Listen to RM216: Deep Dive into California’s Registry Removal Process
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have problems with these thoughts, fyp.
Hey, everybody. Recording live from FYP studios, east and west, transmitting around the internet. This is episode 216 of Registry Matters. Geez, Larry, if gas were only $2.16, it would be amazing.
It would be, but it’s not going to be anytime soon.
Oh, my God, it’s not going to be. So I guess something I heard today… So this is Saturday night, March 5. And I heard someone say that, when you whatever you see at the pump is two or three weeks delayed back from whatever is happening in the market. So if gas prices roughly are $4 right now, it’s going to be a lot in two or three weeks.
I’m not quite that pessimistic that it’s going to be a tremendous amount higher. I think that this has largely run its course unless there’s a supply disruption. That changes everything. But right now it seems to be the supplies are still making it through. There’s no choke point. There’s nothing been choked in the in the Straits of Hormuz. There’s no concerted effort by OPEC to reduce production to drive up prices. And I haven’t heard anything about trying to quarantine or disable Russian production. And I don’t think any military power is going to be used to curtail their production. So right now, this is just mainly market jitteriness about what’s going on. But I think we’re gonna see elevated prices for some time to come. But folks, just remember, we’re still well below where we were in 2008. And if you inflation adjust those prices from 2008, then you’ll see that, you know, it’s uncomfortable because we got used to and complacent with cheap energy over the last half dozen or so years. But we’ve been much higher than this.
Oh, yeah, totally. Well, before we dive in, just so I don’t forget to do it, make sure that you press that like and subscribe button and upvote and share and do all of those things. So you can see- Where’d my little thingamajigger go? It’s supposed to put it up on the screen for me. There it is. You can click the like, and the subscribe buttons. Yay. All right. Tell me sir, what do we have going on this evening?
We have too much content for this evening. We’re going to be talking about the American Law Institute and their recommendations and their proposed modifications to their recommendations. We’re going to be taking some questions that, hopefully, all of our questions we take have impact beyond the person who submitted the questions as our general rule for questions. And we have a discussion that’s going to be in response to a comment about the removal from registration process in California. So we’re gonna do kind of a somewhat deep dive into that. And we have some articles that we might get time to talk about. And, of course, we have the next segment about not talking to the police and we have who’s that speaker. It’s just gonna be, it’s gonna be awesome.
Very good. Let’s start off with the the ALI. The American Law Institute has signed or something like that. They’ve signed the document, whatever, approving their new thing. So what’s all this hoopla about from the American Law Institute? What is ALI?
Well according to their website, the American Law Institute is the leading independent organization in the United States producing scholarly work to clarify, modernize, and otherwise improve the law. ALI drafts, discusses, revises and publishes restatements of the law, model codes, and principles of law that are enormously influential in the courts and legislatures as well as in the legal scholarship and education community.
What did they recommend this go around?
Well, I’m gonna actually just plagiarize from NARSOL’s website. ALI’s original recommendations centered around four areas that was limiting registration offenses to the more dangerous ones, providing registry access to law enforcement only, modifying registration terms and abolishing lifetime registration and registration of minors and abolishing blanket restrictions that curtail all registrants rights and freedoms.
Who opposed? In their own little structure, they had people that opposed it?
Now the opposition came from, once they put the recommendations out, after the after they had approved the recommendations, these were going to be things that would state legislatures would look at, but 37 attorneys general from across the United States and Territories wrote a letter, a joint letter and then various other arms of law enforcement, including the United States Department of Justice expressed alarm about these proposals and how they would make the community less safe.
Alright. So as I read the NARSOL article, the protest of those who oppose the changes altogether focused primarily on the first area, and it is there that the changes were made. ALI originally proposed only five offenses be eligible for registration, and they modified it to include 11. The issues as they were approved are given here and used with permission from the ACSOL website. The offenses include (1) sexual assault by aggravated physical force or restraint, (2) sexual assault by physical force, (3) sexual assault of an incapacitated person, (4) sexual assault of a vulnerable person, (5) aggravated offensive sexual contact, (6) sexual assault of some minors, (7) incestuous sexual assault of a minor, (8) exploitative sexual assault of a minor, (9) fondling some minors, (10) aggravated offensive sexual contact with a minor under 18 and actor is more than 5 years older and (11) sex trafficking. Wow, that’s a list. What happens next?
Well, as they expanded it in response to the pushback, due to the changes from the committee’s original draft, it will go back to the full membership of the ALI, or as I understand it, in their main meeting to be approved. And NARSOL still supports the recommendations. Now, I’m speaking as a board member of NARSOL. Because NARSOL views these as stepping stones toward the ultimate goal, which is to end registration. But the next step would be for the state legislatures to adopt these changes. But going from five to 11 offenses, they’ve brought broadened out the scope of what would be permissible for registration quite a bit. And particularly that number eight, exploitive sexual assault of a minor. That is pretty vague. So we’ve got it where the reduction to five core offences has now grown back to 11 as their revised recommendation. And I’m not as optimistic now that that people will feel the benefit if they were to be adopted by the states.
And so you said that this will then go back before the full panel? Do you think they will sign it?
Well, actually, there’s two steps in the process. It’ll go through the full ALI membership and then states like mine, legislative bodies. And the ALI panel will probably adopt it. But as far as legislative advocacy, it’s gonna be less likely because that’s not where the voters are. The tide on criminal justice reform has turned considerably after the pandemic. We have rising crime rates that are not able to be explained. And the answer to rising crime rates are always to be tougher. And therefore, I don’t think that you’re going to get a massive amount of states saying let’s just reduce the reach of our registry, even though this reach reduction in reach is far less than what they originally proposed. I’m even pessimistic that they’re going to do any reduction. I can’t think of a state that comes to mind that’s going to want to reduce the reach of their registry in the current political environment as it exists right now.
Backup. We talked about that 37 attorneys general across the United States weren’t supportive of this. In comparison, though, a DA has the power to act on the various crimes that are brought before it. But what is the teeth that the ALI has in imposing their will? I mean, like, what is their authority to to do anything about it?
Well, it’s merely a recommendation. They’re clout in their long-term existence of being a credible resource for legislative bodies and for courts. That’s all they have is their credibility in terms of knowledge and experience. But I asked a legislator off the record in preshow production how seriously those are considered here. And you can hit that button again, because here’s what he said.
