Listen to RM128: Grabarczyk in NC and T.S. in PA
Recording live from FYP Studios, east and west, transmitting across the internet. This is Episode 128 of Registry Matters. Happy Saturday night to you, Larry, how are you?
Fantastic. It’s 90 degrees here in the outdoors, and it’s 72 of the office. And it’s just fantastic.
That is amazing. It’s hot here today too. But it’s delightful. I’m tired of like, ups and downs, cold, hot, cold, hot back and forth. It’s crazy.
So well, you should be very happy then. Because it’s going to be a 95 everyday next week in Georgia.
Yeah, I suspect that we are. I mean, finally I mean, it’s the middle of May we are probably finally done with anything that resembles cold and now we’re just going to go into Inferno mode.
Well, it’ll it’ll get it’ll get worse as the weeks go along. I think the hot time is still August. Time is June.
Okay. Hey, we have a guest joining us tonight they you sprung me like 10 minutes ago.
It was 17 and 20 seconds to be precise.
Oh, sorry. We have a Robin Vander Wall. And Robin I forget the title. You are the executive vice chairman of the universe or something?
That’s exactly right. As well as president of the foundation that supports the universe.
And that would be the universe of NARSOL, correct?
That’s right, NARSOL, yes.
Okay. And the name of it is Vivante Espero?
Vivante Espero indeed. Vivante Espero.
That’s Latin-Greek, something for…?
It’s Esperanza. At least that’s what Brenda says.
Seriously? like the non-used language?
Exactly the one that they don’t resurrect Latin and it kind of just didn’t go over too well. But but hey, they converted Brenda.
It’s a It’s a neat line language that’s like crafted by our intellect of the modern day to like make a consistent set of rules of the guys like the the male, female and all that stuff.
Well, there was actually political motivation behind it there was a desire it was part of a group of people who would actually form the Nexusor the core of movements towards a more unified Europe. And of course, we saw the evolution of that in the European Union, but this guy I can’t remember his name, but he was very engaged in the idea that they needed a common language and if they had a common language, they could deal with their disputes more, I guess, less pugilisticly.
I see. Hey, take a quick breather real quick Robin. It appears as though Can you move your microphone either like down to your chin? Because you are panting and breathing a little bit?
Yeah, sorry. I hate to breathe.
If you could stop breathing that would be better.
Well, he reminds me of people who make obscene telephone calls.
I wouldn’t know anybody like that.
Nobody at all? Nobody? Nobody, nobody. Alright, so are we gonna go back in? Are we ready?
We are ready. Let’s do it. This is going to be a fun episode because we’ve got such a delightful rulings out of the court system both federal and state to talk about tonight.
Yeah, we do. Um, we should first thank, you received a gift in the mail, didn’t you?
I did. I received some fudge.
We had a listener, a very loyal listener, who offered to send in some fudge. He is a Patreon person. And we’ll just say that his name is Justin and I can’t thank you enough that is super generous and kind for anyone to think of us and I’m pretty sure it’s homemade too.
It is indeed he put a lot of effort into it plus the cost but the girlfriend packed it up in some nice containers. I don’t even buy containers like that for myself. So I use the little throwaway ones that you buy other products in and then you save them after you wash them but there are these nice lockable containers and it did get a little soft because it was in the outdoor package box for hours before I realized it was there because with the building closed all they do is just leave the key in the regular mailbox so when you go down to pick your mail up I have a key and I have a package I saw refrigerated it so it would be it would be a little bit more back to its original form and it’s fantastic.
Awesome. So hey, if anybody else would like to send large screen TVs, perhaps microphones or fudge, Blue Apron boxes, cash works to I’m all open for these ideas.
Now Now I did in my last will and testament since I’m at the age I am. I put it in there in case anything happened to me that they should check the fudge in the fridge but so far nothing has happened.
All right, well then let’s move on. Let’s talk about this decision from North Carolina which is the entire reason why Robin is even here to begin with. Can please someone pronounce the name of the plaintiff?
there’s, there’s a significant number of consonants that are all strung together that makes it challenging for me to put those syllables together.
Well, he’s a gracious man.
I imagine so and i don’t mean any disrespect to the individual over this, just like that’s a crazy number of consonants to go together. Larry before I just want to clear something up says on behalf of himself is did he file this pro se?
No, he did not.
Okay. Okay. Well, then can you guys go beat it around and educate all the fine listeners on what is going on here in North Carolina?
Well, I’m going to let Robin do most of that. But I will tell you the issue is really quite simple. When you when you move from one state to another, depending on the language of the statute in that state. You may or may not have to register you may not be required to register. In our state, our state statute says that it’s the offense that’s on our list or their equivalents. In North Carolina at that time, there was a, there was a component that required substantial similarity, which equivalent is a little stronger standard than substantial similarity. So this person was not provided any due process. Now, folks don’t misconstrue the question. The question is not whether you have a sex offense conviction in Georgia, when you move to North Carolina, whether Georgia should have ever required your register. The question is, when you get to North Carolina, is that Georgia conviction substantially similar, and what they were doing in North Carolina, most states, they’re letting the sheriff when you come in you say I’m here to register in Georgia for making obscene phone calls. They say, Well, it looks kind of like it, I guess it would it would fit it’s similar to this. And they were making an administrative decision without due process saying you have to register because it’s equivalent to this. And therein lies the problem because there was no due process. So Robin, how did this case come about? What what what precipitate? And I know the answer to this but for the listeners what what caused this case?
You can’t really start with this case, you have to go back to a preexisting case, the outcome of which we got in I think November of 18. That was the Meredith case, Meredith v. Stein, Jonathan Meredith, was registered I think his conviction was, I’d say it was Oregon or Washington or someplace, but he moved to North Carolina back in the mid 2000s. And he stayed he was in Person county where they did not require him to register. Then he moved to Wake County, I think in 2009. And they didn’t require him to register there, either. And then back, let’s say around 2015, the sheriff came and knocked on his door, same County, Wake County and said, Oh, we’ve made a mistake. You have to register after all, so he lived in the state for, oh goodness, 12, 13 years without having to register with this preexisting conviction from another state. And then he was placed on the registry, by virtue of the sheriff’s department’s determination that he ought to be on there. And he didn’t, that didn’t sit well with him. And he actually, as I recall, he contacted us North Carolina RSOL wanted to know, what should he do and I said well, you need to talk to our attorney and, and Paul picked up the case. And they filed the original case, which was styled the very same way. It was the exact same complaint. the contours of the complaint were identical to what you just got done explaining as a due process violation where local law enforcement was placed in a position of essentially having a judicial role making a judicial determination without any guidelines without any kind of information from the state about how to proceed. They just more or less willy nilly decided who should and shouldn’t be on if they came from out of state and that case proceeded along I think it was in October is when it was filed. And December of 2017, the state actually removed Mr. Meredith from the registry in an attempt to moot the case. And then they filed a dismissal based upon the fact that it was moot. And the judge would not hear of it and decided that, and in fact, Mr. Meredith wanted to pursue the case. He didn’t back away. Paul, I think, spoke with him and I gave him an opportunity to back out He said, No, I want to, I want to do the right thing. And so long story short, we win that case. The only problem with the Meredith case is it only applied to Mr. Meredith. And because the scope of that decision was so broad, and seemed to be so clean, it looked like a great opportunity to go back at it and take another crack at, you know, at the law, at the statute and produce a result that would apply to everybody who was affected in that class and there’s more than 1000 individuals on the registry in North Carolina who were there as a consequence of an out of state conviction, or an out of state registration that occurred prior to December 1 2006. And Mr. Grabarczyk was willing to play point in that case, but it was planned sort of from the beginning that he would step out as the plaintiff. And then after that, after the complaint had been filed, Paul motioned move the court for the establishment of a class, which included everybody similarly situated. And then he got the court’s permission to, to represent that class of individuals in their in their absence, so to speak. So that’s where the case came from. We never were in any doubt about the outcome. There was quite a bit of work that went into it. North Carolina RSOL played a role in that because we contacted as many of the thousand folks that comprised the class. we contacted them through mail. I think there was about 950 people, we could get good mail addresses for, some in state some out of state. And we sent them a letter, we had a them nice little reply mechanism that they could send back to us with some check marks, which would help us determine what we were after. The reason for the mailing is we wanted to create evidence to support the fact that we didn’t believe anybody in that class had gotten any kind of process that they could recall. And out of the 950 people we mail we got back about 345 responses in the mail, which is an incredible response. And, and everybody had checked what we expected to check there was about five of these individuals who checked either both boxes, or clearly didn’t understand. So we followed up with those folks by phone, and we got the results that we needed. Now the funny thing is we never actually had to use that evidence because it the state was so convinced of its impossibility. Going to trial, they spent about two months of time negotiating a settlement back and forth, back and forth. And, Paul, I mean, I mean several occasions, I know Paul felt he had them exactly where he wanted them to be. And then something would happen in the eleventh hour and the deal that the stipulations and the detail on the deal would fall through. So Paul finally just got frustrated and said, you know, what, the heck with this, I’m filing for summary judgment. He filed for summary judgment, the state, interestingly enough, the state did not file a cross motion for summary judgment, they simply replied to Paul’s motion and, and, and the matter was resolved without a trial. And of course, we know the order was signed on May 12, granting all the relief that Paul had sought for his for his clients.
