[00:00] Introduction: Welcome to Registry Matters, an independent production. Our opinions are our own. We’re thankful for the support of our patrons. You make what we do here possible. Your help keeps this podcast alive. And always remember, FYP.
[00:21] Andy: Recording live from FYP Studios East and West, transmitting across the internet, this is episode 375 of Registry Matters. What’s up, Larry? How are you this evening?
[00:32] Larry: awesome. Glad we could be back on the air again.
[00:36] Andy: Please head over to your favorite podcast app, or even your not-so-favorite podcast app. Even borrow your neighbor’s podcast app and put a review in there. Press like and subscribe on the YouTube channel. Load up multiple browsers—if you’ve got Firefox, Chrome, and Safari—press the like button and subscribe on all of them. That way we can ensure we rise to the top of the YouTube algorithm. What do you think about that plan?
[01:05] Larry: I think it’s a good plan. And I think we need to push people to get to that magic thousand. We’re so close, but yet we are not there yet. We get to 935 and all of a sudden two or three unsubscribe. I guess I say something that irritates them and it drops back down by two or three. Then a couple more will come.
[01:23] Andy: You say things that irritate people? Shocks me.
[01:27] Larry: Well, I can’t imagine what else would cause them to unsubscribe. Can you? Not at all. So what are we doing tonight? We have a decision from the Colorado Supreme Court. The issue in that case is whether or not the SVP’s designation is unconstitutional. Does it impose punishment? And if it does, does it impose cruel and unusual punishment under the Eighth Amendment? Also, we’re going to talk about some bad legislation pending in Michigan.
[02:00] Andy: I see. Well then, let’s start with that one first. There’s a bill banning PFRs from youth-related jobs spurring public safety debate. This is from Lansing, Michigan, and it was advanced by a House committee seeking to ban those listed on the state’s PFR registry from working at businesses that primarily serve minors. Michigan parents testified before the House Judiciary Committee saying the legislation is necessary to safeguard their children outside of school. Now, was our side there to respond?
[02:46] Larry: Yes, they were actually present this time. Criminal justice advocacy organizations opposing the package said the bills could negatively impact individuals registered for crimes not committed against children by implementing new barriers to finding work. Miriam Alkerman, an attorney from the ACLU of Michigan, said the bill is well-intentioned but flatly unconstitutional. Ms. Alkerman was definitely telegraphing that they intend to bring a lawsuit against the legislation should it pass.
[03:25] Andy: House committee. Bill 5425, for those keeping score at home, sponsored by Representative Matthew Beerling. What do you think that is?
[03:35] Larry: I think we’ve agreed last time we discussed this person, it’s Beerling, yes.
[03:40] Andy: Okay, cool. And that’s a Republican from Vassar County, would amend Michigan’s PFR registration law to prohibit registered individuals from being employed by a business that primarily provides services to individuals under the age of 18. That seems pretty vague to me.
[04:00] Larry: I agree with you, and that’s the feedback and chatter. The bill package lists examples like martial arts and dance studios, summer camps, tutoring companies, youth sports venues, bowling alleys, and escape rooms. And I remember we talked about escape rooms before because I didn’t know what one was.
[04:24] Larry: Yeah, but we didn’t have those back in the 1800s. No, no,
[04:28] Andy: no, certainly not. They were different back then. You tried to escape from them, but they were hard.
[04:35] Larry: But people on the PFR register who violate the bill would be guilty of a misdemeanor punishable by up to one year imprisonment or a $1,000 fine. But a second violation, the punishment increases to a four-year term and a $2,000 fine. This bill would also require the state to provide notice of employment restrictions to those on the registry.
[04:50] Andy: Now, Representative Beerling said he introduced the bill package after parents in his home state district raised serious concerns about a gap in our current law. He said, while PFRs cannot work in schools, they are not prohibited from working in or even operating businesses that primarily provide services to minors.
[05:11] Larry: Well, he’s correct about that, but I don’t know how long I’ve known about this representative last time, but I think he’s fairly new and he may not know the history. Michigan’s SORA, the Sixth Registration Act, does self-restrict employment for those registered through it, although those limits were imposed in the law at one time and included prior to previous lawsuits. Other Michigan laws, like the state’s school code, generally prohibit school districts and non-public schools from employing an individual if their criminal history check shows they’ve been convicted of a sex offense. Beerling said that policy reflects a clear understanding that children deserve a safe and protected environment. Now, that’s pretty good logic. Since we’ve already limited them from working in schools, we might as well just keep expanding on those restrictions. Can you at least admit that that makes logical sense?
