who’s in the defensive posture–in this case, it’d be the state of California or the US government attorney general–whoever is going to be in the defensive posture, they haven’t had a chance to play their cards. Therefore, I see giving them an award of relief that you have not played out and given them a chance to defend against is an extraordinary remedy. Therefore, it has to be a tough standard.

Andy 15:41
But it seems like you kind of have no mercy. Let’s just refer to the court’s order, the judge stated that “a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, and that the balance of equities tip in his favor and that an injunction is in the public interest.” This is relying on Winter versus Natural Resources Defense Council. And that’s from 2008, with some numbers and stuff in there. So for those on the list, are they all equally important? That’s a good question. Are they equally important?

Larry 16:19
No, not in my opinion, they’re not equally important. To me, the two most important factors are the likelihood of success on the merits, and that there would be irreparable harm without the injunction. In other words, you have to show with existing case law that you would likely prevail, when the case ultimately goes to trial. This means that your facts are sufficiently similar to controlling case law that when you do get to have your day in court, it’s your win. And–and the and is important–that there would be irreparable harm. The harm cannot be speculative, which is precisely the situation we have here. They are speculating that he might be harmed if the day comes that he should be directed to register. But that’s too far disconnected from reality to be a credible threat of harm.

Andy 17:06
The defendants argue that Mr. Doe does not allege standing, because he has not shown that he is required to register under SORNA or the rule. Mr. Doe argued that he is subject to the rule, and that it exposes him to criminal penalties based on a decade’s old, expunged misdemeanor offense. It’s obvious to anyone with an open mind that he has standing. And why are you so dismissive of that?

Larry 17:35
Well, because there are no official, state or federal, that has even hinted that he must register. This is a figment of his wild imagination. He’s created a fear of an imaginary boogeyman, and he’s letting it adversely impact his life,

Andy 17:52
An imaginary boogeyman Are you implying that the Federal Penitentiary is an imaginary Boogeyman? I would not want to go to the Federal Penitentiary, Larry.

Larry 18:00
The federal prison is certainly not an imaginary Boogeyman. The imaginary boogeyman is that he is under no credible threat of being sent to the federal pen.

Andy 18:12
Okay, so why are you so adamant about this? The feds could prosecute him, could they not?

Larry 18:22
Well, even in your wildest imagination, Mr. Doe is no longer subject to registration. According to the complaint, in 1994, when he was 23 years old, and still serving the Marines, he engaged in an otherwise in consensual encounter with a 16-year-old. They didn’t sit it did not involve intercourse. In Mr. Doe’s mind, this is the AWA rule that was adopted in January requires him to register in California because its original conviction was expunged rather than set aside for factual innocence. The only problem is nobody has suggested much less directed him to register. It’s all in his head.

Andy 19:00
I really can’t let you off that easy though. I’ve read the complaint. Mr. Doe has real issues. He “wishes to engage in anonymous speech on the internet through the use of anonymous usernames via email addresses and social media.” He also “wishes to remain anonymous to preserve his privacy and to avoid adverse reputational risks related to his past offenses. He also wishes to speak anonymously about issues of public concern, including PFR registration requirements and his opinions on the rule. He contends that the rule requires him to disclose his usernames as part of the registration, which he could which could be accessed by the public.”

Larry 19:38
Yes, but see, the only problem is he’s not registered. And he’s not required to do any of those things that he just listed in the complaint. Again, he did state those things. He did say that in the complaint, but he has not spoken on these topics through his anonymous usernames because he’s not subject to the rule. This is despite, despite the fact that Mr. Doe currently cannot register. And even beyond the fact that he’s not required to, as I understand it, they won’t even register him if he tried. He says he’s concerned that California may force compliance with the rule at any time. The only problem is, they haven’t as of now, which makes this case, as I said, back on Episode 227, premature and speculative.

Andy 20:29
So if we go back to our favorite punching-bag person in North Carolina that called the office like three times, and then they eventually nailed him, he actually attempted to register and they say, “No.” And he’s repeatedly done this, and they say, “No, don’t register.”

Larry 20:47
People can’t take no for an answer I have no explanation for that.