I’ve got a couple questions Robin, and there’s an importance of December 1, 2006. What is what is the importance and significance of that date?
The importance of that date is that’s when the state and I’m not sure how they came to understand the problem they were facing. But somebody was smart enough to realize this statute is probably at some point going to cause us some issues. So they went in, and they replaced the preexisting statute with a new language. So while the substantially similar language, I believe is still in the new statute, they added additional language, which essentially means that if you come to North Carolina, and you’ve been convicted for any registerable offense in any other jurisdiction, then you automatically qualify for being placed on the registry in North Carolina. So it took the burden off of local law enforcement from having to have any kind of process. So there’s still no process, but at least insofar as the complaint here was concerned, the law enforcement agencies, the local deputies, and chairs, departments are no longer in a position of having to make any sort of determination. It’s a more or less a yes or no question. Were you registered in the state that you came from? And if you were, then you’re going to be registered here.
This reminds me of when I was assisting in the challenge in Maryland some years ago, when the when the state put forth their arguments about why that they should prevail. And I said, Well, that’s all I’ve got. They don’t have nothing. I wouldn’t be quite as adamant in this case. If this is all they’ve got, but you’re correct, Robin, they did add the language, it still has substantially similar or if they’re required to register in another state, another jurisdiction. But I believe that that is a brand new cause of action. And I believe that the Equal Protection Clause will be the hook that you’ll use to go forward. And I think we discussed a case on this podcast some months ago out of Indiana where that foundation is already in place for a federal court saying sorry, guys, when you come into Indiana and it may have been a state court, but there was a there was an appellate level decision that said, when you come to Indiana, you deserve the protection of the Constitution. So I think that that’s going to open up a new front for litigation. But then you did say something that puzzled me. You said you wrote to the people who are out of state. So if they moved from Wisconsin to North Carolina, and then they left North Carolina, what was the relevance of seeking contact with those people, they’re no longer in North Carolina. So what, what hook did North Carolina have over them?
you know, I’m not exactly certain the answer to that question. I just remember asking Paul, should we and he thought he thought that we should and I know that in the follow up, he still fully intends to contact those individuals, but it is a fair question to ask. now some of these individuals apparently are still on the registry in North Carolina, even though they’re no longer here. So it’s possible that they will be removed. Paul’s opinion is the state will more than likely not give much care one way or the other, about these individuals, so that’s, that’s, that’s moving. That’s a moving part. There’s a lot of moving parts right now because we don’t know what the state’s going to do. And when we talked about this on Thursday in our conference with Paul, he wants to give the state a couple of weeks to do as he put it the right thing, because they have the tools, they have everything they need, if they need a list of the names, we’re happy to provide that for them. It’s not a very difficult thing for them to do it at their level. Whether or not they’re willing to do that, or will do that who knows, we don’t know if they’ll file for appeal. They got 30 days to file a notice of appeal. I’m dubious that they will and the reason I say that is because they didn’t do it in the merit of the case, although they postured as if they were going to do it. Ultimately, they didn’t. And I really can’t understand, given the similarities between the two causes of action. I can’t imagine why they would think that their strength is greater now than it was on appeal. And in fact, if I were Josh Stein, I would say, we probably want to keep this away from the circuit. Because if we get, if the circuit affirms, then we could open the door to challenges like this in sister states that wouldn’t be too pleased with us. I don’t know if they think that way, but I’d be thinking that way. So we don’t know exactly what’s going to happen. But I know Paul’s got his eyes on it. And he’s he is eager to force the state’s hand in this matter and to do the removal that’s required if that’s what has to happen.
Well, what I would say and I know at the risk of sounding negative, as I read through this, and I made highlights what I do Robin is I make highlights in yellow in decisions that we’re talking about. And then the people can go back and look at and looking at the disingenuous way that they litigated and the arguments they put forward, my reading of this as that they will do exactly what they states typically do. Which would be to, the difference that I see here to address your point, the difference is, this is hundreds if not approaching 1000 people that’s different than just one person with Meredith. So this gives, this gives the opportunity for a lot more people to get relief. So I think that that would weigh more in their in their favor of one to take an appeal up to the circuit. And I don’t think I don’t think they’re gonna care a whole lot about the other states. But everything in terms of what they argued was so disingenuous, I would be very surprised if they magically became ingenuous at this stage, and decided to just fold their attempt and do the right thing.
Yeah, and you may very well be right. I mean, given that this is obviously an issue that cuts politically and making decisions about how to how to proceed on their part will largely have more to do with the politics than what’s legally possible or not. And if they go that route, I guess we’ll just have to wait a little longer for a final disposition. But Paul’s 99.9% certain that the circuit would look at this and just affirm, and we’d all be quite shocked if the circuit the Fourth Circuit Court to make any, if assuming there was an appeal, we’d all be shocked if the Fourth Circuit set aside this this verdict because it’s so clean. It’s so tight. It’s, as you say, I mean the state’s arguments are disingenuous. They didn’t they really didn’t have an argument. Other than to say, I think there are two arguments whereas you know, they tried to make the argument that they did get process, which was just the way that they presented that argument was tortured. And then they tried to make the argument that it didn’t matter whether they got process or not. They were ultimately, they were required to register by virtue of the federal law. So they, you know, they, they tried to sink a hook in Adam Walsh and claim that that that they would have to be registered anyway because of the outcome there or because of the law there. Well, the judge was quick to point out that North Carolina has never adopted Adam Walsh and has never even defined the term sex offender in the same way the federal statutes do. so I’m not sure they were just grasping their whatever they could grasp and the judge was was too wise to to fall for that and judge Boyle; You know, he, again, I get what I get secondhand through Paul, but Paul’s opinion and perhaps I shouldn’t share it too. Well, let me just put it this way without putting words into Paul’s mouth. Boyle appears to be someone who finds the entire regime of the registry problematic and is probably willing to go a little further in in in helping dismantle certain aspects of it.
I would say that what judge Boyle did here would probably be, it would be hard to flip on appeal to overturn this on appeal. And now what the North Carolina legislature would likely do to address this decision is their strategy would be to change the state law to define a sex offender as anyone who is defined as a sex offender under the Adam Walsh Act. But that still doesn’t save them. Because since all the states have different definitions of sex offenses, some state may be… a good example is indecent exposure. Georgia or most states, for that matter, require indecent exposure, that is not a defined sex offense under the Adam Walsh Act. No state has to register indecent exposure, they all do. So that that creates, I would love to, if they passed that law, which would be the logical thing they would try to do, and say if they have a federal duty then that translates to a state duty. But I would come back to him again and say, Well, what is a sex offense because states have sex offenses that are not a federal sex offense so then they would have to clean up the language and say, if it’s a federal sex offense, and again, I would still come after him and say, well, a sex offense under federal law. How do we determine what’s a sex offense under federal law, because they’re still you’re still going to need due process what the state so desperately wants to avoid is due process. And I don’t see any way they can do that.
Yeah. Well, I see that part of it. I do believe that the state certainly could still create a process you can tell from the reading of the opinion here, the judges is a little miffed that they’ve neglected to do anything to address this issue. My thinking is given that he has rooted judge Boyle has routed so much of his due process analysis in the fact that he sees Registration in and of itself, and particularly the restrictions that go along with it is definitely a punitive effect of these policies. At that point, I think if they were to come up with the process, and then these individuals ended up back on the registry, by virtue of that process, I think we’d be set up for pretty darn solid ex post facto claim, given what has been said, and what already kind of pollutes, or I should say populates the legal analysis, at least insofar as these individuals are concerned, where the judge has already recognized that being placed on the registry in North Carolina has a punitive effect, and is a certainly certainly creates a number of depravations on one’s liberty. Well, for the state to create new process at this point, put all these people back on the registry, I would see that as being a great opportunity for us to go back at it from an ex post facto angle. So there’ll be several, you know, tools that we could put into our toolkit to use in a further challenge somewhere down the road. And I agree with you too. And we ought to, we ought to pay some attention to what we can do to provide some relief for the folks that that are registered as a consequence of an out of state conviction post, or after December 1, 2006.