[06:06] Andy: I suppose like this dance studio scenario where someone goes in and says, “I would like to be employed here,” and they do a background check and say, “You were convicted of doing naughty things in this regard. We prefer you not be employed here.” And that would just be the end of it. I don’t see why we need to make it more illegal for someone to be in this predicament. But
[06:32] Larry: What if the PFR creates the business themselves? Then we can’t have that. Entrepreneurship, we can’t have that.
[06:39] Andy: I thought we were in favor of entrepreneurship in this country. No, we’re not. I see. Well, Logan Christian, a parent from Beerling’s district who testified in support of the bills, said on the eve of his son’s first martial arts tournament, he was notified by another parent that his child’s mentor had been convicted of child sexual abuse. Like nearly every adult I have spoken to, my wife and I assumed from the very beginning that a person registered as a PFR could not possibly own or operate a children’s martial arts studio. Therefore, it would be safe for our son to attend.
[07:19] Larry: Oh, boy. When I tell you these bills are pushed, the lawmaker Beerling didn’t think this up himself. A constituent brought it to him, and he said, “Wow, fantastic. I’ll do this.” But anyway, there are other opinions presented to lawmakers. Jessica Zimbelman, who is a deputy director in the State Appellate Defender’s Office, spoke on behalf of the criminal defense attorneys of Michigan. She said the burden should be on employers to ensure that the people they hire are fit to work with children. And I think that’s a good point because you have legal liability potential. She also said, “I too am a parent telling the committee she would do anything to protect her children.” This bill doesn’t do that though. According to Zimbelman, the registry now has nearly 45,000 people in it. The bill would prohibit every single one of them, regardless of their risk of reoffending or what their offense actually was from working in these listed places or even volunteering to give back to the community. Now that’s a pretty broad brush if it eliminates every PFR. Remember, we talk about narrowly tailored Michigan legislators. Beerling, please listen to this. You can get away with this. It’ll be constitutional. It’ll be constitutional. You will narrowly tailor it. Do it.
[09:00] Andy: The article then states that three people on the PFR registry submitted written comments in opposition to the bill. One said, “Limiting employment impairs my chances of success. Work is my survival. Work is how I support my family. Work is my dignity. I am more than my worst decision.” Another said, “We are attempting to reintegrate back into society and become productive citizens. By restricting our opportunity, it not only hinders our adjustment to society again but greatly reduces the opportunity to prove our own worth.”
[09:34] Larry: Well, those are good comments. Now, if they were being rational, those comments would mean something, but they don’t mean much because we’re not being rational. Again, the appellate defender, Zimbelman, said she believes the bill package is unconstitutional. She pointed to Michigan legislation passed in 2006 that prohibited PFRs from living, working or loitering within a thousand feet of a school. But the federal courts and the Michigan Supreme Court have struck those zones down as unconstitutional. The thousand-foot zones were later removed from SOAR when the legislature amended it back in 2021. Burling apparently doesn’t know or doesn’t care about that.
[10:18] Andy: Miss Aukerman posted this question: “How can you know whether a business primarily provides services to minors? Is it a crime for a registrant to work as an after hours cleaner for a hairdresser if a prosecutor can prove that half of the people getting haircuts are under 18?” Can you see her point?
[10:38] Larry: I can. This would be a terrible thing to try to figure out. And I tell you what, the people under supervision would be told, you just can’t work anywhere if it’s even a close call, that’s what they would say. So I do get their point. During a first committee hearing in February, Representative Gina Johnson, a Republican from Portland, asked if there was an established definition for what “primarily” means in the bill. Sponsor Berline said there isn’t a lockdown definition but promised to look at clarifying it. But apparently he hasn’t been doing much clarification because that was back in February and now we’re in May.
[11:49] Andy: Right. Michigan’s a pretty large state. It’s not like a small state with 500,000 people where millions wouldn’t mean much, but it would be way less to a state like Michigan.
[12:01] Larry: It’s a rounding error to a state of that size. I would bet their budget is well over $100 billion.
[12:07] Andy: Holy crap. That’s a lot of zeros. Can I, I kind of have a problem that why would one of the PFRs go? Forget the guy owning the dance studio. That’s a whole different thing. I can’t figure out why the PFR would try to go get a job at a dance studio or something like gymnastics where you’ve got preteens and young teenagers running around. That just seems like a massive recipe for disaster. Well, I’m kind of confused by your question. It just seems like none of us would ever be like, that is where I’m going to go get a job. That is my job. That is my calling. That is where I should be. I just spent 10 years in prison for doing something to someone in that category. This seems like a bad idea.