Andy 20:52
Well, anyway, Larry, you always forget about the vast FYP trove of stuff you’ve said previously, because like, every episode has approximately 10,000 words, and we’ve done 240 of them. So there’s a lot of words that you’ve spoken out there. And if we go back to 227, a little bit later than the previous clip, this is what you said.

Larry 21:14
“The complaint gets the attention of the press, and they seek comment from the Attorney General of California. The reporter will ask the question as follows: Do you think it’s a good public policy for our state to have people who have committed serious sexual offences living anonymously in the community. And then there’s the likelihood that victim advocates will apply even more pressure to close the loophole that they perceive that permits people to go on with their normal lives while the victims live in constant fear of being attacked, again, by their former perpetrator. Political pressure could easily mount, and the California Assembly could find itself in impossible political position of telling the voters that the federal government has it all wrong on the PFR issue. Is that a sustainable political position?”

Andy 21:54
That is what you said. Do you remember saying that?

Larry 21:58
I vaguely remember saying that, and I stand by that to this very day. The risk of this litigation outweighs the rewards. If they actually were to gain attention, in California–I don’t know how much attention this has gotten, if any, in the press. But this is a case where you’re asking and inviting a lot of media attention. Because if a reporting news organization doesn’t understand that there is no federal registry, it could look like Mr. Doe, is escaping his federal duty to register, which he doesn’t have. But I did say that. And as I continue to be fearful this case, what happens when it gains traction in the media? Although right now, California does not require him to register. And people similarly situated as to what happens when they change the law, because of all the attention that this case gets.

Andy 23:04
Sounds like from Butts County, where the person was complaining like, “Hey, man, you don’t want to bring us under the heat under the spotlight of the legislators. They’re going to turn around and go change the law.” Same thing?

Larry 23:17
That is correct. That guy was in Clayton County, Georgia, you’re talking about, but yes, that is what I’m talking about. As a general rule, you shouldn’t litigate something that doesn’t need to be litigated. We don’t need this answer yet. Because no one has been ordered to register. There’s been a regulatory proclamation by the US Attorney General that seems to strongly suggest as an independent federal duty to register. That’s nice as attorney general opinion, but the Attorney General has taken no action on that yet. The Attorney General is hoping that the states will use that to modify either law or to try to figure out how to expand the compliance to get more states into substantial compliance. But no, nothing has changed. I don’t understand. I got into a discussion with the transcriptionist about this. And he said I was getting overly heated about it. But I don’t understand why people obsess over things that are not a problem yet. This does not need to be resolved yet until someone is directed to register.

Andy 24:23
So I going to go through this again. After we did pre-show and this talk, I think I’m beginning to understand. The court stated to satisfy Article Three’s standard requirements in the context of a pre-enforcement challenge. A plaintiff must show that they face a realistic danger to sustaining a direct injury as a result of the statutes operation and enforcement where the feared prosecution is too imaginary or to speculate. There is no standing does he have to wait for a knock the door and being led away in handcuffs like the cops and the like the the whole SWAT team think about showing up?

Larry 24:58
No, he does not have to do that. As the court stated, in evaluating the genuineness of a claim threat or prosecution courts look to whether the plaintiffs have articulated a concrete plan to avoid the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or forcement, under the challenged statute. So they haven’t done any of those things. A state or federal official has indicated nothing of the kind. And I don’t know why people can’t take no for an answer. There is nothing going on here yet, in particular, in the case of Mr. Mr. Doe, but they did name several other potential plaintiffs. And we’ll see what happens on that. But I don’t understand.

Andy 25:50
So tell me what happens next. So what happens next to this individual?

Larry 25:55
Well, the court found that Mr. Doe lacs standing. I’ll just read it. But “because the court finds that Mr. Doe lacks standing and declines to find that ACSOL establishes standing on the basis of other members, the court does not reach the merits of the Plaintiff’s request for a preliminary injunction. As the pleading may possibly be cured by an allegation of other facts, the court grants leave to amend.” So they can draft a brand-new complaint. And they will file an amended complaint. They may have some of the plaintiffs that were already mentioned in this complaint that they’ll bring forward. But my opinion has not changed. If none of these people are under the threat of prosecution, if the outcome is not going to change it’s still imaginary. It’s still speculative. It’s still premature.