Well, creating a due process is going to be the last thing that they’re gonna want to do because that costs money. So they are going to look at every option short of creating due process because of the administrative cost of that. And in their mind, the easiest way is to change the law, and I’m not saying that they’ll be able to succeed, but that’s going to be their first course of action is to try to change the law. They put forth the argument in this case that there’s a federal registry, which there isn’t, but they put forth that argument. So they’re what they would do is they would propose to modify North Carolina law to say that if you have a duty to register under federal law that you have a duty to register in North Carolina and that would eliminate due process. in their mind, they would say, Well, he came from Wisconsin, he had a duty to register in Wisconsin. under federal law, he has to report in North Carolina. But that’s not where the analysis ends because the federal law can’t force North Carolina to register a person they don’t want to register if they don’t cover that offense. All they can do is force you to present yourself to North Carolina for registration to participate if North Carolina wants you to register. If North Carolina says we don’t register obscene phone callers here, then that ends the inquiry since there’s no federal registry. And that’s where I get back to my point, you still have to have due process to figure out all those things. So what North Carolina wants so desperately to avoid, and all states want to avoid is due process because it costs money. I don’t see how they can do that. But that’s what they’re gonna want to do.
Well, I guess you know, at this point, we’ve got a lot left to watch here. And we’re pleased with the outcome. But the devils in the detail, and there’s still, there’s still a lot more to this story. We’re already Of course getting emails from people who were part of the affected class and that we’ve been in contact with. And many of those individuals are now more connected than they were before. Because we’ve collected up quite a few names and numbers, and we keep those folks in touch with us for other reasons. So we’re getting a lot of inquiries, what does this mean? What am I supposed to do? And at this point, we’re just telling them, hey, just, be careful. Just be cool. We’re, there’s a process here. Some of some of what we’re dealing with right now is a bit of a wait and see. And we see this happening right all over the place. We see it happen in Michigan, we see it happening in Pennsylvania, when we have something really wonderful happen. It doesn’t necessarily fix anything right away. There’s still parts of it that have to be completed and there’s still options the state has and there’s still things that the lawers have to pay very close attention to right, going forward from that point. So it’s not a Pyrrhic victory, but it’s, it’s a victory that begins a chain of things that come afterwards.
It’s It’s a fantastic victory. Paul Dubbeling, who will be speaking at NARSOL’s virtual conference, is a marvelous litigator. He’s a marvelous speaker. And he’s a great attorney. And I enjoy working with Paul. He’s actually working with us on our case where we have a similar challenge pending here. And we haven’t quite gotten the same traction that he’s gotten in North Carolina. We’ve got an older federal judge who hasn’t, who hasn’t seen things the same way. But I would not say that that’s in any way a slight to Paul. But we are tracking this very carefully. And it’s a fantastic win because it’s a class, it’s a certified class. And that’s hard in and of itself to do because of the complexity of that people think you just take a rubber stamp and put class action and that makes it a class action and it doesn’t. And every time I have the opportunity with an attorney, I always ask the same question. Can you explain what it takes to certify a class? Because it’s not just a rubber red ink that says class action, that makes it a class action?
No, it’s not. And let me too while I have this opportunity. There’s been a couple of individuals who’ve commented on the blog post about this case, this is not the same case that we’ve been talking about for so many years now. The NARSOL v. Stein case, which continues to, it is still pending before judge Biggs in the Middle District of North Carolina. That case is ongoing. We’re still in the discovery phase. We I think have a trial date now set for April 2021. And we’ve got all the various timeline has been set for that. This case, the Grabarczyk v. Stein case is a separate case that only concerns individuals who were made to register in North Carolina on the basis of an out of state conviction. It is not the NARSOL v. Stein case. We still proceeding with that case. And when we have something to share, we will. But that case, the NARSOL v. Stein case, has the capacity to be far more reaching in its impact.
Well, I think this, this helps you get in that direction. But go ahead Andy.
Well, I think rolling back to the due process side of it. I guess I’m trying to even like formulate a thought just for all that was said. But because there’s no due process, meaning there was nothing established that says crime A in state A is equivalent to Crime A in state B. That is almost at the core of this. I guess
what judge Boyle said is this and he quoted he said it in the Meredith case and he restated it in the order in this case, there is no process, period. So that’s the problem is that, you know, had there been something that’s some sort of guideline that the state had cobbled together and put out for the for the law enforcement agents in the hundred counties that we have. So when you come to North Carolina, we don’t have a statewide police force here. We don’t have a centralized police force other than the State Highway Patrol. So registration here occurs at the local level, and it is administered by the local sheriff and his agents or her agents. And so that there there’s really where the rub was, is that what what judge Boyle was looking for was some kind of state agency or some some larger, greater power, it helping to instruct the local law enforcement agencies. How do you deal with this question? Is this person in front of me right now, were they convicted of a crime in x state that had they committed a crime here, that crime was substantially similar such that they would have to register here. There was no process at all. And so what what the judge said in both cases is where there is no process, there can be no due process, right? You can’t have due process, unless there’s some kind of process. So, so the state laws from the get go just for lack of process. In fact, they, they might have been able to come out and fare better here if they were able to point to some kind of policy some place that said, okay, when you’re dealing with this situation, here’s what you’re supposed to do. But they didn’t even have that. So you had each of these counties doing whatever the heck they could, and in most cases, essentially saying, Okay, well, I’ve looked at the statute you were convicted of under in whatever state you came from, and it looks it looks very similar to this one here we have. So let’s just figure that they’re more or less the same and boom, you’re going to be required to register. There was just no process at all.
Well, Andy I’d go a little further than Robin did, due process, is an opportunity to be heard, and to present evidence, and that’s the reason why they’re not going to want to provide this because that is expensive to do that. (Andy: Mmhmm). So they’re not going to want to do something that cost the state money. But that’s what due process consists of.
And I know we talk about that, because all the metoo stuff I believe that this goes ties into that of due process. You can’t just accuse Joe Biden of doing something and like, okay, now you’re just guilty without hearing evidence. I mean, that’s what you’re referring to is due process, correct?
Yeah, an opportunity to be heard and to present a counter argument.
and so it reminds me of something maybe it was a year ago, something out in North Carolina, just the same where the person moved into the state asked If he had to register, they said nope. And then moves and asks again and like, Oh, my God, you haven’t been registering isn’t this vaguely similar?
That that was the Meredith case. what actually happened there is he moved to Wake County. And after he moved, initially moved to person county, then moved to Wake County, person county said he didn’t have to register. He stayed there three years, he moved to Wake County, he went to the county sheriff’s department. He said, Hey, I just want to make sure you’re aware of this. no no’s, no big deal. You just know, you don’t have to register here. And so it wasn’t until several years after that, that yes, the same county Wake County then changed its mind and decided he needed to be registered. So yeah, very frustrating because he lost so much he, he he by that point in time, he had a wife and he had kids and he had a job. I mean, he done a lot with his life. And that was only because he didn’t have to register that he was able to do all these wonderful things. And then we had to register you know what happens then. devastatation all around.
So and what I wanted to bring up specifically out of that is what you were describing Robin, that there’s no central authority that you have individual counties that are running their own show. That’s what I wanted to bring up as the similarity between these two pieces.
Well, that’s Yeah, in some states, like if you go to Virginia, they have the state police force in Virginia. And the registry in Virginia is managed by the state police, the Virginia State Police. So there’s at least some hegemony between the people that are doing the registering and the people who are managing the registry here in North Carolina. it’s disjointed. You’ve got the local county sheriff that’s doing that part of it, the registration part of it, and then once they collect the data and the information that’s pertinent required by law, they pass that over to the state Bureau of Investigation, and the state Bureau of Investigation is responsible for the repository of the registry. So it’s, you know, there’s some disconnectthere, there’s no real central control here in North Carolina for registration policy, and the enactment of legislative policy regarding the registry. So you really got to have 100 different counties doing what they want. And this runs the full gamut. This This not only is a problem for this particular case, but it’s also a problem with just managing the restrictions related to the registry. Generally speaking, in some counties, people can do things that they can’t do in other counties, because that Sheriff may, for instance, you may have a sheriff in one county who thinks is perfectly fine for somebody to go to church and the county right next door, may say, No, we don’t want them in church. So it’s all it’s a kind of a mess For folks here, trying to know what they can and cannot do, where they can and cannot be. It’s really dependent upon how determined the county sheriff is to exercise the full measure of the law. That’s a problem period, as Larry, I’m sure will affirm is when you have law enforcement, coming to different conclusions about what a law means and what a law requires and what a law permits, there must be something wrong with the law if you end up with 100 different outcomes.
Well, Robin, the registration process you’re describing is more typical of the states where local, where you have that bifurcated system that I, that I talked about, there’s only a handful of states where the state runs it. And even in those states, there’s more uniformity. But But still, there’s there’s there’s differences between the regions within the state, we could, we could ask the states like Pennsylvania or Virginia, we would find some of that. But what you’re describing is consistent with most of the states. They mandate this registration process, they dump it off the local law enforcement. They dump it off, in most cases, to elected sheriffs who have political considerations. I mean, I don’t write the rules. We elect sheriffs for this country, and they have political considerations to discharge their duties. And they’re going to reflect what they perceive to be the political leanings of the constituents that elect them. And being easy on people forced to on PFR is not what is going to endear you to most of your constituents
Will then chimes in and says there’s no uniformity among supervision officers either. Some officers will let their caseload go and go to the movies and some won’t.