[13:08] Larry: Well, maybe for the one who had done something in that category, but what about the person who didn’t do anything in this category? Their offense was something else. Fair point.
[13:08] Andy: Totally fair point. It’s just what I generally think of as a PFR.
[13:12] Larry: Well, that’s the problem with the population, the public in general. They think everybody on the registry has molested a child, and they have not. That is very true.
[13:25] Andy: You were pretty far off, Larry.
[13:28] Larry: So, yeah, $88 billion.
[13:31] Andy: You were off by 12 orders of magnitude. Well, you did say hundreds of billions.
[13:36] Larry: Yeah, and of course, I don’t know if that includes all the federal funds. Usually, the federal sharing of revenue with states puts the budget well above what the state collects in tax revenue. All the states, whether they’re conservative or liberal, have their hands out grabbing every federal dollar they can, while at the same time talking about how big and bloated the federal government is. And I can’t get a single conservative listener to be critical of that for some reason. I see you got me on a tangent about the budget because they say it’s big and bloated, and yet they do everything they can to make it bigger and more bloated.
[14:12] Andy: There is somebody here from Michigan who says, thank you so much for featuring this. Fortunately, we have a Michigan senator could probably kill it and not bring it up for a vote. But this is not certain yet.
[14:28] Larry: Well, please don’t reveal who that senator is because they haven’t revealed themselves yet. Revealing their name could be a career impediment or even a career breaker. If someone wins by overwhelming majorities or has no opponent, it’s different. But if they’re in a 51-49 district, revealing their name could destroy their career.
[14:51] Andy: Yeah, certainly. I do want to bring this up because we frequently talk about stopping something before it gets anywhere, especially when it’s stuck in committee. That way, no one has to go down in flames for being on the record against it.
[15:08] Larry: True. If a bill stalls in committee, the chairperson takes the blame because theoretically, the chair can call a bill up for a vote. In Michigan, with its year-round legislature, that doesn’t work the same way. But in part-time states, the best approach is to run out the clock. Let everyone vote yes, and just run out of time. You say, “We wish it had made it to the finish line. We got it through the committee process, and damn it, it was on the floor, but we ran out of time.”
[15:42] Andy: And Michigan’s one of those states that’s year-round too, huh?
[15:45] Larry: Yes, they’re year-round. At least when I lived there, they were, and I doubt that has changed. Interesting.
[15:50] Andy: Do you have any idea? Do you have any calculus behind that thing? Because Pennsylvania is one. I’m assuming California is too.
[15:57] Larry: Don’t have any idea. Just by their size. But Texas is not, and they’re much bigger than most other states. So I don’t know what the reasoning is.
[16:05] Andy: Why Texas isn’t because they don’t want any laws because Texas is special. So
[16:12] Larry: it’s probably just the complexity of government and them changing the law. We’ve had efforts underway to lengthen our sessions, but the public says no. You do enough damage in these short sessions. The public doesn’t really see the need. Just like we’re the only state that doesn’t provide any salary for the legislators, and the public says, well, that’s fine. They’re crooked enough as it is.
[16:34] Andy: Right. Absolutely.
[16:36] Announcer: Are you a first-time listener of Registry Matters? Well, then make us a part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app. Hit the subscribe button. And you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there, too. Subscribing also encourages others of you people to get on the bandwagon and become regular Registry Matters listeners. So what are you waiting for? Subscribe to Registry Matters right now. Help us keep fighting and continue to save F-Y-E.
[17:24] Andy: All right. Well, then let’s move along. We have this case from Timothy Paul Beagle versus the people of the state of Colorado. The state Supreme Court held that the sexually violent predator, SVP designation, under Section 18-3-414.5, and then CRS, what is it? Revised statutes?
[17:36] Larry: CRS stands for Colorado Revised Statutes.
[17:49] Larry: Revised statute, yes.
[17:50] Andy: Yes, I’ve learned something after eight years. Colorado revised statutes and its accompanying requirements do not constitute punishment under the Eighth Amendment of the United States Constitution. Do not constitute punishment? That does not sound like a win. It’s not a win. It’s a complete wipeout. You can’t help yourself, can you? You want to just open every program and give us the biggest doom and gloom possible, don’t you?
[18:21] Larry: Well, what do you mean, help myself from what? I’m just here to report all the facts.
[18:26] Andy: That’s all. Just the facts, ma’am. Just the facts. Can you say it all dry like that? What was his name? Joe Friday. Can you do that? Just the facts, ma’am. Just the facts. That’s right. Just the facts. That’s all I’m here for.
