Listen to RM222: Realistic Living While On Supervision
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Recording live from FYP Studios, east and west. Transmitting across the internet. This is episode 222 of Registry Matters. Good evening, Larry. How are you? Happy Saturday.
Awesome. Nice to join you. It’s a balmy 82 degrees here today.
It’s pretty warm. It’s like about 1,000,000% humidity, which you’re on the opposite end of the spectrum. We have had rain all day and it’s quite humid. And I’m happy about it. I like humidity. (Larry: You do?) Yes, I do. I have a very, very, very, very dry skin condition. And it just makes me happy.
Well, just for those who want to know, the current temperature, according to the National Weather Service is 81 degrees and clear skies, visibility is… well, they’re not showing that right now. But the humidity is 4%. And the winds are southwest at 60 miles an hour.
All right, then. Well, so now that we have the Registry Matters weather forecast, what is on the calendar for this evening?
Well, we have some questions from listeners and from people who subscribe to our transcripts. And we have a couple of cases to talk about. One is an initiation of a case that, for some reason, you’re obsessed about talking about from Idaho, then there’s a case of death penalty in Texas and we’re going to dive into the political ramifications. And we’re gonna have fun because this is the day before Easter as we record.
Okay. All right. Well, then do you have any problem with the order that I have put in place? Can I go over to question number one?
Let’s do it.
Cool. All right. So it says, “I have reached out on Reddit, and tried…” Sh*t. Don’t even make it 30 seconds in and problems begin. I will continue. “Hi, I reached out on Reddit and tried to find a lawyer to answer my question, but to no avail. I’m hoping you can help. I’m about to get off probation, and the registry in my current state of Colorado and I’m looking to move to North Carolina to be closer to family. My case was deferred and will be successfully discharged, at which point the charge will show as dismissed and I will be removed from the registry as well. I’ve never registered in any other state.” I don’t know, is that important? We’ll come back to that. I’ll ask you. “My lawyer here said I wouldn’t have to register anything if I moved once this was done. But I’d like to confirm this and also find out if my second amendment rights will be restored and if I’ll have the stamp on my passport or not. I’m half tempted to just trust my lawyer and move and worry about the possible consequences down the road. But I really don’t want to tempt that particular devil. I’m more than willing to pay for a lawyer’s time, but I need someone to actually talk to me. Any help, either in answering my question or pointing me towards a lawyer who can help me would be greatly appreciated. I love your podcast, and it’s made a huge difference while I’ve been dealing with… As always, FYP.”
Awesome series of questions. Boy, which one do we take? I think the easiest one would be about stamping of the passport. Now we take everything that people send to us at face value. Everything you say is true. Having said that, he said that his lawyer tells him that he will be off the registry in Colorado. I am not familiar with that process where you leave the registry upon the discharge of your sentence. But we’re assuming that’s true for the sake of the answer. If that is true, then your passport will not be stamped, because my understanding is that it’s only people who are actively registered. So if you apply for a passport and you’re not on the registry, as your lawyer has told you you will not be, then I can’t see how they would stamp your passport unless they change the policy at the federal level in terms of marking passports. So that one was fairly easy, but it assumes what his lawyer told him is correct. So do you want to move on to the other parts of the question?
Yes, please. I mean, can we just dive right on that part where it says I’ve never registered in any other state? Does that matter?
It would matter. It would not create a registration obligation, necessarily, but it could.
Let’s just say the state says if you’ve ever had to register in another state, and this individual went to Florida, than they would have to register where they go.
That’s correct. I’ve told the story through our 200 episodes of the person who never had to register In the state of conviction of Wisconsin, and they moved to Nevada, and then they had to apply through the process to have a background check to be in the gaming industry. And Nevada said, you’re welcome to have a gaming card, but you have to register, because you have this conviction from Wisconsin. And as he lived and worked in the gaming industry, life on the registry was not as favorable as he had hoped. He decided to go back to Wisconsin. And although, had he never left Wisconsin, he would never have had to register there because his conviction predated, they had a new onset there a law that says if you’re moving here from a state where you have to register, you have to register here. So that type of situation is how it could come into play.
All right, then. Okay, so then let’s move on to the other aspects of this.
So in terms of his lawyer’s advice, I’m not going to knock the lawyer, and I don’t get the opportunity to knock the lawyer because I don’t know the attorney’s name. But I can tell you that I’m not very pleased with that advice, because that lawyer is just flat out dead wrong. Colorado cannot relieve you from any other states’ registration obligations, they can only relieve you from Colorado’s obligation. So therefore, if whatever type of sentence you received in Colorado would be registerable under another state’s law and statutory scheme, the fact that Colorado says you don’t have to register here is of no relevance. So the lawyer is just flat out wrong that says you won’t have to register anywhere.
Do you think that’s just a function of, generally speaking, that lawyers are- they’re arrogant, generally speaking. But just like, I’m going to tell them what they want to hear, and just ignorant about these processes in general, because it’s kind of nuanced and esoteric for the registry stuff?