But that’s the point I’m making when we’re dealing with. We’re dealing with human beings and human beings have different life experience and they have different views on life. And some some human beings that have the exact same jobs with exact same powers believe that it’s their duty to inflict punishment. There are some people who would they when they work in jails the jailers have made it clear Our duty is merely to hold you to until the authorities that put you here release you. Some jails take the position like Joe Arpaio, Our duty is to make your life as miserable. So you won’t Come here. That’s just human nature. I mean, that’s the human condition.
Have we beat it to death yet?
We have is time to move on. that was delightful to have to have you here on this and you’re Welcome to stay if you ilike.
I Appreciate the opportunity to talk about it.
Fantastic. Do you want to stick around or should we let you go?
I’m gonna go ahead and depart I think. Appreciate it.
All right then. Well, thank you so much for coming, though.
Yes. Thank you for having me here today.
Beautiful, beautiful. Mr. Larry. Well, thank you, Robin and I will talk to you talk to you very soon. He’s already, No he’s not gone.
I’m not gone yet. Yep, yep. So talk to you soon. Thank you.
Ready to be a part of Registry Matters. Get links at registrymatters.co. If you need to be all discreet about it, contact them by email. email@example.com you can call or text or ransom message. (747)227-4477 want to support Registry Matters on a monthly basis, head to Patreon.com/registrymatters. Not ready to become a patron, give a five star review at Apple podcasts or Stitcher or tell your buddies at your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting without you, we can’t succeed. You make it possible. The article the first article that we’ll cover is from the appeal and it’s a pregnant woman in Pennsylvania denied release. And tell me what you find funny about the article. What did the judge say?
This is in Erie County and i’m not i’m not sure which what the seat of Erie County is, but the judge said that she would be safer in prison for her and her unborn that that would be the safest place. It’s a stretch to think The prison, I mean, you would have to be a pretty dysfunctional individual. And you would have to be hanging out with some really strange characters to imagine that a safety factor from a pandemic, you’d be safer in a correctional facility, but that’s what the judge said.
Wow. safer that way Yeah? That’s crazy.
Well, and the prosecution was they were not in support of the release, because apparently she has difficultly complying with probation conditions. So so they think it’s a good idea that she stays in custody. But again, I’m, I’m soft hearted when it comes to people. Even if I have no heart for the person who’s carrying the child, I want to keep the child safe.
I don’t want to like try and jump into a medical field that I don’t understand, but I don’t know that I’ve heard that there are they’re probably they’re going to be risks to the mother but I don’t know that there’s any direct or internal impact on the fetus the baby? I’m not I’m not sure about that. But obviously if a if a woman gets deathly ill and has to be intubated, it’s probably not good for the, for the growing kid.
Well, what is the woman dies? Would that be good for the kid?
That’s probably going to end up poorly for the kid. Just Just as a rough rough idea.
Well, that’s what happened in the case on April 28, four weeks after given birth by C section while on a ventilator Andrea Circle Bear died from COVID-19 in Texas. So they went out to baby and save the baby, but but she died.
it just seems like not a good thing.
It doesn’t seem like that. And I would think that we could find some, it’s kind of hard for, for a woman to go out and conceive a pregnancy at this stage to avoid I mean, you’re either pregnant or you’re not. And you didn’t, and you didn’t. I don’t think anybody who got pregnant to try to get out of jail because of the pandemic.
Haha, Well, I’m probably gonna get locked up in a couple weeks Larry so why don’t we go get knocked up so I don’t have to So I don’t have to participate in that silly jail thing
knocked up, knocked up. Can you be more specific what knocked up means just for our audience?
That seems like that would be a colloquial term, that would be the expression of getting pregnant. I’ve never I don’t think that I’ve ever heard it defined, Larry. I’ve just heard it used.
Okay, so as long as we understand that that’s a colloquial for becoming pregnant.
If anybody wants to chime in and chat and help me out here, I would be much appreciated to help bail me out of this mess that I’ve just gotten myself into. Um, but he just says you’re going to be safer in prison where we have discovered that there’s not enough cleaning for people. There’s all kinds of challenges going on from that side of the house. I believe. (Larry: I don’t understand it.) Alright, well, then I guess we will move on to an other article. Also from the appeal. It says jails and prisons must reduce their population. actually this is mostly related. And how many people got released from just just a very small number of people, we won’t stick here for very long. But there were a couple things that were interesting in here, I think
it’s been far less than what would really be necessary for achieving any tangible result. Because of the crowded, crowded conditions that would still exist. I think we’ve talked about getting prisons down, we pull it out of our hat, and we confess we pull it out of our hat. But we don’t know how you could do anything that approximates social distancing. If you didn’t cut the population, at least in half, if you’re running at capacity, which most institutions are, but the reductions have been so minuscule in comparison to the number of prisons that we’ve lagged so far, far behind, I’m dubious It’s going to have any result. now in pre show discussion with another one of our supporters it was pointed out that Just because you release people, they don’t magically have any place to go. And my response to that is you’re absolutely right. Just, there’s not magic, but you put people in jail, it often disconnects them from their support structures, if they have an apartment, very few could continue to pay the rent on the apartment. And, and their income streams do usually dry up unless they’re on some sort of pension. So I understand all that part of it. But we could also relax the requirements of what we will allow for a residence for people, for example, on the people forced to register, rather than not letting them live within 1000 feet of everything that you could conceive of, including, I think, in my state, I’ve been hearing that they’re telling folks that they might put a school bus stop somewhere so you can’t live there because that looks like a prime location where they might put a school bus stop. If they would relax some of those limitations, I think we would find some of the answer in what what people would have in the way of options, but it would not make an option for Everybody, there would be people who’ve been locked up for a lot longer of years. And if you shave a year off of their time, and they and they had not been planning to get out until a year from now, they might not have any place to go. I understand that. So what would it be? Would it be good just open the gates and let them out with no place to go? Well, that’s a public policy question that that is legitimate. Would they be safe for homeless pushing a shopping cart around?
I can’t imagine that they would be there. There was something in there it says most prisons and jails the United States operate at 100% capacity. I bet you that’s demonstrably false, that it’s not %100. It’s %120, %140, 200% capacity. So it’s not %100.
Well now those liberal godooders in San Francisco, they say their facilities are operating at 50% right now. Which like I say…
maybe if they include the gymnasium?
that well but they’ve been on a campaign to release population out in San Francisco. They’ve actually taken it seriously. But, but they’re the anomaly in terms of Releasing people. In my state, the state itself have, last count, something in the range of 30. And we’ve got a state prison population of around just shy of 7000. But what impact is releasing in 33, 35 inmates have on a population of 6800?
that doesn’t even matter.
It would matter if you were one of the 33 that avoided a death sentence, but but it doesn’t have any tangible impact on the spread of the of the COVID-19 virus, it just wouldn’t.
No. And then again, if we, if we, you know we’ve talked about that, the DA is the one in control of the whole thing. So the DA could be like, Hey, we’re not going to bring these cases because they’re pretty minor. We could have, if you’re less than a year out something along those lines, like we’ll just we’ll just wipe out the rest of that you’ve already How much time do you need to do? Are we just going to put the screws to you to get every last day out of you? But how bad would the prison guard union and those cats, How hard would they push back on doing anything like that?
Well, initially, they wouldn’t push back because everybody wants a lighter workload. They just don’t want to lose their job.
Yeah, they wouldn’t push back until somebody starts getting laid off
well, but you would have to really reduce the prison population to the point where it would start compromising jobs. Now, so if you take a president from 120% capacity down to 90% capacity, how much staffing reduction would go along with that?
it’s probably pretty close to zero,
probably not much. But if you reduce the prison population from 120%, capacity down to 50% capacity, theoretically, you would need less personnel. I mean, you still got the same number of square feet that need to be monitored, but you’re not taking people out for various things to see the doctor ,to see their attorney, to sick call wherever they take them to the infirmary. You wouldn’t be having visitation you wouldn’t be screening as many visitors that are coming into the prison. So there’d be a whole lot of tasks that would drop you wouldn’t be you would not be serving as many meals so that perhaps the, perhaps the civilian staff, and the officer corps would start dropping, they would oppose it at that point, because all of a sudden we’re talking about people’s livelihoods.
well, I mean, are you in favor of eliminating your job?
Well, I mean, we, my job is almost to eliminate my job and eliminate all the other people. I mean, that’s almost my job to begin with. So no, I’m not in favor of eliminating my job. Well, if I could write perfect code that would never have bug then yes, I guess I could code my way out of my own job.