[18:59] Andy: Well, at sentencing, the district court designated Timothy Paul Beagle as a SVP, and then on direct appeal, Beagle argued that his SVP designation constituted cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. What did the appellate court hold?
[19:27] Larry: Well, a division of the Court of Appeals rejected this argument based on existing precedent in Allen v. People. I won’t give you the citation, but it’s available. And the Allen court held that an SVP designation is not punishment, and therefore, they chose to respect precedent. And they were in a predicament; the Supreme Court of Colorado can change their precedent. So they said, well, we already got our guidance here.
[19:53] Andy: Okay. And then I take it that Mr. Beagle didn’t agree with the Court of Appeals there?
[19:33] Larry: He did not agree. The state Supreme Court granted certiorari to consider two questions: whether the SVP designation constitutes criminal punishment under the Eighth Amendment, and if so, whether it is cruel and unusual as applied to Beagle.
[19:51] Andy: And was Mr. Beagle a good candidate to undertake such a challenge?
[20:03] Larry: Not exactly an ideal candidate. In July 2019, when he was 49 years old—just one year shy of 50—he picked up two 16-year-old girls who had run away from a treatment facility and allowed them to stay in his home for 10 days. During this time, Beagle provided the two girls with drugs and made sexual advances toward them; he sexually assaulted one of them. So I would say he was not the best candidate for such a challenge. He pleaded guilty to attempted sexual assault and distributing a controlled substance to a minor. His SOR score was 34.8, more than 12 points over the threshold to be classified as an SVP.
[21:32] Andy: And you said 12 points, not 1.2, but 12 over the threshold? Basically not on the borderline, huh?
[21:41] Larry: No, there was no borderline. He was 12 over. The district court found that Beagle met the SVP criteria and designated him as an SVP. The court also found that the SVP designation is not punishment. Now, that means he raised a challenge below, which is correct if you want a constitutional challenge; you’ve got to give the trial judge first. So he raised it below, and the trial judge said it’s not punishment, and instead, its stated purpose is to protect the community. The district court sentenced Beagle to a total of 15 years in custody for what he did to a young man. And you have to admit, the sentence was not excessively harsh, all things considered. I mean, with you preying on two teenage girls that were already in treatment, it’s a long sentence, but it’s not excessive.
[22:32] Andy: I think you’d get castrated and thrown into the Gulf of Mexico or something. Could you explain what the SVP designation means, specifically how it is classified?
[22:45] Larry: The SVP designation is a heightened classification of a PFR, which carries the additional requirement of lifetime registration under the Colorado PFR Registration Act and requires law enforcement to carry out additional community notification protocols.
[23:02] Andy: And what are the criteria to be designated as an SVP?
[23:09] Larry: It looks quite long and lengthy. To be designated as an SVP, an offender must meet one of these criteria: one, be 18 years of age or older when the offense is committed; two, be convicted of a numerated sex offense or an attempt, solicitation, or conspiracy of one of those offenses; three, have committed this offense against a victim who was a stranger to the offender or was a person with whom the offender established or promoted a relationship primarily for the purpose of sexual victimization. You can start to see how Mr. Beagle fit right into this, or four, be likely to commit another qualifying sex offense based on the results of the SVP evaluation.
[23:56] Andy: Got it.
[23:56] Larry: SV-assy. I’m going to call it SV-pacey. The results of the SV-pacey evaluation.
[24:04] Andy: I like mine better. Earlier, you mentioned that an evaluator from the Colorado SOMB had administered tests and concluded that Mr. Beagle was 12 points above the presumptive SVP designation. So, who’s on the board and how does it exist? It’s in Colorado…
[24:22] Larry: According to Colorado Revised Statutes 16-11.7-103, in the Code of Criminal Procedure, the Sex Offender Management Board (SOMB) was created and delegated to a consultative body for sex offenders. The SOMB is comprised of 25 experts dealing with adult and juvenile issues related to persons who commit sex offenses.
[24:49] Andy: Classification? Adult and what?
[24:56] Larry: Juvenile. I had a foster parent who pronounced it that way. She was very uneducated and would threaten us when we were doing something wrong, saying if you don’t stop doing that, you’re going to end up in the juvenile hall. You’re going to be in trouble with the juvenile court. So anyway, the SOMB includes mental health professionals, law enforcement officers, criminal defense attorneys, and judges, among others.
[25:23] Andy: So on paragraph nine, the opinion states, in cases concerning convicted adult PFRs, an SOMB trained evaluator administers the SVP-ASI, which is designed to identify offenders who are likely to commit another sexual assault. How do they make that determination? Well,
[25:46] Larry: According to the court, an evaluator can find that an offender is likely to re-offend in one of three ways: One, the offender has previously been convicted of at least one felony PFR-type offense; two, the offender scores above 22 on the sex offender risk scale, which is called the SRS; or three, the offender meets certain personality disorder criteria. You can see that Mr. Beagle fits into a couple of those categories.