I would agree with that, since I was the training aid for the Office of the Public Defender for the Criminal Defense Lawyer’s Association for a number of years. I’m not any longer. I was surprised how little attorneys do. So I would be shocked if this attorney knew very much about the registry. They know it exists. And this attorney may know a lot more than the average attorney. But again, when an attorney tells you that when you leave my state, you don’t have to register anywhere, that is just flat out not true. Because that state doesn’t control whether or not you have to register somewhere else. Now we get to the next issue. How will North Carolina know you’re there? If you’re not coming as a registered person, you will not need to be handed off to North Carolina. So there’s a number of ways that they could know. You could have a disgruntled person in Colorado that is out to get you. And they could track your movements, because everybody sees the need to put everything on social media that they’re doing. So they could notify the authorities who could pay you a visit and say, Gee, we’d like for you to come check in with our registration office. You could apply for some type of license that would require a background check. I mean, it could be as simple as a driver’s license. But I don’t think most states run background checks, other than your driving record to issue a license. They want to ascertain if you’re under suspension, or if you’ve been revoked in another state. But I don’t think that as a general practice they run the full gamut of your criminal history. But they could discover it that way. Or you could do what the guy did in Alabama. You could go into the registration office. And you could say, Hey, I have this situation in Colorado, which is the exact state he had his offense in in ’89, and you could ask them, and they would probably say, welcome to the North Carolina registry, I’m betting. But probably the safest thing to do would be to let me think about who he should be referred to and see if we can refer him to a practitioner in North Carolina that might be helpful to answer those questions of whether his particular type of situation would be one that would require registration before he goes to North Carolina.
Would you noodle around with that for a moment? Hypothetically, we’ll assume that he is no longer required to register in Colorado and shows up in North Carolina, or pick any other state. What would be the mechanism for them to find out that you are supposed to register? I mean, be the most aggressive thinking about this that you could possibly come up with. I don’t imagine that a traffic stop would flag this, I don’t think.
It could very easily could. Some of the scenarios I just went through with would be a trigger of the vindictive person in Colorado or applying for a license of some type. Remember, we just talked about the one in Nevada that applied for his gaming card that triggered a background check. Getting pulled over depending on the policy of the of the agency that does the traffic stop, they may run a criminal history on everyone. Remember, all those cars are now computerized with the NCIC and they can run a fairly detailed check on you in a very brief amount of time. So it could very easily reveal a criminal history. And then there’s also the radiation that’s spewing from every person’s pores, you know. You got to take that into consideration because that’s what attracts the hovercraft.
Yeah, well, somebody that lives in Florida says Florida has a new machine that can scan your brain upon entering the state, it knows if you might ever commit a crime and will make you register for life. So stay away.
So we’re joking about the radiation, but people do have that fear that they’re being monitored more closely than what they are. They’re being monitored oftentimes very closely. But they have an elevated level of importance that they think that they have a 24-hour security detail watching them, and you’d be the most unusual person if they’ve got that kind of resources to allocate to you. Now, what they generally do is they do things that are much more subtle. They will ask neighbors to keep tabs for them. That’s not unlawful. They’ll go talk to a neighbor and say, “This guy is on our list of people we’re kind of a little concerned about. And would you call this number?” And they’ll give them their cell phone number. And in some more egregious cases, they’ll put a tracking device surreptitiously on your vehicle. And that will tell them a lot about where you’re going and whether you’re breaking the rules in terms of where you say you’re living versus where your car’s parked every night. And there will be people out there, there’s even an attorney in North Carolina that says, Larry, that would be unlawful. Yes, I understand it would be unlawful. But when did being unlawful prevent something from being done? It would be inadmissible in court. But what they would do, if they found that you were living someplace else, is they would begin an investigation. They would say that they’ve received an anonymous tip from a concerned citizen that you might not be living where you say you are. And that upon investigation of that anonymous tip, they discovered that you were living in another address. That’s what they would do. They would not put in the affidavit for the arrest warrant that they put a surreptitious GPS tracking device on your vehicle. What kind of nut would do that?
Right. I gotcha. What a mess. Okay. Are we done with this? (Larry: I think so.) And so we will reply to this individual and try to provide them some resources for them to contact an attorney in the North Carolina place?
I think that’s a great idea.
Cool. And I will say, we are on Reddit and the support channel that’s over there. I don’t pay a lot of attention- I pay attention to it on my personal account, but I don’t pay attention to it very much with the Registry Matters account. So please, if you happen to hear this and you’re over there, just email me instead. I just don’t check that often over there. But it’s a great place to stay in touch, but I just don’t have a lot of bandwidth to check that channel over there. Cool. All right then. So we will start back over. It says, “Comment. I’m reaching out on behalf of your listeners at JFRC, Fort Leavenworth, Kansas whose letter you read in this episode. He asked me to answer your question for clarification about MSR, which is mandatory supervised release conditions versus parole. The difference between the two is an individual is eligible for parole after serving 1/3 or more of their sentence. While an individual released on MSR is released when they have served through to their minimum release date and have submitted an acceptable release plan. Failure to provide an acceptable release plan could require the individual to serve their full sentence in confinement. MSR, mandatory supervised release, is very similar to parole. Individuals released on MSR must adhere to the conditions of release and are under the direct supervision of a parole/probation officer. Individuals released via MSR remain under supervision and must abide by all conditions of release for the full length of their sentence unless a portion of the sentence has been remitted by the board. After successful completion of MSR, individuals are released from supervision and have fully served their sentence. An individual who violates the conditions of MSR is subject to sanctions for misbehavior that range from warnings to revocation of MSR and return to military confinement,” which as I understand it, Larry, is no cakewalk.
Yeah, this person, we have a huge following over in Fort Leavenworth in the various facilities. There’s a couple over there. And we appreciate that following. I’m still not clear, and I understood all this. The system they have is modeled after the federal system as it existed prior to 1984 when the sentencing reform act was passed when they abolished parole in the federal system. Prior to that you were eligible for parole after serving 1/3 of the sentence. But what I’m a little less clear on is when he says that, “when you reach your MSR date, how much of your sentence must you serve before you reach that date?” I’m still not clear on that. So, they’re teaching us about something that we really don’t know much about here, because what my area of professional practice has been has not had anything to do with military convictions. But I got the part you got to serve 1/3 to be eligible for parole. But what is your MSR date? How much of your sentence do you serve before that date arrives?