So it means nothing to a legislator?
Well, it may vary from state to state. We’re a part time, kind of an outlier. There was a territorial governor that said one time- I think his name was Lew Wallace, if I remember. It was called the Curse of Lew Wallace. That everything that’s been tried and true that works everyplace else doesn’t work here. So we kind of do things our own way. A lot of stuff that other states do, we don’t do and we do things that other states don’t do. But if other legislatures have the same reaction he did, all the years I’ve been in the legislative body, I have not heard committee chairs, I have not heard them say, well, we’ve got to do this because ALI said so. But I’m only speaking for this one state. There may be others out there who are listening saying, Oh, well, I hear all the time when they’re debating changes to our Criminal Code, they heavily rely on ALI’s recommendations in terms of which direction they go. But it’s just not as significant of a factor here. He said they do think about it. They do review them. But it’s not something that they sell, we got to do this because the ALI recommended it.
I’m going to touch on this, and we’re going to kind of come back to this in the future. But if you went to your legislature with this information, saying, “Can we can we even like investigate doing something to make the registry less bad? Here are the recommendations of this highly respected counsel. Here’s something that you can then stand on to give you some backing that it’s not just you, Joe Smith legislator, saying we should roll these things back”? Does that give them some sort of cover?
Absolutely. I would rather have this in my hand that not. I would rather be going into door knocking, saying it’s time for us to consider changes having this well-respected entity’s recommendations, rather than just being my own personal opinion. So absolutely, these are good things to put in your toolbox.
All right. Is there anything else that you wanted to talk about on the ALI recommendations before we move on?
I think it’s the best I can do with the knowledge I have right now.
All right. Um, I got this. So I want to make sure that we are clear upfront that this is the opinion of one of our patrons. But we covered it, I don’t remember how long ago it was. If it was two or three weeks ago, we talked about the ACLU and I guess we talked about like the business model of it. And I’m not sure which episode it was. I didn’t go look this up. But one of our listeners wrote in framing from the question, are there any risks or pitfalls of a PFR donating money to a candidate? Does the opposition have that much time to run the donation list on the other person to find out that a PFR has donated $5 to the candidate? Pretty sure that’s what we said two or three or four weeks ago. And his response to all of that was, and again, this is his personal experience, because there’s probably going to be some things in here that are going to upset some folks. But anywho, regarding support for the ACLU, let me tell you my approach. I do pretty significant monthly and annual support to NARSOL because as a PFR, this is an issue near and dear to me. However, I also support the ACLU on a monthly basis, albeit to a much lesser degree. This is because they actually do some important work, even though they generally do not deem our issue sexy enough, hardy-har-har. I began supporting them monthly early in the Trump administration as it became clear that Trump was determined to trample civil rights generally. I believe it is important to support such an organization even though I don’t agree with everything they do. Specifically, I think they’re spending way too much time and effort on LGBTQ issues. This may be an important civil rights issue, but it’s tended to be mostly what we hear from them lately. They tend to focus on the really low hanging fruit, I think, to the exclusion of much more important issues. But then this is what gets tgem the big bucks. It’s important to keep them in perspective. Along with NARSOL and the ACLU, I also support monthly a number of other organizations local, national and international. Yes, I wish we had a brigade of lobbyists to work on PFR issues. But that is a real stretch, as you well know. Of the podcast, I do Patreon support for that as well. Small amount. Thank you very much for all of that information. Do you have any comments that you want to provide in all that?
I think he’s assessed it fairly accurately. I sometimes have some questions about the ACLU’s choice of priorities. But remember, they poll their membership extensively. Their membership is one of their fundamental sources, primary sources of revenue. And this is what they hear from their members in terms of where they want that organization to be. And he is correct, that community has a lot of money, and they carry a lot of economic clout. And that’s the lifeblood of any organization is recurring revenue, and that’s one component of their funding. They have membership, recurring revenue. They have donation, recurring revenue. They have their foundation, which generates revenue from return of investments, and they have successful litigation that pays them prevailing attorney fee awards. And they view most of our challenges to be longshot success, which means a lot of investment and no return. And then they see it as being counter to their other donor base because when they examine their donor base, they are not seeing and hearing a lot of clatter for do more for PFRs. They’re just not hearing it.
Absolutely. I assume that the NARSOL coffers are similar. So if someone- I’m not saying that they buy the position, but if someone gives a whole bunch of money, and they say they want to focus on this pet project, I assume that the decisions then sway in those directions.
To some degree, yes. You’re going to, if you’re running a business, I can’t think of a business that thumbs is nose at its revenue and says, we’ll do whatever the heck we please. That doesn’t seem to be a successful model. The answer would be if we were approached with a significant revenue stream that said focus more on this, and we will fund it, you would be amazed at how quickly we would analyze that and figure out a way to focus more on that.
Yeah, I totally get it. I totally, totally get it. And back to the low hanging fruit, why wouldn’t you go after things that give you the most bang for your buck? I remember- This is forever ago- It was a tech person. And he was running for governor, Tennessee or Kentucky. I can’t remember the specifics. And he had made like a chart of which ones would have the most impact, which issues would have the most impact. And when then which ones would cost them the most, obviously, then the other side of that which ones would cost the least. And he was trying to find the issues that would have the most impact and the cheapest to try and get as much done for the least amount of money. Like, well, that’s genius.