But very few people are in favor of eliminating their own jobs. They’re in favor of having the competitive advantage. But I doubt very many people when you ask them, now you realize if we succeed, there’s going to be only the need for a third of the previous level employment. Very few hands would go up to say this was the right course of action.
Yeah. All right. Well, then since you, you love me and my technology. We have an article from law360.com that says ankle monitors are replacing cash bail, but at a cost. How is it that we would send somebody into the bail system? So they’ve been charged with crime, you know, my favorite felony jaywalking, and the judge says, well, we’re not going to lock you up, we’re going to put you on an ankle monitor. And that’s going to cost you somewhere between , , or even a month. And now you’ve got this I don’t know what to call it. You’ve got a little you’ve got a bracelet around your ankle that it’s not really a bracelet. It’s not attractive. It doesn’t come in fancy schmancy colors, probably a little bit uncomfortable. But if you weren’t to sit in prison, the county, the city, the state would bear that cost but now we push it off on you. It doesn’t seem right.
Well, of course it isn’t right. But this is the reason why I push back when you do all your fluttering and jumping for the for expanding use of technology. Well what happens is we don’t actually reduce the number of people who are in the correctional setting. We merely replaced the revolving door with a person who got booked into custody. And we tell them and all your liberal progressives out there think this is such a great thing, what we tell them is well, you don’t have to post a bond, we’ve abolish cash bail, and we’ve got this great system now. It’s called electronic monitoring. And it’s for setup fee for anywhere from five to a day, you can be out in the community being monitored. And, and that’s also a travesty. Because how many people can afford that? I mean, there are people who can afford it. But there are a lot of people who are earning minimum wage, which is I think, and 25 cents an hour at the federal level. And they can’t they can’t be…
I can’t look at math, how much would that be per month?
it wouldn’t be enough to cover a month if you’re earning and 25 cents an hour.
Seven times four would be 280. So you’re making before taxes, and then so to afford that you’ve got to work somewhere close to two weeks. And then you still have rent and transportation and food and whatever else. What I am curious about is there’s a section in there where they talk about who has the various levels of jurisdiction that some of these places almost seem, they almost seem like debt collectors, and they have almost no authority over you. But other than other ones do have some sort of hooks into the system and it was a little bit confusing. I was hoping that you could clarify some of it of where jurisdiction might lie with these companies.
Well, apparently as best I understood the article and I agree with you it was not clear but the these companies and your state is a good one at privatizing everything, including probation supervision. I mean, it’s a great system you have in Georgia, isn’t it? But like in Alameda County, California, which is the bastion of progressive thinking where you would never expect anything to be oppressive because they’re so much lightyears ahead of the rest of the country. You pay this organization called leaders and Community Action, Leaders and Community Alternatives and 50 cents per day for your monitor. And I’m guessing that’s a nonprofit. And so one guy that in the article had Leukemia had to borrow money after LCA repeatedly threatened to jail him. According to Phil, Executive Director of equal justice under law, by the way, Phil will be speaking out the virtual conference which is coming up next month. (Andy: I wanted to bring that up. Yes.) But this, this is this is a travesty of how technology gets misused because technology should be used as an alternative to incarceration, not simply to allow you to expand the universe of people under the correctional control. watch the news. I know that you would never turn on the news if your life depended on it. But for those of you who actually watched the news, when you hear that someone got released from custody, listen to the amount of times they say and they were required to be on ankle monitor, just the standard jargon. And they were released on these conditions and ankle monitor. Everybody is on ankle monitoring. Now, no matter what you’re in trouble for, if you’re released from custody pretrial, you’re on an ankle monitor. And usually they’re cost associated with that monitoring for the privilege if being… So we’ve abolished cash bail, where you pay a one-time fee, and then you get to pay on and on and on and on. Wouldn’t that encourage you to get your case resolved because you pay and 50 cents a day to be monitored while you’re pretrial.
But isn’t this diversion from having people sitting in jail?
Well, it should be but that’s my point. It isn’t.
Sorry for the softball question.
It’s not a diversion because they continue to jail people. Unfortunately, law enforcement believes that they need to be arresting and jailing as many people as they can even In a medical pandemic and a global pandemic, they’re doing that they’re still arresting people. They’re still bringing people in on what I would call bs. And so they arrest people so they could issue citations. And the only way that we’re going to stop cops from arresting people is we have to require that they be issued a citation for enlisting offenses for them. But if you give the cops discretion, more often than not they’re going to book the person and I and I don’t have any statistical data so don’t write me an email say I can’t substantiate that. But I know that a lot of people get arrested when officer has discretion to issue a citation
hmm All right. Well, I don’t really have anything else should we move on?
We should I’m tired of this cuz cuz cuz you know I have ambivalence about the abolition of cash bail. I see the problems and I agree what the problems are, but I don’t think the solutions we’ve come up with has done anything other than create new problems
very well. So from the New York Times, sentenced for three strikes, then freed Now comes a push back. This is where three strikes law. And one of the cases that they profiled in the three strikes, like the guy needed some cash. So he shoplifted some alcohol so that he could sell it. So he shoplifted, Let’s say it’s with alcohol, he gets tackled by the police. And that pushed him over the limit to be three strikes. So he gets life in prison. That seems a little excessive. However, then in I think, 2012, there was some rewriting of the laws that allowed a pretty good number of people to have those rolled back to, you know, maybe they’re getting out very soon in the next year, two, three years, something like that. But why is there pushback?
Well, let’s, let’s do a little bit more detail. What happened is California being the bastion of progressive thinking that’s so far much further ahead of the rest of the country, you know, being that the sophistication level, they have this referendum system where people, the people themselves can enact requirements. This referendum process is horrible. It’s the whole thing that the country was founded not to have, because it results in uninformed decisions being made by the people who are not qualified to make the decision. So California’s three strikes law, along with other states resulted in an overwhelming prison population. And the federal judge finally set their foot down and said, You got to reduce the prison population, or you got to build more facilities. And course, you know, you can’t build more facilities because that costs tax money. So they went back and they made it where the three strikes law wasn’t as onerous. And I don’t know all the details of it, but they changed it where people that were previously sentenced to three strikes were eligible for relief. But now the pushback is coming because some people that’re getting relief, It says now among the 6000 sentenced over the three strikes that have been freed, or reduced, Californians first voted to soften the law and in November, the state’s residence will be asked to vote on whether to go in the other direction and toughen because of the pushback. All it takes is, If you release 6000 people, of course, there are going to be people who are going to mess up. They’re going to be people who were in those overcrowded prisons who were not rehabilitated because there were there were no programs available. There’re going to be people who had no desire to be rehabilitated. (Andy: Right). And, of course of the 6000, Some will have messed up that is not a reason to change the law. That is a reason to deal with those people. As I’ve said before, I agree with the police on this. The police say that if one of us messes up, don’t tar and feather all of us because of what one did so let’s look at the 6000, 37 of them messed up. Let’s deal with those 37 and let’s do what the police say. Don’t judge the 6000 by what a few did and don’t paint with a broad brush to change the law because of what a few did. But that’s what’s happening. The push back.
you probably didn’t see the movie Full Metal Jacket Did you? (Larry: No). all right well there’s a scene towards the beginning there in basic training and I can’t think of the there’s there’s a an overweight person, I would say fat, but that’s not PC these days. And he causes all kinds of problems for the platoon. And the drill sergeant finds a donut in his in his footlocker. So then everybody has to do push-ups while he eats the donut. That’s what you’re describing is when one person messes up, everybody has to do punishment for it. And it’s not cool.
that’s precisely that. But that’s what happens when you when you have a state setup like California, and I love you to death California, but your government sucks. This referendum process is a joke, and it lends itself to mob rule. And that’s what you get, but judge Persky. That’s what you’re gonna get with this because if you give the voters the chance to be tough on crime… That was 2012 most California’s have long since forgotten about what they were facing in 2012 when they were running at 160% of capacity, and they were told to cut their jail. All they know now is they’re hearing on the news that some of these people have done serious crimes since we released them since we lightened up requirements and let people out 6000 of them and there’s been some bad apples and we’ve got to do something and they’re gonna go the other direction.
Well, riddle me this though. It is the referendum process and I’m doing air quotes when I’m not on camera. Is that isn’t that what would be like true democracy where people are sitting there voting on everything that happens if we take everyone’s voice and takes everyone’s opinion of Yes or no? of everybody? That would be true democracy?
It would be except that’s not what our founders intended us to be. they never intended it, we’re supposed to not be a true democracy, we’re representative…
totally understand so then has, as far as you know, or do you know has California always had or did that get put in place somewhere else along the way?
I do not know we’ll have to have a Californian explain that process to us. But I know that as far back as 1978 when they passed Proposition 13 that destroyed their state revenue base, because their taxes were so high that they decided to cap tech property taxes. That advocate were in the process that they’ve been using all these decades sounds and enacting junk law all these decades since then, and it hasn’t changed.