Okay, I gotcha. So we still need a little bit more clarification on some specifics.
Yeah. I really do appreciate the education because this is helpful.
Ah, gosh, I can’t even imagine. I can’t even imagine getting time while serving in the military. I just think that that would really, really, really suck bad.
Well, there’s a lot of it being handed out. There is a lot of it being handed out because they’re being very aggressive on the investigations of the slightest sexual impropriety. And there was a lot of folks that probably don’t deserve the amount of time or even the convictions, because it’s, I mean, it’s difficult right now. The political climate is, you better find something wrong here if there’s an accusation that translates to someone needs to go down. And I may be over overstating it a little bit, but I don’t think I’m overstating it by much.
I gotcha. Okay. Then let us continue to move along. And I found this on the NARSOL social website, and there was an article posted from NARSOL that was written about, I think we just talked about the Josh Hawley bill, the Protect act of 2022, something like that. Didn’t we cover that last week or the week before? (Larry: We did. Yes.) Okay. So a thread got started. And I feel that you’re going to agree with the statement. But, anyway, I just wanted to highlight that this was going on. This was a conversation and just get some feedback from you. It says, “It prompted the conversation on NARSOL social. One individual wrote, and I wanted to highlight it, as it seems very relevant to our plight. I think that this is the most important statement, says the writer, the next time a candidate seeking office or seeking reelection promises to do everything possible to assure that more criminals get longer prison sentences, listen to them. If a registrant is conservative and votes for these conservatives, they are essentially signing away their opportunity of registration reform, then complain that reform is not happening. If you don’t want to be shot in the foot, don’t be the one shooting yourself in the foot. Stop voting for the people who are oppressing us.” I think you’re going to disagree vehemently.
You’re correct that I generally agree with that. The first part of that comes from the article that NARSOL posted, where we said take them seriously if they tell you that. If that does not appeal to you when they’re campaigning on that platform, communicate that to them. And then the best thing to do is to vote in the alternative if you have another choice, and you probably do or they wouldn’t be communicating that particular message. But in terms of the conservative votes for the conservatives that are essentially signing away the opportunity at registration reform, you know, I hate to say that, but unfortunately, you’re not going to get a lot of registration reform until we convince the conservatives that it’s okay. That all life as we know it will not end because that, as you watched with the confirmation hearings that we talked about multiple episodes, that is something that they have decided is a vote-getter. To be opposed to anything that lessens the penalties, they have decided that that’s where the constituents are. The only way to change that is to prove them wrong. That is not where the constituents are. And you can only do that by how you cast your vote.
Totally, totally. Um, what do you think would be required of us? And I’ll say “us” as in all of the advocates, to get conservatives to jump on board with less “put the put the screws to them and give them maximum sentences.” Why is that so much on their platform to make it the most awful?
Well, I would say to follow the lead of the LGBTQ+ committee. I think that’s the latest political correct thing is you just say, plus, rather than adding all those extra letters. But they figured out how to convince everyday Americans that “we’re okay.” If we can figure out how they did that, that’s a big step. There’s a slight difference though. They convinced everyone that people were born that way. And I’m not getting into that debate at all, whether they or whether they choose. But they convinced a significant number of the population that it is not a choice. And they prevailed with that. I’m not sure we’re going to have an easy time to convince people that you were born to be an offender, in particular, a PFR-type of offender. So we start at a disadvantage. But what we can convince people of is that everyone does not offend a second time. That precious recidivism that people are so obsessed about talking about, which I flatly reject in terms of the constitutional arguments for the registry, that is a great time to bring that issue up into play so that people understand that you do not need these excessively long sentences. People do not recidivate. You can have a safe community, and we can do all the above. And how to do that, if we could figure that out, wow. We would be we will be so successful.
All right. And that was also like my little backhanded way to plug NARSOL social. That was my ulterior objective there as well. If you’re not, you should be there at social.NARSOL.org. Sign up and welcome to the club. Because our people can’t be on social networking sites very frequently. And this is a place for you to be where, unless you’re a terribly terrible bad person, you won’t be kicked off of there. Alright, moving right along. Can I ask you my battery of questions about realistic views of being on supervision?
I guess so.
All right. I will try to communicate all of this to you. So I was having a conversation with someone that lives nearby, a couple counties over. And I mean, I don’t know the conditions of the charges. So I can’t really speak to any of this. But I do have experience with how supervision works in Georgia. And the way that this person, I’m naming this person Steven, is, like, petrified to walk out the door and go to the mailbox, almost. And I think that’s just ridiculous. I get the PTSD side of all these restrictions and what people are living under. But at the same time, what I’m trying to do is if you being inside of a box, inside of four walls is probation, how close can you get to those walls before you get electrocuted, and realistically end up violating, like my friend did, and getting a couple of years for doing the wrong things that were explicitly stated? So what I want to ask you, Larry, is, I’m encouraging this person to go live, you can go out to eat, go to movies, under certain circumstances, and so forth… But like, so how close to the walls of these conditions can you live? And so, let’s start with your state. So while on probation, you can’t move around the state just freely, you can only move around the county, is that right?
That is correct. You cannot leave the county of your supervision without a permit. Now, sometimes you get verbal permission if it’s for a brief incursion into a surrounding adjoining county. But as a general rule, if you’re going to travel outside your county of supervision, you’d need a permit to do that.
And as it is in any state, you could live near enough to throw a stone to the other state. Suppose you live in the edge of your county and your parents live just 20 feet inside the next county- I mean, this could even be split by neighborhoods. Can you just willy-nilly go visit your parents or every time you got to say, hey, PO, can I go visit my parents?