So, absolutely. Do you want to deal with the other part of this question about the donations before we skip off of it? (Andy: Yeah, sure. Sure. Sure.) Yeah. So I can’t speak for every state of course. I don’t know your campaign finance reporting information systems and how robust they are. I can only speak for this state. And we do have extensive campaign finance reporting required for state office holders. That would be state representative, state senator, Governor, Lieutenant Governor, Attorney General, and so forth; Secretary of State. And your opponent, their campaign team will do exactly what I’m saying. They will look at those reports. Now, if you’re in California, and you give $5 in a state that has 10s of millions of population, I’m not sure that that’s really going to rise, but it could. Because if they detect that that $5 is unequivocally connected to a PFR by the public records, they may use that. But it’s going to be based on how many donors you have, how much- if somebody in this state gives a $250 donation, $300, $500 donation, those are decent sized donations still, because our state representative districts comprise 30,000-something people. They’re not that huge in terms of population. So your donor list is not that long, and it doesn’t require the same amount of scrutiny. On the other hand, if you have somebody giving $50 to the Attorney General candidate in California, you’re gonna have 1000s and 1000s of donors. So it’s all going to be dependent upon the size of the campaign. But trust me, they will do that. They will attack based on who is supporting you. And it doesn’t have to be a PFR. It’ll be other things. They’ll attack based on it being you being in the pocket of special interest. The Liberals are supporting. The lefties are supporting, or they’ll say they’re the pocket of business. If you’re going after them, you’ll say just look at their campaign report. All their donations are from big oil, and from big pharma, and from whatever; from the gambling casino industry. This is the reality of politics, folks. I do not get to make the rules. I just simply sit here on Saturday afternoon, and I try as best I can to tell you the rules as I have learned them to exist. That’s all.
Oh, so like, at the national level, I always remember hearing that the average donation for Bernie Sanders was something like 26 bucks. For him to raise all the money that he would raise in the hundreds of millions of dollars, and the average being 26. I know that there are people donating just gobs of money and then somebody donating five bucks. The opposition goes and looks at every penny to see where it comes from?
I don’t take in a nationwide race, it would be the same thing. That’s what I’m saying here. You’ve got to look at the size of the race, and how many donors are going to be listed. And it’s proportional to the size of a race. A state representative race in Mexico, the campaign report may not have more than $26,000 of income on it. And that may be divided between 116 people that that money came from. That’s gonna be a lot easier for you to compare that to the PFR list. If you’re looking for an attorney general of Texas, there’s gonna be 1000s of donors.
And even down to even like your city council where hundreds of people vote, if that many.
Yes. So, but absolutely, you’re hit as a candidate by your opponent for whatever they can hit you for. Because they want the office and they don’t mind doing what it takes to get elected. Again, these are the rules that exist. I don’t get to make the rules. I get this hate mail saying, you make this stuff up. No, I’m not in a position to do that. I wish I possessed that type of power. I’m just telling you, it happens. Your opponent hits you with whatever they can find that they think that will peel off votes. If it’s a competitive race, you don’t need to peel off that many votes in a campaign where the margin of victory can be a small number. We have a city of New Mexico. Google the population of Roswell, New Mexico. The mayor’s race was just decided by 56 votes. The incumbent lost to a former state senator named Tim Jennings by 56 votes.
A hair shy of 50,000.
So that was 56,000-56,056 votes separated the winner versus the loser. If you’re running that campaign, and you’re mayor- I know both candidates, I know both of them. Dennis J. Kintigh served in the legislature. I had the unpleasant experience of trying to deal with Representative Kintigh. And, and it was a painful one. And Tim Jennings served in the State Senate. And Tim Jennings was a great guy to work with. He was conservative Democrat, which were not very welcome in the Democratic Party anymore. But he was moderate to conservative Democrat. Just the most gentlemanly guy you could ever meet. And he got beat some number of years back. And once you have that political, you just can’t let go of it. You know, if you’re in that arena of politics, it’s just in your blood. And so he runs for mayor. And if Ken could have found any way to have tied him to a PFR, he would have done it because he would prefer to have stayed in the mayor’s office. And when you have a 56-vote margin, how many votes do you have to change?
Well, half. Did you say 58 or 59?
I believe it was 56. You got to change 25 to 30 votes.
If you hit a person up for being pro-PFR, that can easily change that many voters’ minds.
Alright, so yeah, you only have to change something 50 Like voats, whatever. Um, I guess, I don’t think that I have anything else that we need to… one final question, I guess. Is there a way for you to donate money- I mean, can you give money to your mom and say, hey, can you give this money to the candidates for me?
The machinations of that are possible. I would advise you to be very cautious about that. Because at least in our state, that is actually against the law to channel money through another source. It is just theoretically possible. A person could do that.
All right. You guys are whiny. You want everything in chat. You want video. You want audio Good grief. Okay. Well, we’re gonna move right along then after all my technical problems of the same thing that happened last week. All right. So this is from the sex offender support subreddit that I keep trolling for information. And I saw something that I wanted to cover with you. Do I give up my constitutional rights by living with a PFR that is on probation? I’ve locked up all of the alcohol, taken the guns to my son’s house, put passwords on all the computer so my son actually doesn’t have access to them. The PO wants to know everything about the computers, every program that’s on them, along with all the licensing agreement, where I got it, when I got it. The things I just don’t have answers to partition. Serial numbers and so on and so on. These computers are owned by my business and my son has no access to them and never has. Am I opening myself up to having my business compromised by having my son live here? Will they come in here and just take them because they suspect something?
Yes and yes. On both. (Andy: Alright, so we’ll move right along?) Well, no, the first ones, No, you do not give up your constitutional rights. So it’s No, yes, and yes. You do not give up your constitutional rights. You have every constitutional right that you have before the person lived there with you. So they absolutely cannot force you to do anything. But there’s one thing they can do. They can say this residence is no longer approved. And what would that mean for the person who was living there?
So you don’t give them up, but you give them up by proxy if you want to continue to support the person you’re supporting.
That is correct you, but you do not surrender your constitutional rights. But he raises a good question, which I don’t think anybody can answer the question. It would all require a court challenge of some type to figure out if this is a reasonable thing. If these are business computers that are located in his home, and he’s taken precautions to preclude access by the PFR that the that the person has supervision of, it’s almost as if that should be challenged. But again, I can tell you what’s going to happen and I think you can too as well. If the PFR files the challenge, because I’m not sure this person has any standing to file challenges. That’s where they would need legal advice. I’m not sure that the standing would exist. It might. So it needs a competent, legal professional to analyze whether he has standing. But even if he does have standing, it’s gonna blow back down to the PFR. So he files a challenge. Their first retaliatory strike, they’re gonna say dismiss your lawsuit. We’ll just say he can’t live here anymore.
They’ll just immediately make the address an unapproved place to be because… I mean, like what would be the right wording to say that the address is a quote, unquote, approved place for them to live, but the inhabitants of the residents aren’t conducive to rehabilitation. I mean, is that the right way that maybe that would get worded?