And while I can see why certain people would be in favor of it, but you then need an unbelievable amount of education from that doesn’t get slanted and twisted by the people giving you like the Marcy’s law stuff is, the information about it is complete garbage and they get a famous actor on there to describe what it is and how it is and like oh my god, well, I like Kelsey Grammer, so we should vote for this thing. But when you are just an average or low informed voter, then you’re easily swayed and that’s why we would want like the professional so to speak to be driving agenda, I guess? I think?
Well, I think it’s preferable. It’s not the cure all end all either because they’re supposed to be representing the will of the people. If you’re, if your phone calls and emails and all the communication from your constituents is running heavily in favor of something, theoretically, that’s your position because you’re the voice of those people. (Andy: Yep. Yep.) And it always tickles me when people when I say, Well, wait a minute. They are representative of their, of the constituents of their district. What are they supposed to do? Are they’re supposed to flip us a middle finger and say, Well, I don’t care what you people are telling me. I’m going to vote completely contrary to my constituents, and to hell with you people, is that what you would want them to do?
That’s probably what they want them to do. No, just kidding. That’s not what they would want them to do. then they wouldn’t get reelected. I mean, I’m assuming that when someone gets into office, very few get into office going, I’m going to be a one term person. I’m going to do my agenda and I’m going to get out. They probably want to get reelected.
I would say that’s Probably the case, you generally can’t achieve all your goals in one term. And if you’re sinister and cynical, you believe their goal is to line their pockets. If you’re not as cynical, which I’m not, then you believe that they have They have a desire to see the formulation of public policy, it’s going to improve the life of future generations that come after us, as well as the present generation. And you can’t do that if you’re not in office
very well. And then from the Salt Lake Tribune, a Utah man convicted of gang related robberies to be let out 40 years early because of a new law. This I almost confused these two articles there, they seem to be very similar, that they’ve changed a law that a person was put into prison for 55 years. That’s a long time, Larry 55 years is a monster man, not for someone as old as you. 55 is, I don’t know that’s almost like teenagers for the average person. And they enacted a new law and he may get out in the next like, year or so.
And that’s The reason why I put this in here because it’s it’s a this is federal. And the first step Act provided the flexibility So this person was able to come back and get a sentence reduction because of changes made in the first step, first step act, unfortunately, due to the republicans led by Senator Tom Cotton of Arkansas, they weakened the first step Act. So therefore, most people that would be in our constituency audience are not able to benefit from this. But This is an example of some good that could have been more wide, widely available, had it not been for Tom Cotton and his henchmen that followed him. I’m on a roll tonight, Now see, I spent an equal amount of time bashing the democrats in California, and I just bashed the republicans and I bet I get more criticism for bashing the republicans and they’ll forget all about that I bashed the democrats right before. I’m about public policy folks. And bad public policy deserves criticism, regardless of which party is, is promoting the bad public policy.
How about how far like how many? Did they just, you know, soften the blow of it? Do you happen to know any specifics of what got reduced from the first step Act that of things that would have been far more impactful?
I don’t we’d have to do an episode on that. I do know that the rigidity of the sentencing guidelines was relaxed. And the enhancement features were relaxed, but I don’t know all the details, but he was evidently able to come back and ask for a reconsideration. And he was able to show a lot of support from the community and the details of his crime and his youth. And the judge felt like this was enough time. So therefore, his his his time in incarceration has been reduced. But my bigger point is that I’m glad President Trump signed it. I’m not happy that the republicans in the United States Senate wrecked what would have been on even stronger improvement, better improvement at the last minute led by Tom Cotton. You folks in Arkansas dump Tom Cotton.
Arkansas. all right over at the appeal again cleaning supplies are so scarce at this Arizona prison detainees are using shampoos and menstrual pads, lawsuit says. this is deplorable Larry that you would have to like hey, I can either keep my body clean, or we can clean the dayroom This is how do we do this man? I’m laughing really out of disgust not really laughing.
So can we go right back to the first step Act there was one thing I’d like to qualfy. (Andy: Yeah, yeah, yeah, sure, sure, sure). the first step act now allows defense attorneys, I’m reading from the article, to argue that lengthy sentences don’t match the crimes and avenue that defendants like Angelo’s didn’t have before. His attorneys asked for his 55 year sentence to be reduced further. A motion that Campbell granted in February. federal prosecutor supposed the reduction and argued that Mamaw should spend at least 25 years of prison for what he had done. So so like I say, it’s it appears to be flexibility that the judges have gained that they did not previously. And then he showed an enormous amount of community support. So Okay, back to the….
And he’d already done 12 years. So I mean, you know, 12 is still a good chunk of time compared to you know, and,
yeah, it is. It is. I always believe that if you’re gonna learn anything from prison, you’re gonna learn it in a couple years. I don’t see. I don’t see the need for lengthy sentences.
Yeah, I understand. And so after a couple years if you I’ve said this before, too, that I never saw any hard kind of drugs until I was gone Larry. So if you wanted to keep me sort of, like innocent and and dough-eyed, I guess, I’ve never seen cocaine or meth or anything like that until I was in prison, which is a strange place to find it, I think. But, you know, so, there, that’s where I’ve seen hard drugs is in prison. There you go.
In the interest of time, in the interest of time, should we move on to Pennsylvania before we move this along.
We totally can. So we will we will skip all that fun stuff.
Did you really want to cover up the remaining ones?
No, no, no, no, I’m good. I just, I mean, we Okay, yeah, we can totally just bounce over to Pennsylvania.
So, okay. We’re gonna spend some time on this case. Also, it’s 58 pages.
Are you going to read all 58 pages to us?
Most of them Yes.
All right. Well, this comes from the Commonwealth court of Pennsylvania. And there’s like 700 judges that ruled on this thing. And this is please explain it because I don’t even I remember reading it. petitioner seeks mandamus and Declaratory relief against Pennsylvania State Police challenging as unconstitutional as applied. Larry, as soon as I read that my eyes roll in the back of my head, and I’m done. And I don’t know what else happened after that for the next 57 pages.
Well, we could spend a podcast on this and I think we’ve got Theresa in chat. I don’t know if she has the capacity to get on with us. But we do have Theresa in chat. But what this, what this case involves is the Pennsylvania court system. This is an appellate level tribunal. We looked that up before we went live. This is this is an appellate level court. So this case is precedential. It’s not the Supreme Court, but it’s the intermediate level review. But the the person who who brought this case, brought the case because his registration obligation arose from from something that happened in 1990. And at that time, there was no registration at all in Pennsylvania, or in most states, for that matter, except California and I think Washington came along in ’98, ‘99 in that area, but most of the states didn’t have a registry. And Pennsylvania has had five iterations of registration. They Had Megan’s Law One, two and three. And then they had SORNA. And then, after the Munez decision, striking the SORNA, which was their their version of the Adam Walsh Act that took effect in December 2012. Then they they passed act 29, which created a new SORNA to try to restore what had been declared unconstitutional. And this this guy brought in the reason why it’s the issue of first impression is because of all the decisions related to SORNA. None dealt with a person whose offense predated registration. That’s what makes this one so juicy. For me anyway, and for the legal people.
First impression means what?
they had not ruled on that issue, it had not been dealt with before. They had not dealt with anyone who had brought a claim challenging registration whose offense predated the registery. (Andy: Okay.) This guy’s did.
All right. And all right. So what happens of these 50 whatever pages that is so exciting to you?
Well, some of the stuff that I’ve said for years is beginning to make its way into these decisions. And I love it because people I know are listening to the Registry Matters podcast that are that are litigating. They’re listening to what we’re saying here.
Well, So we had a title. It was the last episode, I think of December reflecting back and the title is the building body of case law. (Larry: Yes). And this goes along with that, this ties into that.
This does but but the thing that’s so exciting to me is because they are recognizing, finally, that what you’re required to do is not merely providing the public with information that was already part of the conviction, which is what I have said for a long number of years, at least a good I think, since I was helping Maryland some years ago, I kept saying this is the registry If you look at what the US Supreme Court decided in the Connecticut Department public safety versus Doe, they said it was okay to have an internet, have the publication because they were merely redistributing information that was already public. I said, fine. Keep it to just the information that was already a part of the conviction and public. That’s what I said at that time, I have since evolved in my thinking, because now, the internet has become so prevalent, that merely just putting that information out to the world is problematic. But at the time, I said, You’re not just giving them the information that was a part of the crime and the conviction, you’re giving them a whole bunch of information that is not a part of the conviction, it continuously has to be updated. And that’s what’s in this decision That is so exciting to me, because the court recognizes that you’re not just requiring them… they have concluded that as applied to this challenger, And by inference, anyone who is in his situation whose crime predated any registration in Pennsylvania, that the registry as they attempted to recreate in act 29 is still unconstitutional. Now, what they didn’t say is that there’s no registration that you can do That’ll be unconstitutional. In fact, they said just the opposite. They said you could conceivably come up with a registery that would be constitutional, but this isn’t it.