That’s just situation usually is remedied by the probation officer giving you a standing permission if you’re going to be visiting a regular place that’s slightly into the county. But therein lies the problem. Because the probation officer may say, Yeah, I’ll give you verbal permission. But when they have the need to violate you at some point down the road, you don’t have that permission. All you have is their verbal saying, Yeah, it’s fine to go over there. So therein lies the problem. But as a general rule, my experiences have taught me through many years of working in the system that most of the time when they target you, it’s because they have a reason to. That doesn’t mean every time they target you. But when they target you usually it’s because they’ve decided from your behavior that you are a higher risk individual. And they can decide that wrongfully. To us, it would seem wrong. But those who don’t have a fixed work schedule, for example, you’re gonna get higher scrutiny. You are, because they don’t know where you are when their supervisor says, “Where is Andy? It’s two o’clock in the afternoon.” “I don’t really know.” “What do you mean you don’t know? You don’t know his work schedule?” “Well, he doesn’t have a set work schedule.” So that type of situation will get you higher scrutiny. You may not get the permission that a person who has a fixed work schedule, where they can be confident where they are, and they can put their hand on them at any time. They might be told, yeah, you can just go to the next county visit your parents, that’s the only place you can go. But as long as you’re taking the most direct route to visit with your parents, you can do that.
So similar to that, though, a friend of mine here in this state, he is a truck driver. And while he was on supervision, he had some sort of standing travel pass, whatever, that granted him permission to go to the four or five states immediately around here that he could go to any. He would just go renew this thing every month or so. But that gave him the permission to be in those states, specifically while working. Right?
Right. I have heard of that before. I don’t think I’ve seen it done here. But I’ve heard of that in other jurisdictions.
And so, let’s see. So in in Georgia, again, there’s no, at least by my reading of the terms of probation, you could go to from the northwest corner down to the southeast corner. It’s about an eight- or nine-hour drive to do this. And as long as I met my curfew, I would go visit friends, you know, on the north side of Atlanta or whatever. I didn’t ask permission, because there were no restrictions to do this. And as long as I was home by the time of my curfew, I didn’t think that I was putting myself in jeopardy. Would you advise me as Uncle Larry, do you think that that’s okay to do? Or was I tempting the bad people to do bad things to me?
Well, you were sort of because of the ambiguity. You’ve got special conditions that can kick in, even though you didn’t have a travel restriction, per se. You could travel all 159 counties. But within that traveling, depending on where you were, if your travel and your proximity could be interpreted to be a violation of either your special conditions or any statute that prohibits you from being at those places, and then they’ve got the loitering, which is, I think, a little bit vague… So yes, you could have been putting yourself in jeopardy by going to a place where you were in proximity of children. And that would be in your special conditions. Don’t be in unsupervised contact with children. Most PFRs have some sort of condition similar that.
I totally agree so. So by extension, one of the special conditions of probation is you can’t loiter where children are known to congregate. Loiter, to me is a vague term. Does that mean you’re someplace without really a specific purpose? If you’re at Walmart, just like browsing the shelves, you don’t necessarily have an intent to purchase something unless something shows up on your radio, like, “I need that thing.” So but like at Walmart, there’s this huge toy aisle, I would say that it’s a really bad idea to go hang out on that toy aisle or near it or the children’s clothing area, too, right?
I would agree with that. Loitering is very vague. And it’s really, when you’re on supervision, it’s almost what the PO wants it to be. And you’re gonna have to fight that in front of your sentencing judge.
And so, again, like, so what are your thoughts on going to places like, if there were a Sunday afternoon concert in the park, this is a public place, your taxes are paying for it, there are no restrictions against it, and what I’m saying is like you put down your blanket, and you put it back in some crazy corner where nobody’s going to be around and you have not interacted where children are. Do you think that this is like an okay strategy?
Generally speaking, yes. Generally speaking, yes. It’s okay. I mean, I hear people calling their PO for stuff that I could never imagine calling their PO for. And then they get rejected when they call the PO which if they had just done it, nothing would have ever happened. But then if something did happen, then the penalty could be significant, including going to prison. But unless they’re out to get you… They can be out to get you for a number of reasons. Say you got a probated sentence. know that you guys don’t believe that happens. But people do get a probated sentence, and don’t go to prison. And the probation people felt like that their recommendation for imprisonment was ignored, they could be out to get you simply because their recommendation was not accepted by the court. And they’re gonna prove to the court that they were right. You could be doing everything right, and they’re still looking to violate you. Now, I’m hoping that those situations don’t happen very often because if I’m a PO, I’m only looking at from my own selfish point of view. If I’ve got a person who one of my colleagues recommended that they get imprisonment, and they’re being an ideal probationer doing everything that I want them to do, the last thing I want to do is to trade that for another client that does absolutely none of the things that they are supposed to do. So wouldn’t you want to supervise the person that’s doing everything that they’re supposed to be doing?
Right. And so wouldn’t that go to if- So like the day you walk out, the PO doesn’t know you. And you have to build some sort of rapport / reputation as being someone that they don’t have to quote unquote worry about. But so if you become that person, then you can push the boundaries to some degree. When you first get out, they’re going to like, really come by your place many times a week, potentially, just to make sure that they know what the pattern is. And then eventually, like, Yeah, whatever, we know where they’re at. I know that that could come bite you because now they need to find you and you’ve decided to push that limit. I know that there’s all kinds of gray area and murky that we’re going through here. But once you have established some level of rapport with them, then maybe there’s some grace, some of some buffer in there as to what you could get away with.