[26:21] Andy: I did read that. Also, I’d like to read paragraph 10, and it says, “The SORS formula assesses the risk that PFRs will have a new sex or violent court filing within eight years of a conviction for a qualifying SVP offense.” SORS predicts that those who score above a 22 on the assessment fall into a risk group with a 50 to 60 percent likelihood of reoffending. This sounds very similar to a kabuki machine. How can they predict that? Wouldn’t you have to have some kind of sample that says these people scored this and within eight years they did the thing, and it would be self-fulfilling? I bet you they don’t have that data to support this.
[27:06] Larry: I bet they don’t. That’s why I think it’s you’re right; it sounds like a kabuki machine. They say that the SORS formula considers one, the number of adult criminal cases filed; two, the number of juvenile delinquency cases filed; three, the number of cases with revocation from probation or community corrections; and four, for the earliest sex offense filing age. But it’s actually the court that decides based on the evaluator’s completion of the SVPAisley [likely “SVPA”]. The district court uses the results as a primary aid to determine whether the offender qualifies for SVP designation under the criteria in section blah blah blah.
[27:46] Andy: What are the downsides? Like, what is the issue so to speak of being designated as an SVP?
[27:54] Larry: The Colorado Sex Offender Registration Act (SORA) features registration rules unique to those designated as SVPs. Once designated as an SVP, an offender is required to register every three months for the remainder of their natural life and may not petition for removal from these requirements. Because SVPs have been determined to pose a high enough level of risk to their communities, each local law enforcement agency must implement the Sex Offender Management Board’s (SOMB) community notification protocols for any SVP who lives in their jurisdiction.
[28:24] Andy: And we know how this is done in a place like Louisiana. How are they done in a reasonable place like Colorado? How are the notifications done?
[28:32] Larry: Currently, according to the court decision, these protocols require law enforcement to use either a town hall or a local law enforcement agency to register for removal from those requirements or alternative methods like social media to provide community members with relevant information about SVPs living in their community.
[28:47] Andy: Let’s move on to the legal aspects of the appeal. What is the standard of review for this kind of case?
[28:54] Larry: Well, that’s in paragraph 15. The court stated, “We review constitutional questions de novo. We also review questions of statutory interpretation de novo.”
[29:05] Andy: Would you remind us of the standard of review for this kind of case? What does “de novo” mean? Is it related to Devo, the rock band from the ’80s?
[29:12] Larry: No, it means when a lot of appellate cases are going up there’s deference required to what the trial judge said. For example, regarding the veracity of a witness, the trial judge gets to determine that as the trier of fact. But for these questions, no deference is required. It means exactly that: no deference is required to the trial court in its decision on these questions. So when it comes to constitutional issues and whether something is merely civil, they weren’t bound to even consider what the trial judge said about it. That’s what “de novo” means—they take a fresh look at it now.
[29:59] Andy: You’ve also said for years, and probably when you first said it to me my head kind of spun around a few times, that statutes when they are signed into law are presumed to be constitutional. Why is that? I have indeed said that, and how many times do you reckon I’ve said it? Quite a lot, probably almost as many times as you’ve said hello.
[30:22] Larry: That’s a long-standing legal doctrine that statutes are entitled to a presumption of constitutionality. The court acknowledged that and stated thus under our separation of powers doctrine we will not declare a statute unconstitutional without showing it is unconstitutional beyond a reasonable doubt. Now, you know that’s a pretty tough standard. Yep, and the reason is that lawmakers take an oath to protect and defend the constitution—that’s the same oath that the judge takes. Therefore, a co-equal branch of government doesn’t presume that lawmakers would put their hand on the Bible and lie about their intention not to enact an unconstitutional law. They presume you took your oath that you would not enact an unconstitutional law. Now, that’s wrong, and maybe that doctrine should change, but right now you have to work within the doctrine as it exists. We’ve told you on this program about lawmakers saying they’re pushing a bill even though they know it’s unconstitutional because they hope for a different court result.
[31:27] Andy: Heard that yes.
[31:28] Larry: Well, but this doctrine has been around for a very long time because it was presumed that people wouldn’t swear under an oath and then totally disregard it. So it was presumed that you’re doing the work in a constitutional fashion. So the burden is on the person who says it’s not unconstitutional to show me and show with a very high standard of precision that it’s unconstitutional. That means evidence, which means very few summary judgments. You’re not going to be able to show a lot of this stuff in a summary judgment.