Andy 26:49
Do you think that the amended complaint is going to be filed?

Larry 26:53
Oh, I have no doubt. There’s absolutely no way that these people who are behind this are going to let it go. They receive great accolades from their followers for doing stuff like this, whether it’s sound litigation or not. And I have no doubt that they’ll file another one. I can’t speak to their motives. Their motives may be pure as winter and snow. But I can’t speak to their judgment. And their judgment is not all that spectacular. But their motives I can’t address.

Andy 27:18
And tell me what happens with the amended complaint?

Larry 27:22l
It would be filed with new allegations. The defendants would get a chance to answer to give, follow the response. And they will file the same response that they filed previously with slight modifications. So they will make the same defense that’s already worked. And they’ll say the same thing all over again: this is premature, speculative, and all this kind of stuff. And we’re in a holding pattern on this. This is exactly like the International Megan’s Law when they were wanting to challenge the marker on the passport before the marker was ever identified, much less who was going to be required to have the marking? It was speculative and premature. As I said, at that time, you can probably dig that out of their archives if you’d like.

Andy 28:10
Maybe, maybe I’ll do that.

Larry 28:12
So actually, I don’t know if you can because that was passed in 2016. And I think we didn’t start the program to 2017.

Andy 28:19
I’ll find it from NARSOL In Action. It will sound like an am radio with tin cans or something.

Larry 28:25
You can find it with Barbara Gale because she was the attorney that used to be the head of the Georgia group. And I told her what the ruling was going to be when it came down that way. She said, “Did you write the rule anywhere?” And I said no. But again, it’s not hard to figure out when something’s not right. There has to be ripeness for an issue. You have to have standing. This guy is already off the registry in California. He can’t register even if he wants to because he’s gotten his expungement. They’ve released him. And beyond that he is a tier one. It looks like based on the pleadings, the court in this case considers he would be a tier one under the AWA. And the maximum amount of time has already expired because the Tier One is 15 years. And there can be five years removed if the person meets certain criteria of not being arrested, and on and on, that what we’ve gone over before. This guy has no standing. And they’re gonna have to come up with some people that have standing. And I don’t know how you do that, because they’re arguing about people who are off the registry. They have to argue about people who are on the registry. So the people who are off the registry, I don’t know how they’re going to manage to cure that defect of no one has told those people to register. It’s a figment of their imagination. I don’t know how you cure that. But we’ll see. I mean, they may come up with something really creative.

Andy 29:49
Hold on to that thought. I have a question for you, and then I have a question for someone in chat.

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Andy 30:44
Can you briefly describe the duration of registration? And tell us how the situation is in California?

Larry 30:53
Yeah, I could do that. You’re talking about the AWA tiers?

Andy 30:57
Yes. Section 20915.

Larry 31:01
Yes, the basic framework is it’s an offense-based registration system. So the federal government recommends that you look at your list of offenses, and you put them in certain tiers. And they give you guidance of how to do that. And they tell you if there are misdemeanors, they should be recommended as a tier one. And if they are felonies, they’re going to be at least a tier two. And if there are certain felonies, involving a minor under 13, with force, they need to be tier three. And within that framework, you register either 15, 25, or life. And it’s 15 for the tier one, and there’s a five-year reduction. So you can register for a little as little as 10 years. And it’s really straightforward. You have to have no sexual convictions of any kind and no felony convictions during those 10 years. And you have to complete an appropriate treatment program. And you’re entitled to that five-year reduction. So it’s a 15, 25, or life, and the frequency of the duration is governed around that. A tier one, you need to register at least once a year. A person in tier two needs to register at least twice in person and a tier three needs to register four times a year in person. That’s the basic framework of the Adam Walsh Act.

Andy 32:24
And it could be you committed your crime at the age of 18. And now your 80, but there’s no timeline of aging out of it, so to speak. They’re going to always look at that crime, no matter any of the other, like the Static 99. This is what I was trying to work my way around–they’re not going to look at how long has it been. I’m not talking about that five-year stuff. But I’m just saying it’s based on the crime alone and no other factors.