That’s exactly what they would say. They would say that the address meets the proximity restrictions, if any exist. But the sponsors as they would refer to them are not appropriate, because they’re impeding their ability to supervise the offender. That’s what they would say. And that we are concerned about if this person under supervision may have access, and this is being used as a shield and the parents or whoever the sponsors are impeding our supervision. We need to know what they’re up to because our head’s gonna roll if this person does something naughty while they’re under our supervision. That’s what they’re gonna say.
So you’re just kind of screwed if you have to accept all of those conditions and whatnot. You have to submit to the to the system of the man, as it were.
I would recommend that, as hard as it’s going to be, [he should] seek a legal professional’s opinion about standing, and about whether this can be challenged. But again, it’s going to be somewhat dependent on what the circumstances of this person’s underlying offense that they’re being supervised for happens to have been. Because they may be able to articulate some very good reasons. For example, say that the PFR that they’re supervising did their original offence while they worked for a public school system on a computer that was at the workplace. They would argue, very credibly I might add, that we need to have access to any computer that this offender may have access to. We need to be able to monitor it. They would argue that. So there could be a circumstance where they could make a strong compelling showing that their position is very reasonable. So it’s all facts-specific. So he really needs to, he or she, needs to talk to a legal professional and see if they can find someone that at least can have a discussion about whether anything can be done. Make sure when you have that conversation, if the lawyer says let’s do it, make sure you have a backup plan for that place of residence because they are likely to retaliate.
Now there’s one state where they wouldn’t retaliate. And we’ve talked about that before, but all other states are fair game for retaliation, but there’s one. That would be Maryland.
Okay. Very good. Why not Maryland? (Larry: It’s a joke.) Okay. Because the resident there, right?
Yeah, it’s an internal joke about a Maryland being pure as the wind-driven snow, but they are hardly as pure as the wind-driven snow there.
Yes, I believe this. Alright. So this is a conversation that I have seen and I’ve heard other people just pushing around. They talk about statistics and what is the impact and all that stuff. So I was trying to like formulate all this into something that I could cogently express to you and then we could have a little bit of dialogue before we move on about the program. And in my mind when I hear, like super patron Mike who’s crime is like 700 years old, only had the tiniest little bit of his probation violation along the way. But then, with all the stuff that Florida has done, that appears to be something that sounds like disabilities and restraints, but it’s a civil regulatory scheme. And this is what I really want to focus on with this is the words disabilities and restraints and civil regulatory scheme, and that it is not supposed to be punishment. And you have brought up- never heard this before until we started doing the podcast- But can you describe to me what this Kennedy Mendoza Martinez thing is, and where does it come from?
It comes from a 1963 decision from the US Supreme Court. And that was the name of the case that was argued, I think, somewhere in February 1963. But it was it was a Supreme Court decision that was trying to determine whether something was regulatory, or whether it was punitive. And that case, became the guiding case law for future decisions like Smith versus Doe 40 years later in 2003. And so therefore, when they look at whether something is a civil regulatory scheme, the legislature can pass anything they want. And it’s presumed constitutional until someone challenges it. So they can pass something and call it a civil regulatory scheme even though it isn’t. They put that label on it. So the first thing under this test that was established in 1963 that the Supreme Court used again in 2003 when they examined the Alaska challenge, they said, This looks like the best test we can use is this 1963 precedent. And there were seven factors established. And those are called the Kennedy Mendoza Martinez Factors. And I don’t like to go through all of them, because some of them are just very confusing and they don’t tell you how to weight. They don’t tell a lower court how to weight those factors. But as I read the Smith versus Doe decision, I zeroed in on that “we find this constitutional because it doesn’t impose any disabilities or restraints.” I found that of the seven, since the Supreme Court didn’t say that they’re equally weighted, it said that the weighting is up to their lower court. So I found that to be the most persuasive. And in fact, most of the time, they drop a couple of those factors. They don’t even look at them because they don’t think they’re relevant for the analysis of sex offender registration. You know, the one about whether it only comes into play after finding of scienter. They don’t even weight that anymore. I think they should, but they don’t. So I zeroed in on the one that says disability and restraints, because the Alaska scheme did not impose any disabilities or restraints. So when you’re fighting something in court, and you’ve got a controlling precedent from the US Supreme Court when you’re when you’re litigating, if you have any hope for success, you have to be able to distinguish your case from the controlling case. So therefore, you’re going to look at what they said in Smith versus Doe. And you’re going to say, Hmm, they told us that they upheld this scheme that Alaska had because of… and they there were other reasons, but in my mind, the most important was it didn’t impose any disabilities or restraint. So then you begin to make a list of disabilities or restraints. And that becomes the focus of your challenge. And that’s what we have failed to do all these years. When we have focused on disabilities or restraints, we’ve had success much more than we’ve focused on other things like the frightening high recidivism, which was really largely irrelevant in this case. But everybody, including brilliant sholarly lawyers focused in on frightening high recidivism. That wasn’t why Smith versus Doe was decided the way it was.
The ones that I focus in on are there weren’t living restrictions, the internet wasn’t a thing. So even if their pictures were out there, there wasn’t much of an internet to speak of in 2003. And did they have to go to the police office to do the reporting? Because I mean, people in Alaska live 1000 miles from the nearest caribou.
So my recollection is that they sent it to them by mail in those days.
So if we were all living, all million-ish of us, if we were living under those sort of guidelines, I’m not saying nobody would bitch about it, but I don’t think anybody would bitch to nearly the same degree that these things would not be as nearly disabling and restraining as they are given the current climate.