[31:57] Andy: Beagle argued that the general assembly intended for the SVP designation to be punishment because it is partially housed in the criminal code and does not otherwise have a legislative declaration espousing a non-punitive purpose. Additionally, he argued that by placing SVP designation near the section defining habitual PFR sexual offenders against children, the legislature communicated a punitive intent akin to this criminal sentence enhancement. Moreover, he contended that the SVP designation is part of a criminal sentence indicating punitive intent because the SVPA evaluation is conducted as part of the pre-sentence investigation. Now you’ve got to admit that those arguments are compelling. I mean, like the location of the stuff in the statute, does that really matter that it’s located nearby, therefore it’s sort of related?
[32:58] Larry: Think that’s a compelling argument now. I think you meant when you said akin, you meant akin and that that’s uh up there above a-k-i-n so uh but i will admit that they are compelling and but the court did not find them particularly compelling um
[32:58] Larry: I think what you meant was “akin” rather than “kin.” But I will admit that those arguments are compelling. However, the court did not find them particularly compelling.
[33:16] Andy: Now we’ve also discussed the Supreme Court’s decision in Ellenberg. I recall that you were not too optimistic that it would change the status quo. Could you remind me, what was argued in this case?
[33:28] Larry: Yes, the court noted on page 20 that following oral arguments here before the Colorado Supreme Court, the U.S. Supreme Court announced Ellenberg and Beagle as supplemental authority deeming it relevant to his claim. The legislature intended for the SVP designation to be punishment, so it did not go unnoticed by the lawyers who submitted supplemental authority after oral arguments.
[33:59] Andy: Tell us what the issue was with Ellenberg. Can you remind us about that?
[34:04] Larry: In Ellenberg, the court analyzed the text and structure of the Mandatory Victims Restitution Act (MVRA) and found that Congress intended the statute to be punitive. The court identified several features of MVRA that made it clear when viewed as a whole that the act imposed punishment. These features include labeling restitution as a penalty, imposing restitution during sentencing, having the government—not the victim—be adverse to the defendant when restitution is ordered, allowing restitution for misdemeanors in lieu of other punishments like imprisonment, non-compliance resulting in court modification or imprisonment, and codifying MVRA in criminal code sections.
[35:49] Andy: Assuming that along with myself, everyone else’s eyes rolled back in their heads by the second point. Can you make this one or two sentences?
[35:59] Larry: Yes, in essence, Congress proclaims its intent for MVRA to be punishment, and it is indeed punitive. If we find a legislative enactment on registration that says “to punish these people, we’re requiring this,” then it will be considered punishment without further proof needed because the Kennedy Mendoza-Martinez test states that if Congress declares something specific as punishment, the inquiry ends there.
[36:36] Andy: Can you at least admit that there are some similarities?
[36:42] Larry: I could admit that, and the court did as well. They said the SVP designation scheme shares some of the features identified in Ellenburg. The SVP designation is imposed at sentencing, the people remain an adverse party, the designation is located in the criminal field, it involves revocation, and placement at a facility similar to those for adult offenders. However, the punishment argument failed because when viewed as a whole, the features of the SVP designation do not indicate punitive intent.
[37:42] Andy: In paragraph 28, the court stated, “We turn to the seven Mendoza-Martinez factors to consider whether the punitive effects of the SVP designation sufficiently outweigh the legislature’s non-punitive intent.” Do you feel like you could quickly explain those? Not like you did the other ones where our eyes rolled in the back of our heads. Can you do this quickly?
[38:03] Larry: Well, I’m just going to let the court do it. They say to analyze whether a measure is punitive in effect, courts have considered the seven factors articulated in Mendoza-Martinez, namely whether, one, it involves an affirmative disability or restraint. Two, has historically been regarded as punishment. Listing your name with the government has not historically been regarded as punishment; I don’t think it’s punishment. Three, comes into play on a finding of fact and not even legal professionals can explain that one, so I won’t bother. Four, whether it promotes the traditional aims of punishment, retribution, and deterrence. Five, applies to behavior that is already a crime. Six, has an alternative purpose to which it may be rationally connected. And finally, seven, appears excessive in relation to the alternative purpose assigned.
[39:01] Andy: Beagle compares his case to TB, which the Colorado Supreme Court held that CSORA’s lifetime registration and community notification requirements, as applied to juveniles, Larry, juveniles, got it, juveniles, were punishment under Mendoza-Martinez. If something is punitive to juveniles, is it not punitive to adults?