Larry 32:57
That is correct. It’s based it’s an offense-based, rather than a risk-based system. So therefore, but there is the passage of time in terms of your registration. Like he’s already had more time than required past. So therefore, the best-case scenario, he wouldn’t have to register because his tier one time has already expired. And the Feds allow you to give credit for all the time that’s expired, even if the person never registered. They’re trying to create a gap between the last offense that was the intention. But 20 or 25 years have passed, and you’re a tier two, and you never register a day. You’ve met the 25-year requirement.

Andy 33:36
Okay, I gotcha on that.

Larry 33:39
Now, it turns to be a little bit of a problem for the for the tier threes. And that’s why it’s so important that you get only to tier threes that are correctly there. And many states have put things into your tier that do not belong there. On a tier three, that’s lifetime. So if you’re breathing, and they find you, you’re still covered.

Andy 34:00
So we had a question in chat. And I think it’s a good question: I’ve always held the understanding that you had to show harm to even file a case. How did this complaint even turn into a case?

Larry 34:13
You don’t have to show harm to file a case. His complaint is about a regulatory scheme related to a statutory scheme of the Adam Walsh Act, and he feels like he’s within a zone of potential harm. But the problem he’s gonna continue to face is that the the harm is really not there yet. We’ve got to get closer to the harm. It’s got to actually come into play at some level. If the US Attorney General issues directive to all of the US Attorneys around the country that effective on July 1, 2023, we will begin to try to identify everybody who is off the registry and notify them that they must rejoin us. Then you’ve got the requisite that you need. Because everything he alleged in the complaint, not necessarily Mr. Doe, but some of those other people, they may be able to show that they’re within the zone of harm about the internet, the anonymity, and all the things that go with being registered. But we’re not there yet.

Andy 35:23
I see. So while we were talking about this, I had the idea that maybe we can rebrand something. Have you ever heard of Fermi’s Paradox?

Larry 35:40
It’s not ringing any bells.

Andy 35:42
Well, this guy is named Fermi, and he asks why haven’t we heard from aliens? And there’s two answers. The first answer is because there aren’t any aliens. The second one is they’re so far away, and because the speed of light and all the other things–we can’t talk to them. In effect, both are true. So Larry, these fears that you’re talking about, sort of kind of sound like Fermi’s Paradox, that they’re afraid of something that there’s no evidence for. But they still believe that there’s, like problems with these laws that are going to impact them. See what we did there?

Larry 36:18
If you say so. But my fear is you’re creating the very problem that you claim you’re afraid of. There’s a lot going on in California right now. They’ve got a governor who’s trying to lead the outlawing of gas-powered vehicles. They’ve got a state that’s having a mass exodus of population because people don’t like the high taxes. They’ve got so many problems to focus on. They’ve got the Diablo Canyon, their power plant, that they’re trying to figure out how to keep running because they’re not going to have enough electricity, particularly when the Hoover Dam can no longer generate power. Why do you want to bring this to the attention and caused the legislature to pivot to this and put them in a position where they have to change California law because you’re litigating a problem that doesn’t exist?

Andy 37:12
And that wasn’t a problem out there is insane. Oh, my God.

Larry 37:16
For the life of me, I can’t understand why you would want to do that.

Andy 37:23
All right. Is there anything else in this particular thing that you want to talk about, before we go on to my little ad hoc ask you question session?

Larry 37:32
Well, if there’s no other questions in chat, if we haven’t run off the remaining listeners, I’m sure we will before before the weeks out.

Andy 37:41
Nope, nothing else. Nothing else from the peanut gallery, I guess you could say. Do you know that there was a pretty big weather event that happened in the southeastern United States recently?

Larry 37:54
I’m not really familiar with it. Which one are you referring to?

Andy 37:58
I’m referring to the giant category, 7000-hurricane that rolled over Florida. It was like in the opposite direction of Andrew, a little bit north.

Larry 38:09
We haven’t had an experience with that here. So I don’t know anything about it.

Andy 38:14
You don’t have hurricanes?

Larry 38:16
No, we don’t actually. You

Andy 38:18
Probably almost have no weather where you are. It’s the same almost every day. Right?