I agree. But remember, do not make your probation officer have to do work. That’s rule number one. I mean more than the work that they have to do. Do not create work for them. And do not put your probation officer in an embarrassing position. Because the person who will pay the consequences for that bad judgment on your part will not be the probation officer per se, they might get yelled at saying why was Andy at this particular event? The video shows, surveillance videos and everything is public these days, shows that there was dozens if not hundreds of children. Why was he there? Do not put your probation officer in a position where they’re going to get called on the carpet to explain your behavior and your poor decision making choices. If you do that, you’re largely going to be okay.
I think I agree. And a person in chat says, “Larry’s exactly right. Annoying them is more dangerous than breaking the rules.” I can agree with that one. And then I guess just to close it out, it’s not even so much a question. But it says, “My strategy, I would explicitly avoid any contact or interaction with children. This way, when dealing with the monthly questionnaire from probation, they would ask if I’ve had contact with children, I can easily say no, because I actually hadn’t. They would ask if I have abided by conditions and terms, blah, blah, blah, and I met my curfew. And I didn’t leave the state, I obey traffic laws, I made sure that I didn’t get have contact with police or children or anything like that, even though when I would go to the beach, they might be just over there. But I effectively ignored them. So that I wouldn’t be doing anything where I was lying when trying to do their little monthly questionnaire.”
Absolutely. And just remember, folks, everything you do when you’re in public nowadays is being monitored on some level. It’s not like the 1970s. Everybody has video surveillance running everywhere. Streets, stores, restaurants, you name it, you’re being monitored. You can turn up on someone’s video that you have no idea is being captured. And your PO may get that video and it’s not going to be funny to them if you’re in a position that’s going to cause them grief. Because if that video goes to their supervisor, and you’re doing something that’s causing them grief, that grief is going to flow back to you.
Very good. Um, all right. So I think we we’ve covered that fairly well. And I hope that helps anybody that is trying to figure out… Somebody else in from Florida said, “Man, go live your life, please. Don’t let this be the thing that identifies you.” But obviously figure out where you’re comfortable with. But still, you’re allowed to live. And I don’t think that most probation officers are trying to make it so that you can’t even live and you’re afraid to leave your house. I think.
That would be my hope, and I hope I’m right. But I know that they’re human, and they vary in terms of what they’re about. But if all of your probationers fail, you’re not succeeding as a probation officer in my book.
Right. All right, then.
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Well, moving right along. You people put in a couple of things here for tonight that have me scratching my head. And one is a case from Idaho. And it’s a recently filed civil complaint under the United States District Court for the District of Idaho, and we said we would be talking about it on this episode. Yet, I haven’t seen any questions that you’ve provided. And the other issue is a Melissa Lucio, from Texas who is about to be executed, which is always a blast. I’ve read the entire 46 pages Larry of the complaint and struggled to see the relevance to our people. And I think I know the reason why you have the case from Texas in here. I think you intend to show how public opinion can change the course of events.
You’re correct on the case from Texas. And it does not mean that at all on the case from Idaho. I can see a tangential relationship to our issues. Unfortunately, I’ve determined that it’s premature to discuss in great detail.
Well, we will shelve the Texas case until a little bit later. And since you don’t have any prepared questions for me, Larry, I have some on my own. The complaint states plaintiffs are persons who are homeless, who, because the number of homeless persons in Idaho exceeds the number of shelter beds in Boise, have no alternative place to sleep. And they have to be outside on public property, and who have the fundamental constitutional rights under the First Amendment to peacefully and symbolically express their views and to assemble, which is on and near the executive and legislative branch of the Idaho government. My thoughts are, haha, that they there are those who have said publicly that they cannot go to their state capitol because of proximity restrictions. Is that what you’re trying to get at? Is this similar?
I’m glad you noticed that. The complaint goes on to say that plaintiffs and their supporters are symbolically expressing their opinions to Idaho public officials and the Idaho legislature about the desperate need for and lack of available affordable housing, and supportive services for persons who are homeless, and who have no alternative but to sleep outside in public places and vehicles in the city of Boise and throughout Idaho. This is precisely the tangential relationship I see with our issue. Many PFRs are homeless for a number of reasons. Some of those reasons are directly related to prohibitions imposed by local and/or state restrictions, and others are homeless due to the many the same reasons cited in this complaint, which includes unemployment, under employment, mental health issues, and other physical disabilities.
The complaint also states the number of homeless individuals and families in the city of Boise who have no alternative but to sleep outside in public places and in vehicles exceeds the number of shelter beds available. All the plaintiffs who were sleeping at the Capitol Annex were unable to access an available shelter bed. It’s even worse for PFRs. In many instances they are forbidden from accessing shelter beds due to proximity restrictions or by the facility’s internal policies.
Well, those internal policies are totally different from what’s been litigated this lawsuit, so we could probably try to focus mostly on what’s in this lawsuit.
All right then. So then the allegations of the complaint are scary to say the least. They assert that defendants have deliberately undertaken actions to interfere with and discourage plaintiffs’ demonstration based on the content of the message plaintiffs are communicating to Idaho officials and the Idahoans who regularly work, walk and drive by and who are entering and leaving the Capitol Mall area in downtown Boise. Defendants have seized and destroyed items of personal property including clothing, blankets, sleeping bags, food, water, medications, sanitary supplies, chairs, tables, and tents. And most troubling, it alleges that defendants have conducted unannounced searches without warrants under the pretext of welfare checks, which only serve to harass and intimidate plaintiffs and other demonstrators by threatening them with arrest, dismantling and disposing of tents and tarps, forcing the demonstrators to move off the Capitol Annex property and citing plaintiffs and other demonstrators with violating violations of the state’s unconstitutional camping statute. This sounds eerily familiar to how they are known to discourage PFRs from seeking redress of their grievances, does it not?