[39:27] Larry: No, it is not necessarily punitive to adults just because it’s punitive to juveniles. The court explained that. They stated, under the seventh Mendoza-Martinez factor, we deemed lifetime registration for juveniles excessive because, one, it brands juveniles as irredeemably depraved based on acts committed before reaching adulthood. Two, disregards juveniles’ tremendous capacity for reform. And three, applies for a greater percentage of a juvenile’s life by the very fact of the offender’s youth. Now, you’ve got to admit, there’s some logic in that. Perhaps.
[40:11] Andy: But it takes away that literally the day you turn 18, you are no longer redeemable, you are not just one day older than you were the day before. In addition, I noted that they also stated in Smith versus Doe, the Supreme Court held that the PFR notification requirements at issue did not constitute public shaming because they involved the dissemination of accurate information about a criminal record, most of which is already public. We emphasize that this rationale did not necessarily apply in the juvenile context. The dissemination of information about juvenile PFRs thus appears more punitive in light of the presumptive confidentiality of the PFR.
[41:02] Larry: That is a valid point because most states, with the exception of probably Alabama, have decided that they want their juvenile system to be more rehabilitative and less focused on punishment. They’ve taken this public policy position by shielding juvenile records and expunging them, all the things they do for juveniles that they don’t do for adults. So, they’re not comparing apples to apples; they’re comparing adult jurisprudence with juvenile jurisprudence, which are two completely different things. The court also noted that C. colostros automatic lifetime registration requirement for repeat offenders was retributive under the fourth Mendoza-Martinez factor because there was no individualized risk assessment. They went on to say that in contrast, here, the SVP designation applies only to adult offenders whose conviction information is already a matter of public record. Moreover, the designation only applies after the completion of an individualized risk assessment via the SVP PASI. Now, see, you guys who are so in favor of risk assessments, sometimes they bite you in the rear.
[42:16] Andy: I don’t think that’s what you said on our phone call earlier.
[42:18] Larry: What did I say?
[42:20] Andy: I believe that you used a term similar to the SVP ASI on our phone call earlier.
[42:48] Larry: They didn’t determine any disabilities or restraints. In Smith v. Doe, the court found Alaska’s lifetime PFO registration requirements do not constitute an affirmative disability or restraint because they do not resemble imprisonment; they are parolike, how do you pronounce that, parodynamic. He failed to show any disabilities directly imposed by CSERA. He referred to locally imposed restrictions that are not imposed by the state of Colorado.
[43:18] Andy: Do we have any distinction of what that was, what the state did versus what the statute did?
[43:24] Larry: Well, there are no restrictions as far as I know in Colorado on where you can live. Right. Local communities do impose some. So, don’t complain to the state; go to your city councilor and county commissioners.
[43:30] Andy: You need to go complain to your city councilor and your county commissioners. I see. All right. Well, then the court stated that the legislative text associated with the SVP designation clearly indicates non-punitive purposes for community protection. They cited CRS 16-22-112, which explains that CSERA aims to provide public access to information and that SVPs pose a high enough level of risk to the community, necessitating community notification. This is the only way the state can provide the public with information and education concerning supervision and treatment of sex offenders. Now, why can’t they admit the obvious—that it’s punishment?
[44:11] Larry: Well, they did admit it, sort of. They stated that although certain aspects of the SVP designation may resemble punishment, they do not, by the clearest of proof, outweigh the legislature’s non-punitive intent. Simply put, Beagle did not carry out the legislation. He did not carry the burden of proof.
[44:32] Andy: All right. Well, then what happens next?
[44:35] Larry: This case is dead for all practical purposes. He’s lost. A petition for the U.S. Supreme Court will not turn the ship around, in my view. And
[44:45] Andy: Then before we move on, I notice that two justices wrote separately. Do you mind if I read the first paragraph and then get your opinion on what was said?
[44:54] Larry: Sounds good
[44:55] Andy: to me. All right. Well, Chief Justice Marquez, joined by Justice Gabrielle, stated: “Although I join the majority’s opinion, I write separately to highlight concerns with the sexually violent predator designation raised by Colorado’s Sex Offender Management Board. They warrant the General Assembly’s attention. In the nearly 35 years since it first became part of Colorado law, scientific research has called into question the effectiveness of the SVP designation in reducing recidivism and protecting the public. The SOMB agrees and has repeatedly recommended that the SVP designation be removed from the general assembly and replaced with a system better aligned with modern research. Given these concerns, I respectfully urge the legislature to review the relevant research and consider whether the SVP designation continues to serve its intended purpose.” Now, I mean, that sounds pretty amazing right there. Do you think they will reconsider the intended purpose?