Larry 38:23
That is correct. 300 days of sunshine. Yes, we do get the outer bands of hurricanes as they move up from from the Gulf sometimes and from the Pacific. But there’s no meaningful impact from hurricanes. We’re just too far inland.

Andy 38:40
Hey, do you know what–and this is just completely off the rails–do you know what the difference between a hurricane and typhoon is?

Larry 38:46
I do not. That one’s in the Pacific, right? And a hurricane is in the Atlantic.

Andy 38:51
No, it’s south of the equator. On the western side? I guess. Yeah, cuz I don’t think there’s any typhoons in the Atlantic. Even if they come from below the equator. I’m pretty sure that’s how it is. Something along those lines. So anyway, there was this big hurricane–did it mae it to Category Five? Or was it just category four? I think it was a category four.

Larry 39:09
It was category four, four miles an hour under what they needed to raise it to a five.

Andy 39:15
So it comes up about this time of year, and we can have this exact same conversation when it gets butt ugly cold of what do you do with PFRs if they need to get to shelters of some sort, or if they’re homeless and anything of that nature? Can you help me? This will be the first question. Help me understand why the the laws would be that they restrict PFRs from getting to an evacuation shelter?

Larry 39:45
That’s easy. Because they can, and it plays well with the public. It’s one of those imaginary boogeymen that we just talked about, where there’s some advocacy group has gone in and said, “Can you imagine this, those kinds of people are allowed to shelter with us.” And they changed the law. I can easily explain that.

Andy 40:11
There must not be any sense of humanity. I can understand that you don’t want them in your life. I mean, I can’t really, but at least, conceptually that you don’t want them in your neighborhood, and so forth. But I have a picture up on the screen for anybody that happens to be watching. Like these categories, even like a category one storm, or even a bad tropical depression will rake people over the coals. and they have no place to go. And they’re in the elements that there would be no way to survive, if they were actually in this. I saw a picture where someone posted the water level in the Tampa Bay area before the hurricane hit. And all the water is sucked out in the ocean getting pulled up into the clouds for it to dump on the area as the hurricane goes by. So do you have any experience with how people are treated getting to a shelter or anything like that? If they’re allowed to go to a shelter, how are things handled? Do you have any experience with that?

Larry 41:10
I don’t. I only have what people have said and comments afterwards. And I reached out to a couple of folks and didn’t have any luck. I guess they’re still in power shortages, power outages. I mean, they’re still in distress. But I’ve heard that they’re instructed, depending on what county they’re in, to report to various locations if they’re on the PFR list, including jail.

Andy 41:40
Do you see a problem with them just under the quote unquote, “civil regulatory scheme.” If my handler tells me that I have to go visit the local jail as my evacuation shelter, meanwhile, my neighbor gets to go to a normal one. I mean, I don’t know. Almost like, “Hey, I got my own room, instead of being in a big gymnasium with 700 of my closest friends.” Is there anything like a constitutional challenge there? Anything more than that is an ethics challenge. Is there any way that somebody could file a constitutional challenge?

Larry 42:12
Absolutely. There there is, in my opinion. But there are many barriers there. There are a number of things you could assert in such a challenge. The first thing you want to do is to scare them about the monetary thing. If they designated a PFR shelter, something tells me that they’re not going to designate the best shelter for the PFR. Would you agree with that?

Andy 42:35
I think so.