Well, actually, it does. This is the reason FYP education we’ll be monitoring the progress of this lawsuit.
Do you remember the Tea Party stuff where they did Occupy, whatever, the Capitol. I can’t remember what it was called. It’s like 2008-ish or ‘10? Somewhere around there.
I remember that. Yes.
I remember them doing some kind of like welfare checks and trying to dismantle the camps. That was Occupy Wall Street is what I’m thinking of, wasn’t it? (Larry: I think so. Yes.) Okay. And then paragraph 122 of the complaint says defendants have sought to suppress and punish homeless persons who have peacefully assembled to symbolically express their opinion on a topic that is of extreme public importance to 1000s of Idahoans. Plaintiffs seek to voice their concerns to the general public and public officials about the need for affordable housing, and the lack of supportive services for low income and homeless Idahoans who cannot afford a place to live. It would seem to me that a lack of housing for PFRs would be an issue of extreme importance to the public as well. Is it time for PFRs to do something do you think Larry?
Well, maybe it is. There are those in this movement who believe that that is the proper course of action. But I think this case will tell us a great deal in terms of where the courts are as it unfolds. So I’m very interested in it. That’s why I snagged it, but I had not really focused it on it with a laser yet. But I think it will give us some idea of where this is gonna go.
Can you noodle around just for a minute and tell me, politically, you have a group of people who are on the margins of starvation, essentially. They, I’m going to assume that they don’t vote by any stretch of the of the numbers, statistically. So just showing up on your government’s doorstep saying we’re homeless. I mean, just out of sight out of mind, they would just remove them and put them someplace where they’re out of sight out of mind.
Well, that’s what they did. But what’s going to be interesting is if they have any… within the complaint, I did do a skim read of it, they were allegations that they destroyed a lot of personal property that cumulatively would have a lot of value. And you can’t do that. You just can’t go in and destroy people’s property without any type of due process giving them an opportunity. But what is going to really carry this, in my view, will be if the politicians, if the elected officials in Idaho, are moved by public opinion. Will public opinion recognize that in Boise and most cities of any significant size that there are a lot of unsheltered people in our country? At what point will we decide to address this? At what point will we quit allowing this? It’s a public health hazard not only to them, but to the rest of us. If you don’t have sanitation facilities, and you have people out in the open doing bodily functions, at some point that is going to be a public health hazard. Would you agree or disagree? (Andy: 100%.) So at some point, can they move public opinion enough that we will actually commit ourselves to doing something about the lack of affordable housing? And I don’t know that the courts can order anyone to build affordable housing. But I think they can smack these people around for what they did in terms of suppressing their right to speak out and to peaceably assemble and their destruction of property. I think there are some constitutional claims that are buried nicely in this in this complaint that may result in a significant monetary settlement. And if that does happen, will that cause the legislature in Idaho to take a look? Who knows.
We talked maybe a month or so ago about a, I guess, it was just a dissent. But it was something from Sonia Sotomayor of the Supreme Court, who said that the New York residency restrictions was getting really close to being an unconstitutional banishment kind of thing. I don’t remember the wording exactly. This seems to be very much on par with that as well.
Well, I mean, they’re not being banished in the same way that they were doing it in New York, but we have an economic system that’s not allowing a significant number of people to participate. And the hate mail will flow saying that, Larry, there’s 11 and a half million jobs open, and they are no people to fill them. But if you read this complaint, you’ll see that these people are not capable of filling these jobs, because of the various dysfunctionalities that they have, both physically and mentally, that they cannot fulfill these obligations of a modern economy. So the question we have is do we want to create makeshift work for these people of moving stuff around that doesn’t really need to be done? Or do we want… What do we do as a compassionate society when we have people who do not possess the basic skills and cannot fully participate? And one of them might, as I was doing my read, I think one or maybe two of the plaintiffs are actually on disability benefits, but they’re so low. Our country has not been recognized as being notoriously generous to people on social security disability. I think the average payment is somewhere around $1,300 per month. And then they talked about the 1000s and 1000s of people who are on the waiting list for housing vouchers, which is, again, a lack of funding for affordable housing. The Congress only appropriates so much money for vouchers. And so the waiting lists are usually far longer than the available slots for subsidized housing. So therefore, what do these people do? They don’t have anywhere to go.
A friend of the podcast in Chat says “I work with homeless people regularly. It can be very difficult. Most are in need of many different kinds of counseling, medical and mental care. It’s a very complicated, most can’t work right away.” And if you’ll allow me just for a second, Larry, you have somebody that has been living on the street for some period of time, whether it be days, months, weeks years, and they’re living in the same britches that they have been for X number of months or weeks or whatever. Do you want that person walking in? Do you think that that would be a successful scenario that that person walks into McDonald’s and goes, “Hi, I would like to apply for this job,” if they can formulate that sentence coherently. But they’re gonna walk in, and it’s going to look, and I’m going to be comedic here for a second, look like Pigpen with a whole big dust cloud following them behind them. They’re not going to be able to get the job.
That is correct. And, and when I read the complaint, some of the stuff that sounded self-imposed to me, is very real to them. Because as I read through the complaint, one of them has a service dog or maybe a couple of them have a service dog for companion support. Well, that just barred them from shelters, because the shelter is already compact enough and cramped enough. Space is at a premium. So they just can’t let people have their companion animals. So they have exempted themselves. So there’d be people out there would say, “Well, Larry, if they would just give up their dog, they would have a shelter.” Well, they can’t. For whatever reasons, they can’t.