[45:56] Larry: I really don’t. I think it’s a long shot. But it’s possible. My opinion is the legislature will need more than a respectful request. There’s no incentive for them to make this change, particularly now since the court has upheld the designation as being constitutional. Why would they go out on a limb? Try to put yourself in a competitive legislative race. Why would you say, “If you give me a chance to represent you in Denver, I’m going to take this provision off the books”? Do you think anybody talks like that?
[46:43] Andy: In Colorado?
[46:45] Larry: I suspect they do in the eastern plains out there in the farming areas in Holly and places like that. I think they do.
[46:53] Andy: But so I guess from the judge’s point of view in them saying that, they ruled based on the constitution, like how the law works and is it unconstitutional based on their interpretation of all that. However, they then put in their personal opinion on whether they should go back and redo this based on the evidence and science and things of that nature.
[47:12] Larry: Yeah. I mean, you’re being logical and so are the judges, but logic is not how the political system works. It’s based entirely on political needs and reality.
[47:23] Andy: Hate when you tell me this too, by the way. I always hate when you tell me this. Well, I can’t help it. It’s our system. No, I get it. And I’ve come around again; my head spins every time. Like it should be based on evidence and logic and reason. However, it’s based on emotion. And I’ve been trying to figure out how to bring this into the podcast. You can’t use logic and reason that which you didn’t use logic and reason to get into. We got into all these laws based on emotion. We’re not going to be able to use logic and reason to get out of them.
[47:52] Larry: Well, if you can figure out how to make it unconstitutional for lawmakers to go out and campaign with vitriolic statements and dirty politics and put this to rest that nobody can say that this person proposed taking the SVP designation off the books after it being real constitutional. But you can’t do that. Anybody running for office in Colorado can say he did that, and he didn’t have to. The court had just upheld it.
[48:23] Andy: I understand, Larry.
[48:25] Larry: I do too.
[48:26] Andy: Understand. Anything else before we head out?
[48:30] Larry: Well, I think this was one of our best episodes. I said that last week, but I think this one’s even better.
[48:36] Andy: I think every episode is better than the previous one. Well, all right. We were possibly going to have a Colorado person on, but he decided to go gallivanting across the United States. So I’m calling you out, individual in Colorado. You let me down.
[48:57] Larry: There should be punishment. And I think he could have added some color commentary to stuff that we truly don’t understand that a person living there would.
[49:05] Andy: Absolutely. Totally. All right. Well then please head over to registrymatters.co for show notes and links everywhere you need to go. You can email me at registrymatterscast@gmail.com if you have something specific, like what somebody else did this week. I can’t remember the person’s name, but you know, just send it in. And of course, head over to patreon.com/registrymatters and become a patron for as little as a dollar a month. And I’m trying to remember who the patron was this week. I just sorted by join date and got stuff from 2021. No, that’s definitely not it. There was a person that joined recently and I want to say thank you very much. You know what? It was someone who changed their Patreon level and they made it more generous. That’s why the join date didn’t change.
[49:54] Larry: Yeah. And it was up to the stimulus payment amount
[49:57] Andy: Now, correct? That is very close to correct. Yes, it absolutely was. And without anything else, and also fypeducation.org slash shop, and you can even get a customized shirt. If you want something that’s slightly different than what’s available there, my guy can make it happen for you. And that’s what happened just last week. Someone wanted one of the items on the back of the shirt instead of on the front, and we made it happen.
[50:20] Larry: So there you go. I have a question. Has anyone taken my offer to wear the Kabuki shirt to their polygraph exam?
[50:29] Andy: I think I heard that people were thinking about it, but I don’t think anybody has yet. But so we should reiterate this. What will you do for them?
[50:37] Larry: Well, I’ll give them a gift card. Not a million dollars, but something reasonable.
[50:40] Andy: Like $5 at McDonald’s or what?
[50:43] Larry: No, a nice gift card. But of course, I can’t defend you if you get thrown in jail for sure.
[50:50] Andy: Well, what are they going to do? They’re going to just assume every answer you give is a lie because of your shirt.
[50:56] Larry: I don’t know what they might do. I don’t trust these people.
[50:59] Andy: I wouldn’t trust them either. If they’re using the Kabuki machine to evaluate whether you were telling the truth or not, seriously. All right, thank you all for joining us tonight. We ended up with a nice little crowd here, Larry. And I hope you have a good weekend too, and I will talk to you very soon. Good night.
[51:20] Announcer: You’ve been listening to FF. I’m your host, Larry Duggan. And you have been listening to FFYP.