Larry 42:37
So therefore, it’s going to be a less quality shelter. And suppose a person has conditions that need to be cared for that cannot be cared for in whatever that substandard PEFR shelter is, then you run into potential liability for requiring them to go to this alternate shelter. This bleeds over into the issue of that since 1954, when the US Supreme Court ruled in Brown versus Board of Education that separate but equal is not equal. We would look at this. And this is certainly separate but not equal. It’s not defensible. I mean, that’s an almost 70 years old no 68-year-old precedent. Well, I shouldn’t talk about precedent because of this group we have up there now. But there’s a long-time precedent about separate but equal not being equal. So I think that a person does have a cause of action. But here’s the problem. When you follow that cause of action, who do you serve? Who’s your who’s your defending party? Because everybody’s going to point the finger at one another. So if it’s a Florida Statute, you would name the attorney general or the governor. The Attorney General or governor is gonna say, well, we don’t set up the shelters. That’s a FEMA thing. The Federal Emergency Management Agency is gonna say, “Well, these are FEMA regulations, that’s the first thing they’re gonna say.” That’s exactly what I would say. And I always try to be self-deprecating–if I can think of this, they can think of that. So what they would say is that, you know, we’ve got these obligations to get our federal FEMA money, that we have to do these things, and I don’t know what’s in the FEMA regulations, but they’re gonna say it if they can even come up with anything that remotely resembles federal regulations to point to. So then when you ask for leave to amend, and to name the FEMA Administrator, the FEMA Administrator is gonna say, well, it’s not us. It’s the local administration. We just provide the money, but shelters are administered locally. So you need the name, the local person as a defendant. And you’re going to have the circular game. And when you finally get the local person and the judge says, “I’ve heard enough game playing. We’re going to settle this. Who’s the local party?” Then you’re gonna get to the part where the local people are going to play the games. They’re gonna say, well, this is speculative, which is like what we said about California. But we don’t know what the county commission is gonna require next time around. So it may be a different facility altogether, I guess. So this is gonna be a tough one.

Andy 45:12
And we can reference back to the California thing about having standing. So it’s also seriously past the event that, you know, the hurricane came in, and you couldn’t go to a shelter and poof, now the hurricane goes by, oh, well, it already happened. So can you just suck it up and move on. That could happen.

Larry 45:35
That’s precisely what’s gonna happen. But they’re gonna say that, and you won’t be able to say, when the next one was gonna occur. But they need a degree of certainty. You can say that there will be storms in the Florida peninsula, but you don’t know when they’re coming and what part of the peninsula they’re going to hit.

Andy 45:51
My handler told me back in the day, because there was one that was gonna roll through the area and said that I would report to the shelter and identify myself and they would have my own special place. Like, I guess it would be the nearest broom closet or something like that, to keep me away from the people so that I don’t spontaneously offend.

Larry 46:09
Well, that would have been interesting, but you didn’t ever have to do that. But I’d like to have some real solid evidence of where they would have sent you, had that happened. Because then that would make good material for an actual lawsuit, depending on what they told you to do. If they put you in your own private space, and they fed you well, as well as did everyone else, and you had restroom facilities and you had good care, it wouldn’t matter. But what if they didn’t?

Andy 46:40
And the next thing–what’s the population of this area? 3ish or 4 million people once you encompass the entire breadth of where there may have been potential damage. It seems in my brain, from an administrative point of view, it’s easy to just corral everybody and deal with everyone is one big block, then like, oh, crap, we have to make this exception. You’re then pulling potential resources away to lock PFRs up in the local sheriff’s office, and your resources might be out and have the ability to go out and direct traffic and deal with people with like real emergencies instead of some babysitter duty. Does that make sense?

Larry 47:20
Well, it does. But again, we don’t know what they do with these people if they do report to the sheriff’s office. I have heard that shelters are locked once they reach a certain point. And I don’t know if this is factual, but I’ve heard that people are not allowed in or out. Our vast audience should correct us on this. But I would maintain that you should be able to leave if you so desire. I mean, if it went as long 114 miles and there’s debrief flying around everywhere, and there’s downed power lines, and you want to get electrocute yourself, I think in America, you have the right to do that.

Andy 47:59
Can you imagine then there’s gonna be some sort of lawsuit against them for letting the person out and they got electrocuted.

Larry 48:04
But that’s what they say. But you know that that would be liability, but they don’t let people leave after a certain point. I don’t know this stuff to be accurate. I’ve learned that when you hear stuff online, and you hear people chatting about stuff, if you don’t have firsthand information, you may be hearing incorrectly. But these are things I’ve heard. But what is really problematic to me is what about all these people that have committed crimes that could be harmful to people in the shelter. There are so many things that people go through if you have a gymnasium full of 300 people or whatever the capacity might be with your cots side by side. What all have those people done in the way of criminality? Is your personal property safe? Are you going to be physically attacked? How many of these people have done violent crimes? How many people have sold drugs to children? Aren’t we fighting an imaginary boogeyman here?

Andy 48:59
Sounds like it’s a solution in search of a problem. I think that’s the expression that we should use.