Yep. All right. Well, then we should move on before we beat around this because I think we could talk about this for the next couple hours. Let’s move on to the matter from Texas and the title of the article is Facing Harsh Criticism in the Melissa Lucio Case. Texas prosecutors may temporarily spare the woman many believe is innocent. Subtitle says federal judges, five jurors who convicted her and a roster of family, politicians, celebrities believe there are substantive doubts about whether the death of Lucio’s two-year-old daughter was even a murder. Is the state of Texas about to execute an innocent woman.
It is indeed. The article states reasonable doubts have lingered over Lucio’s guilt since the 14 years ago when she was convicted of murdering her daughter, questions that will remain even if her April execution date is canceled. And it is widely debated whether the fatal head trauma that killed two-year-old Mariah Alvarez was an accident, and if it wasn’t, who inflicted the injury? This is this is bad Andy.
Yeah, no kidding. According to the article, the case against Lucia was built almost entirely around an ambiguous confession obtained after hours of police interrogation. And the judge at a trial barred expert testimony that might have explained why she would admit to police things she didn’t do. Is this possibly a false confession?
It is. As the execution date nears, concerns about her possible innocence — greatest among them whether Mariah’s death was caused by abuse or an accidental fall down the stairs — have only been amplified. Reading further, Forestalling Lucio’s impending execution has become an international cause, her name and picture splashed across newspapers and websites around the world. An ever-growing lineup of her former jurors, foreign ambassadors, celebrities and more than half of the Texas House of Representatives- listen to that. Half of the Texas House of Representatives- has urged the state parole board and the governor to spare her life.
Her supporters say that there are too many unaddressed problems with the police investigation and her trial to carry out her death sentence without more investigation. And what’s the problem with that, Larry?
Well, the problem is that there’s no mechanism to stop the execution outside of court intervention which has not occurred so far, or a motion from the prosecutor. Lucio’s execution can also be stopped if the Texas Board of Pardons and Paroles recommends either changing her sentence from death to life in prison or postponing her execution date. And I think the article says they can postpone it for up to 120 days. But the mechanisms are very… They’re just aren’t the mechanisms in Texas.
Sure. That’s problematic because Governor Gary Abbott would have to accept the board’s recommendation, which is not expected until two days before Lucio’s on April 27 execution date. The article also says that Abbott also has the power on his own to delay the execution for 30 days, but he has never exercised that authority in a death penalty case during his time in office. What would be another opinion?
You mean another option?
Oh, sorry. Another option. Sorry.
Well, I think, folks, from knowing about Greg Abbott’s political career, you should not expect him to reverse course unless there’s a massive, massive public outcry in the state of Texas which it appears to be building. But pressure has been mounting on the prosecutor to withdraw the death warrant. And before Tuesday’s hearing, which this article is written very recently, the prosecutor indicated he did not intend to halt execution. He stated quote, “Melissa Lucio has already thoroughly litigated the issues raised during her defense, including the theory that her statement was coerced, and that her two year old daughter Mariah fell down the stairs. The jury rejected both of these arguments.” (Cameron County District Attorney) Luis Saenz said, if that’s how you pronounce it, in a statement to the Texas Tribune. “As officers of the court and servants of our community, we cannot allow the rule of law to be suspended and substituted by a court of public opinion.” End of quote.
Do you think public pressure, do you think that could change the governor’s mind?
It could change the governor and the prosecutor’s mind. But yes, it definitely could change if there were an immense amount of pressure. The prosecutor has to be elected. So, but it would require the prosecutor, the elected District Attorney, to hear from the constituents of the jurisdiction, that we’re not comfortable with this conviction and this execution. And we want you to act on behalf of we the people to stop this execution. If you want this execution to stop, you’ve got to put pressure on the officials in Texas because, as they will tell you, they put their hand on the Bible, and they swore to carry out the law. This case has been dragging on for years and years and it’s time to put and end to it.
Go back to the prosecutor. How would the prosecutor have anything to do with stopping an execution?
Well, he requested the death warrant be issued and an execution date. He can withdraw that, according to this article, he could request that the Death Warrant be cancelled.
Interesting. So even after the judge / the jury did their thing and said she’s guilty. I’m assuming the judge then issues the sentence based on what the DA recommended. Wouldn’t that just be hook line and sinker that the deal is signed, and we’re done?
We don’t have that process in my state. But according to this article, and we always rely on the writer, the death warrant he had to request, and he can request that the death warrant be cancelled, and that would cancel the execution date.
All right. In the years that followed Lucio’s conviction, Texas courts rejected her petitions alleging the witness’s exclusion kept her from presenting a complete defense of her innocence. Testimony shedding light on Lucio’s body language or explaining why an abused woman would behave a certain way under police interrogations, the Court of Criminal Appeals found had little relevance to how voluntary Lucio’s statement was. I thought one can appeal a state conviction to federal court. Am I wrong here?
Oh, no, you’re correct. The federal process, it was the Fifth Circuit Court of Appeals that temporarily did put the brakes on her sentence. In 2019, a three-judge panel determined that the judge’s decision, the trial judge that is, was indeed harmful, and intended to send the case back to the lower courts to address the problem. But guess what? The state of Texas asked for the full fifth circuit to weigh in on the case. And it’s a rare move. The judges accepted it. This is what we call en banc review, which is seldom granted. And 10 of the 17 judges agreed to deny Lucio’s appeal last year, with seven of those 10 pointing to an opinion that agreed with Nelson’s, that’s the trial judge, exclusion of the witness. They wrote that the psychologist report, which detailed what he was expected to testify to, did at no point come close to even hinting that any of these statements were false.