That is correct. That was the point that the listener was making that was critical of me. And he thought that I didn’t understand that. That’s the point he was making. I understood it brilliantly. I mean, it’s a valid point. Those who were required to register, if all that they were required to do was to go register… and certainly, mailing would be the least restrictive, but even having to go in in person, if they weren’t revealed on the internet, I get that. Most people would live with it and accept it because it’s the internet that is so debilitating now. It did not go over my head. I got it, I truly do have it. But that’s why I responded the way I did, because I said, Well, yes. But you need to look at all these things that will put you in jail, as well. And when you decide that you prefer that, when all the vestiges left of your registration, if you’ve been able to exit registration, then you’re no longer required to do anything proactive, and you do not face any threat. But back to the point here. If the registry looked like it did in Alaska, there’d be very few protests from people who are required to comply with it. The reason why there’s the push back is because the apparatus has continued to expand both in the number of crimes that are eligible in requiring registration, to the amount of information that’s collected, to the frequency of reporting, to the prohibitions in terms of occupation, the prohibitions in terms of where you can live, the prohibitions in terms of your travel. All these things didn’t exist in 2003. So you would litigate distinguishing these things. And you would increase your odds of success if you focused on the disabilities and restraints. If you’d throw your recidivism in the dumpster and quit arguing about that, because that won’t decide the case. Because it just isn’t a compelling factor. Yes, you can argue it. You can do it. You can mention it. But I would not focus my case on how much recidivism there is, or there isn’t. Because that is not a factor for the courts to decide. You can have a regulatory scheme… take restaurant inspections. How many people get sick from restaurants?
Many. Not always, but many.
But in terms of total number of meals served versus people who get sick. (Andy: Super low.) Okay, so should we just continue having that regulatory scheme because only a few people get sick? That’s all subjective. So in formulation of public policy, we get to impose public policies on ourselves that may not be as effective in the results that are desired. Or in terms of the underlying reason, it may not be as justified. You could have a lot of people that would say that we spend too much money regulating restaurants, that we could better spend those resources someplace else. But those are decisions that the courts don’t get to make for us. We get to decide how robust our inspection regime is, what all we require of our restaurants, how frequently we will inspect them, how quickly we will close them down if they don’t comply and improve. We get to decide all that in the public policy arena. The courts don’t get to do that. But now the courts do get to come in to the restaurants if they deprive them of constitutional right without due process. So if they arbitrarily closed them down one day, and they don’t have any recourse or any way to get out of that, and they deprive them of their livelihood without any review process, then you get into takings challenge. You could argue that they’ve taken your business from you without any due process. But just because you don’t like something doesn’t make it unconstitutional.
Let me ask you about condition number two. It says whether it has historically been regarded as punishment. Can we flip that over that has historically not been deemed a punishment?
Never really thought about that whether it has historically been… But the literal interpretation that would be if you took the most conservative interpretation would be that since we didn’t have a registry back in colonial times- because remember the Constitution is to be interpreted by an originalist, words mean what they meant at that time. So since we didn’t have a registry, this would not have been something that’s historically been regarded as punishment. So therefore, we would not be able to make the argument. What you’d be trying to do with this component of Mendoza Martinez, you would be trying to say, look, clearly this is consistent with what we’ve historically regarded as punishment. We can’t make that argument because we have not historically had this. The same analogy would be the argument when people say I’ve been banished. Well, in colonial times, banishment meant when you were told to leave town and don’t come back. And they try to make the argument, well, I can’t live there. And if you take the most strict interpretation, which a lot of our audience says that there for, then you can’t get there from here because you’re not been banished. You can go spend all the money you want to in that town. You just can’t own a home or rent an apartment there, or work there.
Yes, you can do everything else you want to, but you can’t live or work here. Which is only the things that you would do for, what, 16 or 20 hours a day? But you can do everything else you want to.
But you have not been banished. So there are there are downsides to people who believe that they’re originalist and that they’re textualist and all this stuff. There are upsides to it as well. You’ve heard me on this podcast tell you, I have looked at this case and magically I’m a textualist here because it helps me win my case to be a textualist. Sometimes it doesn’t. Sometimes it undermines your case. Therefore, the point I’m trying to make to you is you cannot claim yourself to be one or the other. You are whatever it takes to win your argument. So when I need to be, I’m a textualist. And sometimes I say no, I’m not a textualist here. That’s not going to serve my strategy at all to be a textualist.
Gotcha. Okay, probably I’ve spent enough time there. So I have a feeling we will come back to this at some point in time because we could develop some kind of dialogue that we would have with our representatives and build up on this for people to possibly have some kind of script, or talking points that they can use to go talk to their people.
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But let’s move over to our Don’t Talk to the Police segment. And anything you want to do before we run it?
This is just part four or five. I’ve lost track. But we’re playing this from a Regent University professor. He’s a fast talker. So you may have to slow down your playback speed of this. But we want to give you a legal scholar’s reasons why you shouldn’t talk to the police, because just Larry and Andy saying it is not persuasive as it could be coming from a professor.
Very good. Alright, here we go. It’s a bit long, it’s a little bit over three minutes.