Larry 49:05
But there’s no doubt it’s a solution that starts to have a problem. But I’m sure when this was being debated the PFR was not there. Not that they could have stopped it if they had been there. I’m not saying that. But you certainly are not going to stop it if you’re not there. We can agree on that. Right?

Andy 49:23
Yep. Ok, here’s a question in chat? So what about the sheriffs who round up PFRs on Halloween and lock them up for the night? This is similar and you have your own problems with that issue. We can like noodle around that for just a minute because we’re in that season.

Larry 49:39
We are indeed we’re 30 days away. In terms of that, if the person is under supervision, that always changes what they’re allowed to do because your freedom is conditional. And being deprived of liberty for a few hours on a Halloween night is not significant enough that most courts are going to pay it any attention. But a person who is merely subject to the civil regulatory scheme of registration, if they are ordered to give up their personal freedom and be in custody, I think that we can look at what happened to Georgia sheriffs that made up the requirements. You just can’t deprive people of liberty, you just can’t. So I think that there’s a there’s a lawsuit with reasonable chances for success if anybody is being required to go place themselves in custody on Halloween, and they’re merely required to register with nothing else in the way of supervisory conditions.

Andy 50:39
How would somebody bring a challenge forward when they’re going to sue 10 people? I’ve seen challenges that we have talked about where they cite this person all the way up the chain to like the Secretary of State, practically, and every county administrator and bureau of prison official in the governor and they just run it all the way at the whole flagpole and sue everybody.

Larry 51:07
Well, that sounds good. But one problem is you got to get all these parties served. You got to prepare a summons of the complaint, and you have to serve the person and the entities. And then you have to get someone to accept the summmons and file the return of service. And then you create a whole bunch of extra work when you do that because those parties are going to answer by filing a response, saying why they shouldn’t have been named. And then you have to plead back to them or else they’re their motion saying, we’re not an appropriate defendant is going to be granted. And they’re going to be asked to be removed. So it sounds really wonderful. But if you’re a one-person law firm, you don’t want to do that.

Andy 51:42
Okay? And that’s what you were talking about–going around in circles and circles–you’re gonna say I’m suing this guy, this guy, this guy, and they’re gonna say, no, no, no, and then you’re gonna like a bathtub in the drain, just swirling around a circle for all of time.

Larry 51:55
That’s exactly what you’re gonna do. That’s what people don’t understand about litigation. It sounds good. Oh, we ought to do a big class action, but they have no idea what they’re talking about with a class action. You really want to try to zero in on the proper respondent when you’re filing these types of actions because you want to have your arguments ready. And you’re going to respond, yes, you are the correct defendant, here’s why. You don’t want to just throw up a bunch of people and hope it sticks. That’s irresponsible litigation, in my opinion.

Andy 52:25
I don’t think I have any other questions. And no one has offered anything in chat. Do you have any other final points that you want to talk about?

Larry 52:33
No, I think we’re coming up on our time.

Andy 52:37
We’re going on 52. I was going to ask if you wanted to hit any one or two of these articles, or do you just want to drop it?

Larry 52:45
Well, let’s see. What would my favorite article be?

Andy 52:49
I didn’t look at any of them. So we’re going to be doing this. What do you call it extra, extra, x-training? What do you call it?

Larry 52:56
You certainly don’t remember what I say.

Andy 52:59
That’s why I get recordings.

Larry 53:02
That’s why you have to play these clips later to remind me of what I said previously.

Andy 53:05
What is this word you keep using?

Larry 53:09
Extemporaneous?

Andy 53:13
What is this word?

Larry 53:17
That’s what you speak without script.

Andy 53:20
Why can’t you just say unscripted? All right, any of these articles?

Larry 53:30
Well, they’re all interesting. Why don’t we do all nine of them?

Andy 53:35
I don’t think we can. I don’t think we can do them all in like eight minutes.

Larry 53:42
Well, let’s just let’s just wrap it up. I do have an announcement. Next week, we will be recording for all of our loyal patrons Friday evening rather than Saturday evening. I will be attending a very special event. Anybody who’s ever been to Albuquerque or about Albuquerque

Andy 54:03
You’re getting married?