And having something that you’ve said a number of times that you could have a constitutional registry.
you could. Pennsylvania if you want me to design you a constitutional registry, remit the standard fee into my account, and I will design you a constitutional registry. It’s not that hard to do. don’t require people to have any restraints on what they can do. don’t require them to come to a police station to be fingerprinted and photographed. Don’t impose any restrictions on where they can be physically present. And don’t put information out to the world that wasn’t a part of the conviction, you will probably be able to have that registry. And don’t require them to ever come see you again after they register, because that’s a disability or restraint. Just simply put their name in a database and tell them go on have a great life, you could get away with doing that. And you could possibly get away with doing a little bit more than that. But you can’t put people on probation supervision, which is what the arguments were compelling in this case, even though they peeled it back to once a year that people with act 29. They said, we’re going to reduce the universe of registerable offenses, and we’re going to take out some of the minor offenses, the misdemeanors and some of them are going to go away. And we’re not going to require them to come in but once a year, it’s still too much. And then they put all this stuff on the internet if you go through, I’ve highlight all the stuff that they put On the Internet of people, it started on page, I believe it’s Page Six here. all the information that they require, It goes way beyond anything related to your conviction.
Is it too early to bring up why there are I think seven judges signed on to this?
No but this is an appellate level decision. So when you have a case go on appeal there, they’re decided by more than one judge. So this is this. This is this is an appellate level court, not a trial court. When you’re in a trial court, you have one judge looking at you. (Andy: Right). When you’re in an appellate court, you have at least three judges. And then if you if you do what’s called en banc, where they have the full panel of all the judges that sit in that court, and I don’t know, this is clearly more than a three judge panel. This may be the full court, this may be the full appellate court and I think it is and that’s where we could get some clarification from from from Pennsylvania, but like in our Court of Appeals here in New Mexico, you get a three judge panel, we do exactly the same way they do in the federal system. When you go to the 10th. Circuit on appeal, you’re going to get three judges assigned on a panel at the US Court of Appeals. Well, you do the same thing here in our Court of Appeals, you get a three-judge panel. If you disagree with the three-judge panel, you can ask for full court review, which is seldom granted. Because if they started granting that what would happen with everybody who was not happy with their panel? (Andy: They would do what if they did what?) What would what if if they were more generous in granting full court review for people who weren’t happy with their panel decision? What would be the result of people who did like their panel decision? What would they do?
start removing judges?
No, they would file more appeals. And all of a sudden the full court would be convened all the time to do these en banc reviews. And they couldn’t do that they could not move the mountain of appeal cases that are under appeal without going off into panels. So therefore, when you ask for a full court View, you are not likely going to get it. Because if they say start granting full court review, then everybody would want full court review.
Yeah, sure. Okay. Um, I just wanted to, I wanted to clarify that it’s not a single judge, judging against an individual, that it’s a much larger panel, that is, what are the consequences of this? What is the impact that this has on the larger scope of things?
Well, anytime you’re in appellate court that that decision is precedential. Unless, unless it’s unless they designated it’s not if it but if they designate it as published a published opinion, this is precedential. So this, assuming that Pennsylvania doesn’t appeal, this would be a presidential decision that would take everyone who’s sex offense who predated registration, out of the zone of act 29, which is the most current iteration that’s enforced there. This would take all those people off. I know that caused hundreds of maybe thousands of people to hurl themselves off of buildings when I said that I thought that they would appeal. I think the good chance is they would appeal this. And I would have to have more information to to really come up what I think the odds are. But when you’re talking about closing the door on registration to a large number of people, if this only applied to one, but when you’re you’re talking about people disappearing, like what I said, in the wind, last week, I think when we were in private chat, I think the odds are way more in favor of they would ask the state Supreme Court to take a look at this. And I think the state Supreme Court probably would take a look at if they’re asked, and I think that they did such a spectacular job writing this, they would probably affirm the work that they’ve done below. But I just I would be very surprised if they don’t and I hope that they don’t. But I think the odds are that they will.
What does then this do for any other states?
Well, it has what it what all these decisions do when we are litigating we will shepardize this case and put it in the, in the cases that are that are on point. And we will like if I were to go to try to bring a challenge for people who have to register in our state now who’s whose criminality predated the registry. I would cite to this case, I would say, although this case isn’t binding in this state, there’s a very fine analysis of why this is punitive, as applied to people whose crime predated. They made it very clear that this person could have had no idea of what he was facing. There would have been no notice and they go through a brilliant ex post facto analysis that goes through the Kennedy Mendoza seven factors and they totally disregard two of them. They say that they’re not really relevant for the for the for the analysis, but they go through in great painstaking detail about how the disability restraints of What that is, and that goes through great detail about explaining what the internet does to people and how it has evolved into how it disables a person. And it’s just, so I would cite to it, and every other litigator would cite in this case, in particular, if the Supreme Court reviews it and affirms that, we would say, and the state Supreme Court in Pennsylvania, we would add this to our list, and it would be a compelling argument, although not binding.
And if the next state if New Mexico if Utah if Georgia, if they think it cases like this into court, do you think that they have a shot at having things like this, affirmed?
I do because the internet and the constant reporting in. I actually know a person who’s Well, I don’t think I want to disclose too many details, but I know a person whose crime was well in advance of our registry. And he’s stuck on this thing now because they post a harsh sentence and by the time he got out, we had gone through version one to version two, which requires lifetime registration every three months. He’s essentially on probation through the registry for the rest of his life with all the disabilities restraints, although we don’t have as many disability restraints as some states we have, nope, you can live in where you want to live here. If you can afford it, and they’ll rent to you, they’ll sell it to you can live in it where you want to, but he has all the information related to having to be at the registration office every 90 days. And, and and the information they disclose on the internet. And he would had no idea that this would ever when he was committing the act, he would have no idea that this was going to follow him after he did his time. So he thought he’d be done. Well, he would have been done except for the retroactive inclusion. So I’m going to approach people now that that that this case is out here and say, Hey, you know, we’ve got we’ve got a body of case law that’s expanded to include another state, where they have found that those who were required to register before a registry existed that the register History has existed as too punitive, it cannot be considered a civil regulatory scheme.
I keep having conversations with people talking about the civil regulatory scheme versus the punishment and you end up like a dog chasing its tail that Well, okay, so you have to do something very simple you have to take you know, you have to send updated address information, find something super benign. Okay, well, that’s great. And then the information gets published on the internet and then people egg your house. And then like the concept of disabilities and restraints of where you could live or not being able to maintain a job well then that moves into punishment, but it’s a civil regulatory scheme and if it’s punishment, then it’s ex post facto and it’s unconstitutional. Anyway, you end up in this like crazy loop that just never ends. And I find that to be an incredibly interesting type of conversation that as they keep throwing up, hey, well, we should have them do this. But that would possibly be punishment and that would be ex post facto see, like, anyway.
Well the only problem is the sex offenders aren’t there when these conversations are being held. (Andy: I understand). I mean, how many people have you sent up to Atlanta to be in the mix when they’ve been debating this stuff in the last few years? (Andy: Every day). And ff course, the reality is you don’t have the resources. No one can afford to pay to park no one can afford to lose the days of work no one can afford all the… because you have and 14 cents in your bank account. And I think I might be off by a little bit, but not much. And, and but but it’s,
But for real, even at those rates, though I mean, even if it were, you know, a day for parking, the bank account would get depleted, you know, in not a huge amount of time, if having to spend, how many days do you think someone would have to spend at the state capitol during that two ish month window of the legislative session? Is it an everyday thing? Is it a weekly thing?
Well, ideally, it would be an everyday thing because even though they’re not talking about this every day, you could be talking with people as you can grab them. Sure. So you want to network with people so if Georgia is in session 40 days, Ideally, you would have someone there for forty days. Now, we can’t even do that here. So we’re not there all 60 days so that ideally, we can’t do that. But don’t worry, it breaks down. In most cases, you don’t have the relationships. I’ve got text messaging at my disposal.
No, I get it. But what I’m trying to get if I don’t even think it’s a day, I don’t think we could put someone at the Capitol for a day in downtown Atlanta parking,
That’s what I’m trying to…
, that’s 400 bucks. You know, we could only support a handful of years if at our current volume.
but that’s what I’m trying to get at was when you build those relationships. So if you were there for 40 days, continuously, for 2021 and 2022. Then, theoretically, if these people get reelected, and you build relationships, you will have them in your text database, and you will be able to contact them without having to be at the capital, and you will have access to them as someone they respect and trust. But you have to start by being there a lot. You can’t establish Relationships by sending people an email. I know how much you guys believe in email, how much you love never having to go out in person and how wonderful the internet is. But you don’t build relationships that way. (Andy: I do). Well, they’re not very solid relationships if you do that, but but if you if you really want to be effective, you’ve got to know these people and to get to know them, you’re going to have to mingle with them.