Regent Law Professor James Duane 43:15
You see, even if your client is innocent, and only tells the truth, and doesn’t tell them anything incriminating, and his statement is videotaped, his answers can be used to crucify him. You might say wait, how can that happen? I insisted, in my insistence. I called the police and I said, Look, you want to talk to my client, you can talk to him, but only if you videotape the whole thing. I don’t want there to be any debate between the two of you over what happened. Okay, we’ll videotape the whole thing. If the police don’t recall their questions with 100% accuracy, he’ll be convicted on that statement alone. For example, suppose a man goes to the police, they say we’re investigating a possible murder, a shooting. And the guy says quote, I don’t know who killed Jones, Officer Brooke, with all due respect. It wasn’t me. I’ve never touched or fired a gun in my life. How can that help incriminate this man? How could they possibly be used against this man to help convict him? You would think it’s inconceivable. But it’s as easy as pie. All the officer has to do is read the statement to the jury. And then the prosecutor says officer Brooke was there anything about that statement that confused you? Or surprised you? Yes, there was he says in a moment of sinister high drama in the courtroom. And what was that? And then obviously Brooke turns to the jurors. And he says, I never said anything about a shooting. I said we were investigating a murder. He was the one who brought up a gun. Then you turn to your client. Your client says that’s not true. That’s not true. I remember he was the one, or one of the cops. I was with them for three hours. One of them in the car said something about they said they had a witness that I was the shooter. Okay, I’ll put you on the stand. And then your client testifies? No, no, no, they did tell me shooting. They mentioned before I said anything about a gun. They brought it up first and then the police said that’s not true. And now it’s your word against theirs. For what? You’re gambling with your client’s life. And police officers can very easily make a mistake like that. Just as so many of you did just a few minutes ago about whether you recall having heard me say something about somebody actually being shot. Police make mistakes innocently, inadvertently, unintentionally. Any statement no matter how exculpatory it may seem on its face can be used to crucify you all by itself if the police are either willing to lie, not likely, or if they just have an innocent mis recollection of the details as to what they did and did not tell you before you told them what you said, all of these, by the way, all of these problems disappear. If you take justice Jackson’s advice and say, Thank you very much officer, but no thanks. How about this one? Here we go. Now, here’s the most surprising of all. I’ve saved the most surprising one for last. Let’s suppose you’ve got the following scenario. Your clients are thinking about talking to the police. He acts like he says, I’ve got nothing to hide. They think that I killed somebody in Virginia Beach last night. And this is what your client tells you in confidence. I don’t know who robbed that store. It wasn’t me. In fact, I’ve got a pretty good alibi. I wasn’t even in Virginia Beach last night. I was four hours away visiting my mother in the Outer Banks. Unfortunately, no, I did not pay for gas with a credit card. I used cash. And so I’ve got no witnesses that can prove I was there except my word. And of course, Mama, for what that’s worth, which is nothing. But so your client says the police want to talk to me and I want to seem cooperative. So what I’ll do is I’ll tell them that I was in the Outer Banks last night. Now. There’s nothing on its face incriminating about any of that. Let’s assume by the way that you believe with all your doubt. You’ve given your client a polygraph exam. You’ve known him for years, you’ve been going into the same Bible study for 30 years. You know beyond a shadow of a doubt that he’s telling you the truth. And he’s not admitting anything. He’s not admitting the motive. He’s not admitting opportunities, not admitting that he was there. How on earth could this come back to haunt us? How on earth could this come back to be used against us? Be honest, raise your hand if you really think the answer to that question is I can’t see how it could possibly be used against me. You’re afraid I’ll call on you. Right? I won’t call on you. Well, you’re wrong, you’re dead wrong. You’re always wrong. Everything you say. Every time you talk to the police, you will regret it.
I made it all the way through Larry, just because of that last little sentence. I could have clipped it out. But every time you talk to the police, you’re going to regret it.
I don’t know if I would go all the way to that extent. But the odds are, it’s not going to end well for you talking to the police. But take the Regent University professor whose name I’ve forgotten, take his word for it. And take Justice Jackson’s word for it.
His name is James Duane. So because they have the ability to record stuff and then use that against you, and just because when someone says slain, you’re going to automatically assume killed and you’re going to start filling in all kinds of gaps. You have now revealed that you may have extra information and if it happens to match, you’re doomed.
You can be, absolutely. People plug in facts that would fit because they think they know what the police are investigating. They may have even heard about on the news. And they start plugging in gaps. And they say, Oh, well, we haven’t released this to the public. Well, maybe you haven’t. But the news media, that won’t stop them from plugging their own gaps and how they report things. You just can’t win, folks. You just can’t win. Don’t take my word for it. You just can’t win.
Let’s move over to our something of a feature segment where we got a little bit of a beat down from someone when we were talking about, you said something about removal process from California and that no one’s going to get removed. And someone on Reddit called us out and said that… I’ll read what he said. So Larry is wrong about California. People are getting off easily. As of February 17, 143 petitions in San Diego alone have been filed. 69 have been granted. Only eight were denied by the judge for public safety and the rest are pending. 4 were denied because the person didn’t qualify. It’s not a scheme to satisfy the lawyers or victims. Stop saying that. Most people are doing this pro se. California has an exception to the categorical approach where a person who is a tier two with a high static 99 score, will be placed on tier three. Please correct these errors and stop providing wrong information. Victims are not involved at all in the removal process. So let’s go through this a bit. Mr. Larry, being wrong. How dare you.
Let me say that we always appreciate hearing from those who have accurate information. Because our desire here to FYP is to provide the most accurate information we actually can come across. And having said that. No human being can be 100% right all the time. But let’s go through what he said. And we’re taking his figures as accurate even though we have not independently verified them. His data is only from San Diego County, which cannot be construed to be indicative of the statewide removal rate and what it will be. If that if the rate of denials holds consistent in this county, it would mean 88% of petitions would be granted going forward. And assuming his figures are correct, only time will tell if that ratio holds. However, it does not really address my concerns.
And your concerns are about the process itself. Let me read from the law itself to illustrate your point. (1) A person who is required to register pursuant to Section 290 and who is a tier one or tier two offender may file a petition in the superior court in the county in which he or she is registered for termination from the sex offender registry at the expiration of his or her mandated minimum registration period, or if the person is required to register pursuant to Section 290.008, he or she may file the petition in juvenile court on or after his or her birthday following the expiration of the mandated minimum registration period. The petition shall contain proof of the person’s current registration as a sex offender. (2) The petition shall be served on the registering law enforcement agency and the district attorney in the county where the petition is filed and on the law enforcement agency and the district attorney of the county of conviction of a registerable offense if different than the county where the petition is filed. The registering law enforcement agency and the law enforcement agency of the county of conviction of a registerable offense if different than the county where the petition is filed shall, within 60 days of receipt of the petition, report to the district attorney and the superior or juvenile court in which the petition is filed regarding whether the person has met the requirements for termination pursuant to subdivision (e) of Section 290. If an offense which may require registration pursuant to Section 290.005 is identified by the registering law enforcement agency which has not previously been assessed by the Department of Justice, the registering law enforcement agency shall refer that conviction to the department for assessment and determination of whether the conviction changes the tier designation assigned by the department to the offender. What does that whole word salad mean?
Well, that was just helping me illustrate my point. I think they’re talking about the California Department of Justice, not the US Department of Justice. But I really don’t think I can explain this. And this is what I’m making my point about the complexity of the process. And again, folks, I never said in any podcast that anyone can show me that I’m not in favor of having a removal process. I am. If California had no process, and they have a process, now of course this is an improvement. I just expressed alarm about the complexity and other concerns I had about the process as I saw. Now, it went through revisions, as he pointed out. And it appears as though when I read what I thought was the final version, there were more changes to the final version. And what I thought was an absolute requirement to notify the victims is not in the final version, which has been chaptered. But as we get to later in our questioning, that, in my opinion, can still occur, but go ahead.