Larry 54:06
No, Margaret put that on hold. Remember last week?

Andy 54:09
Yes. So you’re attending the balloon event?

Larry 54:12
Yes. It’s called the Albuquerque International Balloon Fiesta. And this one is special. I’ve been here for a long time, and we have it every October, but what makes this one special is it’s the 50th anniversary of the Fiesta itself. They started in 72, and it’s the 50th Fiesta, but it’s the 100th anniversary of KKOB radio, who started the Balloon Fiesta in 1972. KKOB, which was known as KOB at that time, they were looking for something splashy for their 50th birthday, which happened in late March of ’72. So they had this birthday bash in April 72 at Cornell Shopping Center. They launched 13 balloons. And this is their 100th anniversary and the 50th anniversary of the Fiesta. And therefore, being that I am in the position that I’m in with my day job, we have VIP tickets to go to the balloon Museum and watch it from the elevated stand, rather than having to be down with the the pesants. And we have VIP parking. So I’m going to be out there at the Fiesta, watching the special balloons. There’s going to be an evening globe and special shapes and all this kind of stuff. And I should have a few photos. My camera might make some decent photos and we can get them.

Andy 55:43
I hope so. But you got you got something better than $100 Walmart job you used to have.

Larry 55:48
Nothing wrong with that phone. It worked.

Andy 55:51
It wouldn’t take good pictures. They would be all smudged and blurry.

Larry 55:55
You’re imagining things. But yes, we’ll probably record Friday evening. I’m guessing around the normal time, but maybe a little bit later because of my day job. But it’ll be by 8pm. And then we’ll be back to regular schedule. And then I think you have an announcement about what might be a scheduling conflict later in October.

Andy 56:15
Yeah, but at the end, we’ll figure that one out. Maybe I’ll record from a campground.

Larry 56:20
So Alrighty.

Andy 56:23
Well, everyone, if you want to find show notes, you can go over to registrymatters.co and fypeducation.org. You can leave voicemail at 747-227-4477. And email registrymatterscast@gmail.com. And of course, for those that were listening tonight, thank you for being a patron, and you can sign up at patreon.com/registrymatters. And we did do our little event chatting with Larry, I think that was Thursday night, we had a few people come out. And I think that was roughly about the right number. Maybe a couple more could have shown up. But it was enough to have a conversation and pay attention to people. And I think it went well. And I think we’ll do that towards the end of October. And we’ll have another one that was for $5 patrons and above. So please sign up. Oh, you know what, Larry, talk for a second. What were your thoughts on the event the other night? Because we got a couple new patrons.

Larry 57:15
Absolutely. I think it went well. When you start doing individual questions like we did, there has to be some give and take. And you have to allow a little bit of latitude for people to do a little bit of rambling, which I find is a problem. But all in all, I think it went really well. I hope I provided some help to a particular person in Tennessee that’s trying to run a strategy on a particular proposal. So I do the best I can. I can assure you none of that was scripted–that was actually live.

Andy 57:41
There was a lot of cuss words.

Larry 57:45
There was?

Andy 57:47
Yes. I love when you are unscripted, Larry, and you don’t think that you are being quote unquote, watched because your language gets more fluid and freer. So we did get two new patrons. And one of them was Dennis and the other one is just a bunch of initials. And so I’ll just call you JH. So thank you both for becoming patrons. And both of those showed up to the event on Thursday night. So thank you so very much for everyone joining that came along.

Larry 58:17
Awesome. And to our friends at the Joint Regional Correctional Facility, we’re going to be doing a special program in the coming weeks. I don’t know exactly the date, but we’re gonna be doing a special program, and we’re going to have a guest that some of you will know personally. We’ll be talking about the standard of proof and all the issues related to how unjust what’s happening to these guys. It’s really tragic.

Andy 58:45
Well, very good. Well, thank you so much, Larry, for everything that you do. There are several things in chat going on that you should be made aware of. And if nothing else, then I will talk to you next week. And before then, I’m sure to do prep and stuff like that. Thanks everyone for joining and listening to the program. Again, like subscribe, subscribe on the podcast apps, all that stuff and share with your friends.

Larry 59:07
Good night, everyone.

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