You mean people like you?
sick people like me. Yes.
I’m not, man, I’m not on board now. I was with you up until that point, if it’s gonna be hanging out with people like negative
Well, on page 20. It’ll be worthwhile, I highlighted, there are traditionally four categories of laws that violate the prohibition on ex post facto laws, including laws that one, make criminal and punish actions that were innocent at the time they were committed before the law was passed. Two, aggravate a crime to something greater than it was at the time it was committed. Three, change the punishment and inflict a greater punishment than the law annexed to the crime. At the time it was committed or four alters the rules of evidence from that required at the time the crime was committed. Now, number four, something that the metoo movement just loves to do, which is to alter the rules of evidence. But in this, the previous factors are more important because what they’re doing is imposing all these things, that he would have never had to have any idea that he would be forced to deal with. And it was many many years and decades, in Act 29, decades after after he committed the offense.
Could you expand on that then please? (Larry: On what?) well on this number four alter the rules of evidence from that required at the time of the crime? Could this be like all that’s coming to my head right now it would be DNA, something new.
Well, I was harping about the metoo movement. they do not believe they do not believe that you should ever confront anyone that is too painful for a person who’s accused a person of a crime, it’s just too painful to have them actually be confronted. So therefore we have all the shield laws where we can’t actually do any, any heavy duty cross examination. Those are laws that are constantly being changed. The legislature is constantly being asked to alter the rules of evidence. Now in our state that don’t get very far with it because the Supreme Court says, the hell with you people, we decide what evidence we consider in our court and you don’t, but in states like Louisiana when we’ve had King Alexandra and he tells you that no matter what they do, they win in court, the legislature just comes back to change the rules of evidence, and the metoo movement just loves to change the rule of evidence because due process and evidence, it’s very inconvenient. It takes time, and it costs money. And it can be very uncomfortable for people who are being put on the hot seat about something they’ve alleged.
I was just I was just hoping to get something specific of an example of of rules of evidence that might be changed?
Well, I just I just did in terms of what the example of cross examination with rape shield laws. You can’t ask anybody anything. The cross examination we’re all but shut out of that. (Andy: Okay.) Because it’s too, your re victimizing the victim. (Andy: Yeah, sure. Okay). And that is a farce, our system is one of adversarial. Now all you people who believe that we should have this Kumbaya where we what do they call it, that Connecticut advocates for restorative justice? That’s nice. We don’t have that. We have an adversarial system in the United States. You have parties in controversy, and you have attorneys representing the parties in controversy. And the presumption starts out in a criminal setting, that the person who has been brought before the court is presumed to have no criminal culpability. All that was shown was it there was probable cause to get them to that state. And that’s that’s all that was shown is that there was probable cause. That person under our Constitution is not required to do anything. They’re not required to testify. They’re not required to do any rebut any rebuttal. But that’s not the way the victims advocates want it. They want you to be presumed guilty, and they want you not be able to cross examine their accuser because they’ve already been victimized by you to begin with, and how dare you be allowed to, to question what I have said or what was made in my statements to police. Why do I have to go through this, Your Honor?
What else did you highlight as important things?
Well, in 58 pages there are a lot of highlights a lot of highlights. (Andy: I imagine so.) it goes all throughout it Yeah, I think there’s some there’s some good ones in there only the clearest of proof may establish their laws punitive in effect and determinant under statute is a civil or punitive we must examine the laws entire statutory scheme. So I harp on that, because we have to prove, what a concept., The statute is presumed valid and we have to prove that. And they make that clear here, that the legislature gets the benefit of the doubt. And the legislature issued all these findings that drive us up the wall about recidivism. And they said that, although they’re conflicting information about recidivism, it is the right of the legislature to find anything they want to find. And that drives our people over the edge, they can find that the world is square if they want to. You don’t have to believe it. But they can issue a finding if they can get a majority of the people to vote for it to sign it, the finding can be that the earth is square. Right? They can find that, so that drives people crazy. It’s the legislature finds that sex offenders pose a risk of recidivism. They have the right to make that finding. If you don’t like that finding, ask the people who made the finding to retract that finding or remove them from office, but they have the right to find anything they want to find.
And it’s presumed constitutional when they write it and sign it. And then most of the time that our people are not at the table to even push back and say this is not true information.
That is correct. And and so they they afforded all the deference that they could to the legislature, but despite that, when they found that they did not intend to be punitive, and I think it’s kind of cute, they put in the law, that that, that the dissemination on the internet shall not be construed as punitive, that’s worth a bucket of warm spit. That’s like putting up a sign at your business establishment and saying that if you fall down in my store, it’s on you and then you leave banana peelings, and you can pull out all sorts of cooking oil. I mean, that’s the crazy thing, just because you say that that doesn’t make it punitive. that has no bearing, but they put in the statute that that issue should not be construed as punitive but that’s nice, but the courts construed it as punitive anyway because it’s not for you to Decide how something is construed. And I think that was cute also.
Yeah, that is I just found that in the document that is on page 11.
Oh, is that where it was?
I believe so. Yes. I mean, I looked for the word punitive and and it says the General Assembly intends the internet dissemination provision solely as a means of public protection that shall not be construed as punitive.
Well, that’s really nice. I appreciate you saying that. But you don’t get to decide how the court construes it.
Yeah. And that’s why we have the separations of powers. (Larry: Yes). Well, very well, Larry before we wrap it up anything else?
So Well, let’s see if Theresa has anything, can she be miked in her or she just listening or watching?
she is just listening and has not chimed in that she would like to.
Okay, well, then we know we learned a long time ago don’t ask anyone who wasn’t previously invited. So and now she’s typing. Do you like our patrons Larry?
Of course not.
You hate them. Okay. Well, great. You won’t thank them but I would like to thank our patrons I’d like to I’d like all of our listeners, but especially, definitely want to thank our patrons for being such ardent supporters of the podcast and helping continue to grow and share and like and support the podcast in general. Love it, love it love it,
and especially the ones that send us fudge.
You like that fudge thing, don’t you? That warm fudge that you got? That’s funny.
The next the next thing you need to do is in addition to making the fudge in addition to spending the money to ship the fudge, you need to put the tracking number and then you need to text me when the fudge is in my mailbox so I can get it out beforehand. That’s not asking too much is it?
probably not but they don’t always get tracking them to come by ups or Postal Service. (Larry: It was in the postal box.) Then it might not have had tracking information.
It had tracking. He knows when I got it so
okay. Well, very good, Larry Where can people find the podcast? (Larry: They can find it online.) Would that be the information superhighway that Al Gore created in the 80s? When did Al Gore create the internet?
That would be that would be registrymatters.co
And we didn’t get any voicemail this week but how could people if they were so inclined to leave a voicemail How would they do that?
they would either press the button or if you’re an older person and you have a rotary phone, you would dial (747)227-4477
Oh you’re thinking people should put us on speed dial.
No I’m thinking of the rotary phone where you actually spin the little dial of the rotary around until you get the numbers to dial all those numbers.
But you said push the button. You mean you mean like pressing the buttons that makes the two tones? Do you know about those two tones? Right? I’m assuming you know like, do you know about the frequencies?
Well, I do but what I was saying was most people don’t dial rotary but there might be a listener out there That’s as old as I am that they actually still have a rotary phone. (Andy: Do you actually have a rotary phone?) I sure do, I don’t use it, but I’ve got one.
That’s we need a picture of that. How about some email Larry? How can they email us?
That would be firstname.lastname@example.org.
And lastly, of course, the bestest, bestest way, my favorite way to support the podcast is over patreon.com/registrymatters. As little as month if you want to show your love for the podcast, it certainly goes a long way to showing that we, the value of the product that we are putting out. And so yeah, Patreon is a great place to support the podcast,
I understand that more than 80% of Americans have received their stimulus checks. So therefore,
You have no excuse. You are Terrible, terrible, Larry.
So, have you gotten yours?
Yes, it finally showed up after putting in some direct deposit information. I was hoping to get a check signed by the Donald. (Larry: But you didn’t?) but alas, Nope, nope, no sign check. I would take a picture of it and put that in a scrapbook somewhere. That’s all I got Larry, anything else that you want to before we depart?
Thank everyone again for, for listening. And for our YouTube subscription has gone over 200 I think 213 or something. Thank you we were trying so hard to make it to 100 when started the channel. And now we’re getting more views because of your lovely FYP studio and you’re live. And I don’t know how much of it because of my beautiful picture but we’re, we’re getting more views on YouTube.
I think you totally can because of your picture Larry I think it totally could because of that.
So, but anyways, thank you for everybody for supporting us in whatever way you can.
Thanks, everybody. Have a great night and we will talk to you soon. Take care. Bye bye