Alright, and also says, If the newly discovered offense changes the tier designation for that person, the department shall change the tier designation pursuant to subdivision (d) of Section 290 within three months of receipt of the request by the registering law enforcement agency and notify the registering law enforcement agency. If more time is required to obtain the documents needed to make the assessment, the department shall notify the registering law enforcement agency of the reason that an extension of time is necessary to complete the tier designation. The registering law enforcement agency shall report to the district attorney and the court that the department has requested an extension of time to determine the person’s tier designation based on the newly discovered offense, the reason for the request, and the estimated time needed to complete the tier designation. What does this mean?
I’m really unable to answer this either. I’m guessing, so folks, don’t hold me to this- It sounds like that if your designation would change, that you may have thought you were eligible when you filed the petition, but the California Department of Justice can say within the prescribed time limits that we’re changing your tier designation, which would render your application and your petition… it would not be grantable, but I’m not sure. And I’ve worked in law for 20 years. And that’s a part of what I’m trying to illustrate. If I can’t figure this out, I’m not sure the average pro se litigant can either. But maybe I’m just a dummy here, but keep going.
Alright, well I’m gonna pile on top of that. You are big, big, big dummy. Next it says, The district attorney in the county where the petition is filed may, within 60 days of receipt of the report from either the registering law enforcement agency, the law enforcement agency of the county of conviction of a registerable offense if different than the county where the petition is filed or the district attorney of the county of conviction of a registerable offense, request a hearing on the petition if the petitioner has not fulfilled the requirement described in subdivision (e) of Section 290, or if community safety would be significantly enhanced by the person’s continued registration. What does that mean?
My guess is that, again, don’t hold me to it, that It means that the district attorney may request a hearing if they believe that the person is ineligible for removal based on the change of tier designation. But again, that is only a guess. I have 20 years in this business. I’m certified as an expert in my state. Have been certified on more than one occasion as an expert. I can’t figure this out. So therefore, I’m assuming that I’m as at least as able as the average pro se litigant would be in this. So keep going.
All right. And then your bigger concern is with the next section, which I believe applies to those where there is no argument in terms of them being eligible to file a petition. It says, If the district attorney requests a hearing, he or she shall be entitled to present evidence regarding whether community safety would be significantly enhanced by requiring continued registration. What does that mean? What type of evidence is the DA permitted to proffer and which party bears the burden of proof? Ooh, this gets into- what’s the word I’m looking for? Oh, gosh, um… Due process.
And that is correct. This is where I was most concerned always about this. I don’t know what the standard of evidence is. You’d have to tell me. It’s not clear at all. But we’re assuming that this is where the person has met the 10 or the 20 years. But even though the person who submitted the comment is technically correct, there’s nothing in the law requiring victim notification, I’m giving you your kudos. You’re correct. There’s also nothing in the language that prohibits that either. If you read that, it says, if the district attorney requests a hearing, he or she shall be entitled to present evidence regarding whether the community safety would be significantly enhanced by requiring continued registration. That is broad enough that you could put a big truck through it. So if I’m the district attorney, and I don’t want you get off the registry, it would sound to me what that with that vague and innocuous standard, that you could bring in evidence including the victim, because it does not say that they can’t. So my guess is that it would become common practice, it will become common practice as this process rolls forward if there’s too many people getting off in a jurisdiction, and there becomes a public outcry that there will be more and more district attorneys who will decide, since they are not prohibited, that they will do that. That they will bring the victims into the process even though they’re not required to do so. That’s just my guess, though.
Also, it says In determining whether to order continued registration, the court shall consider: the nature and facts of the registerable offense; the age and number of victims; whether any victim was a stranger at the time of the offense (known to the offender for less than 24 hours); criminal and relevant noncriminal behavior before and after conviction for the registerable offense; the time period during which the person has not reoffended; successful completion, if any, of a Sex Offender Management Board-certified sex offender treatment program; and the person’s current risk of sexual or violent reoffense, including the person’s risk levels on SARATSO static, dynamic, and violence risk assessment instruments, if available. Wholly Majoly. You know, so I’ve had conversations with attorneys about they’re doing like a petition for removal, and they generate some 100 pages before the judge. It sounds like this is basically what you would have to do is present all this evidence to support them deregistering you.
Correct. But let’s just go back to what you read. The part that consent concerns me, when you started quoting… this is straight from the law, folks. We’ve got that available in the show notes. It starts in Section 12. But “in determining whether to order continuing registration, the court shall consider…” Look below there. “Any criminal and relevant non-criminal behavior before and after conviction.” That’s in the law, folks. Now, where would they get that information about- relevant criminal, that would come from law enforcement apparatus- but where would relevant non-criminal behavior come from? That would come from intelligence sources, right? Of people that are maybe snooping on you, providing information saying that they observed that you tend to have a lot of teenagers, there’s a lot of bicycles in your yard, and you’re 45 years old, and you’re not known to have any children. This is so vague that anything can practically be considered. These are my fears folks.
And then they also have where they say, Oh, we haven’t had enough time and they can kick the can down the road. There’s 16,000 people on the registry in Georgia that haven’t been leveled. So I mean, this is like, oh, sorry, we didn’t have enough time to do this. They could do the same thing there of we didn’t have enough time to do the investigation.
Correct. So to me this opens the door to consideration of almost anything, or any reason to continue registration because it also says, quote, any judicial determination made pursuant to this section may be heard and determined upon declarations, affidavits, which can be your neighbor, police reports, or any other evidence submitted by parties, which is reliable material and relevant End of quote. Now ‘parties.’ Now that seems to me to suggest victims. Does it not to you? I mean, it doesn’t say it directly. It doesn’t say it directly, but it says the parties. Which the state represents who? The state is representing who? The victims. So this suggests to me that the door has been open to any other evidence submitted by parties which is reliable, material and relevant. So a victim saying that I have concern about him disappearing from the registry, if I’m a prosecutor, I would argue that that is reliable because it was the victim. It is material and it is relevant. So that’s what my concerns are.
Um, do you think that this language is remotely similar to removal processes in other states?
No. This is way over the top of other states that I have examined like Georgia and Arkansas. This is this is the most vague. As far as protection for the offender, I can’t tell you. This has only been in operation since July 1, I believe, of 2021. And we’re just three months into 2022. So it’s too early for us to have a lot of data to tell how it’s going to work. And you’ve got a large, fast state of California with different counties, different levels of anxiety. I don’t know what Marin County is going to compare with San Diego and how San Diego is going to compare with San Francisco. I don’t know any of that. I truly don’t know. I’m delighted that California has a removal process, because prior to this law, there was no mechanism be removed. But having said that, the process as it exist is deeply, needlessly complicated. And it does in fact, create work for attorneys. And I fear that victims will be vocal in opposition, which will make some judges hesitant. And it’s truly tragic that many who lack the financial resources will never be able to benefit from this process. Because I do not believe the average person can handle this themselves.
Let me backtrack. Did you just say that this went into effect the beginning of this year?
It went into effect July 1 of 2021. So we’re like eight months into it. So we don’t really have enough data.
Okay. But there would also be people that have been on the registry for all of time that are exceptionally qualified for this. And once those, the first handful of rounds of people that are exceptionally qualified would get through, then you start moving into the third and fourth tier of people that would be less qualified. Those numbers would certainly come down when the low hanging fruit is exhausted.
That’s exactly my thought when I was doing the pre-show prep. I was thinking, well, you know, people are gonna look at these requirements, because California has done a good job putting out who’s eligible. And defense attorneys that want to represent people, they’ve done a good job. You can just Google removal and new attorneys will pop up galore. But once the people that are clearly have no doubt that that they are the low hanging fruit… And, then again, it’s gonna take a while for the other side to ramp up. Folks, I don’t make the rules. There are going to be a lot of counties that are not wanting these people to disappear from the registries. They’re going to be a lot of law enforcement that are not going to want these people disappearing from the registry. And there’s gonna be a lot of victims’ advocates who are not going to want these people disappearing from the registry because they’re going to say that their victim is having to suffer now not knowing the whereabouts of their perpetrator. So I have my fears, but I’m glad there’s the process. I prefer this over nothing.
Alrighty, sir. Let’s move over to closing the show out and we’re gonna go over to Who’s that Speaker? And last week, I played for you this.
Todd Akin 1:04:02
If it’s a legitimate rape. The female body has ways to try to shut that whole thing down.
Oh my God. This was so abhorrent that this guy would say this. I didn’t realize, I guess I kind of knew that he recently passed away and that is Todd Akin. And Brandon was the first one to write in. He wrote in before we even completed the show. Can you- like the mindset of a person to say that. Apparently he backtracked on all that, but I looked up the numbers, Larry, and he kind of got beat down in that next election. He was normally running like 60% approval, and then after that, he got 30% of the votes after that statement was made.
Yeah, he gave the Democratic incumbent another term that she ultimately lost after that, but yeah, he secured her reelection. Her name escapes me, but I’m really fond of her. Claire McCaskill, right? (Andy: Yeah. That’s what I thought it was.) Yeah. So yeah, she’s a commentator now and she dresses just fabulously. Her wardrobe selections are just gorgeous. Everything she wears is just awesome.
Oh, I wasn’t sure if you were being sarcastic or not.
No, no. She’s, I mean- she’s an older woman, but she dresses just… you know, I appreciate people who dress well. Men who dress well… I notice like, man, he coordinates, his colors are just perfect. And they fit awesome. And like she looks really good. I see a dress. It’s just really awesome.
So Larry is now a tailor. We’re gonna start a segment of Larry’s fashion tips for media personalities.
I know it when I see it, but I’m not good at doing it myself.
Okay, you’re the Supreme Court in identifying pornography. Alright, so then this week, if you know the answer to this one, then please write me. I hope, I hope this one’s obscure enough. But we’ll see. So write me over at email@example.com No hints.
Who’s that Speaker? 1:05:46
I’m not a witch. I’m nothing you’ve heard. I’m you. None of us are perfect. But none of us can be happy with what we see all around us.
Alright, so if you know who that is. Larry, do you know who that is?
I have no foggy idea who that is?
Seriously. Like, you don’t even recognize the commercial? (Larry: I don’t.) Oh, interesting. All right. Well, like I said, if you know who that is, then come on over an email me over at registrymatters cast. Hopefully I can stump somebody and- oh my god, you know, everybody. The person Al knows everything. Um, that’s all I have. Larry, we do have a new snail mail subscriber. You told me it is John from Texas. And anything you want to say to John?
Glad to have you, John. He subscribed to the NARSOL newsletter and us simultaneously. And I think it’s our first paper subscriber anywhere in Texas and Texas is a big part of our circulation for the newsletter. So perhaps this is the beginning of the FYP subscription base just surging in Texas.
Fantastic. I do want to make sure to point out that we have a handful of people in chat. And the people that are in chat are Patrons and I so very much appreciate every one of you that is here. And then also, please, if you appreciate the content that we are producing, please go over to patreon.com/registrymatters and subscribe even for a buck a month. That would be just fantabulous. It takes a lot of time and effort. And Larry’s the exceptionally valuable resource to analyze these different situations and dumb it down / explain it in a way that hopefully the rest of us can understand. Because someone even here, written in chat, says I never get headaches. The one exception being when I try to understand registry laws. But just reading legalese in general, that whole thing that I read, the whole reason that that’s gonna make your eyes roll in the back your head is because that’s legalese. And it’s very hard to understand it. And we need someone with the expertise to break it down. And that’s what Larry does. So I very much appreciate anybody that becomes a patron, and I thank you very much.
And also blast our algorithms. And same thing with YouTube. We’re trying to get that up to 1000. There’s a magic and we’re not even quite half there yet. So we got to increase that YouTube subscription. And that’s free. All you have to do is hit subscribe.
Yep, that it is. So anyway, find all of the show notes over at fypeducation.org. And of course, if you want to leave some voicemails (747)227-4477. And as I said, firstname.lastname@example.org to throw some email at me. And then patreon.com/registrymatters. And without anything else, Larry, I hope that you have a fantabulous rest of your weekend. And thank you everybody for coming into chat and we will talk to you soon.
See you next week.
Yep, very good, sir. Have a great night.
You’ve been listening to FYP.