Three of the 10 denying judges though were still concerned with the trial judge’s decision, but they believe their hands were tied by the Antiterrorism and Effective Death Penalty Act (AEDPA), a controversial 1996 Federal law passed in a tough on crime era that limits both the allowable number of death penalty appeals as well as their path to success. I’ve heard you people rant about the AEDPA. Can you explain a bit about that acronym?
Yes, very briefly. It was passed by Congress back in 1996 as one of the crown jewels of the conservative movement. I believe it was authored by former Senator Bob Dole from Kansas. It was in response to perpetual appeals from inmates convicted in state courts. There was a believe that cases should end at some point, and the AEDPA provides that federal courts are bound by decisions made by the state courts unless that decision by the state court is contrary to the United States Supreme Court decision. AEDPA severely limits federal courts and prevents them from intervening except in extraordinary situations.
You said somewhere in there that there’s a limited number of cases that can be pushed back against? I forgot the way it was worded. It limits the allowable number of death penalty appeals. So if everybody tries to appeal it like, No? The quota has been met?
No. There’s not a quota, per se, but it limits the scope of the review. So you’re bound by what the state court decided, because as the Conservatives presented to Congress back in the 90s, “We need to get these state convictions out of the- it’s clogging up the federal judiciary. We’ve got these liberal do-good judges that are put on the bench for the rest of their life. And they’re answerable to no one, accountable to no one. And they’re just wrecking the work done by our fabulous state court judges. And you’re basically telling us in the States that our courts are no good.” So therefore, the AEDPA severely limits what type of claims can be successful, and the burdens are so difficult. We should probably have an attorney on that tries to litigate in that area to explain, but it’s a very narrow threading of the needle to get something that’s a cognizable claim. And you’ve got all these deferences built into the state court decision. And that’s thanks to our great conservative movement back in the 90s. And it was in response to what I said, they put the part in there to reinstate the federal death penalty, because we just had the bombing of the Murrah Building in Oklahoma City. And they were afraid that they couldn’t put the people to death. So we needed to make sure that we had a death penalty in the federal system that would actually allow executions.
Do you think that she will be spared? And then I have one follow up question after that.
Well, due to the fact there’s such a public outcry and there’s bipartisan support in the Texas legislature, I rate the odds much better than I would say for anyone else. I think that she has a chance of being spared, but it’s going to be a close call. Nobody’s going to want to be the one who lets a murderer go free, particularly a child murder. This is just not something you want to carry with you in your political career.
So the follow up question comes from your best friend in Maryland, someone that you work closely with? What was the point of us talking about this on this particular podcast? What does this have to do with the registry?
it has to do with how public opinion can impact the trajectory of a case and a cause. So this is what normally would be a judicial decision that would be easy for them to make. Everybody in her situation would normally be put to death. But there is an immense amount of public pushback on this. And they’ve achieved bipartisan support in a legislature that’s very conservative, and being led by Republicans saying “Hey, slow down here.” That’s the significance of this. You can make a difference. You can actually make a difference. This is something where public opinion is altering how this case is going to go and how it’s likely to turn, I think more likely than not, to turn in her favor. At least to get her some additional time to see if there’s anything that can be done to save her.
A person from California wrote in chat says “Larry’s new rule. If you want to move the politicians, you have to move public opinion, not the other way around.” Do you want to give me a quick little response to that one off the cuff?
Let’s give kudos to the person in chat.
Yeah, I’m thinking if the public that is behind XYZ politician, John Smith, Jane Doe, I don’t care, if they all of a sudden say support ‘pick the policy,’ then the politician has to move towards them, so that they would get reelected.
You’re correct. Now there’s one question, you forgot to ask me about this. And someone’s gonna write a snarky email about it. So I’ll go ahead and ask it to myself.
I did? (Larry: Yes.) Well, then I need assistance.
So here’s what they’re gonna say. They’re gonna say, “Larry, if I’m not mistaken, the President in 1996 was Bill Clinton, and he’s a Democrat. And he signed anti terrorism and effective death penalty Act. Now, if you want to be fair, how come you didn’t bash him? How come he gets a free walk?” Well, he doesn’t get a free walk. He did, in fact, sign it. But let’s just set the table of what would happen. So we just had the Federal Building blown up, and I think it was 163 people died. And we had what was, by all accounts, a rising crime rate in the 1990s that people were feeling that they were unsafe. And we had a president who was in the middle of a grueling reelection campaign against Senator Bob Dole, the sponsor of this. Now, what do you think would have happened if he had vetoed Senator Dole’s crown jewel? Do you think that that people would have said oh, well, president’s got a point, we’ll sustain the veto. Or do you think they would have overridden the veto?
I mean, that sounds reasonable that they would have overridden it, depending on what the numbers were. Was it an overwhelming majority in the in the house, in the in Congress?
Well, at that time, the Republicans had control. They captured control in ‘94. And they didn’t lose control for about a decade. I think 2004, 2006, at some point in the George W. Bush administration. But you don’t need- that’s not the full analysis. You have to look at the fact that that was an election year. All 435 members of the House of Representatives were up for reelection. So anybody who was running against a House member at that particular time would have had the question of why are you voting to sustain the President’s veto, meaning that you don’t want to override, and you’re saying that the President is right? He would not have vetoed, because it not only would have it would have been detrimental to his reelection, it would have been detrimental to 435 house members, particularly the Democrat Party, and then there would have been 1/3 the Senate up for reelection in 1996. I mean, it’s just not feasible that they would have overridden the veto. So that’s why a veto would have never been contemplate.
And what you just described was the same thing behind Obama signing IML.
And President George W. Bush signing the Adam Walsh Act. (Andy: Gotcha.) Yeah. That would be a foolish veto.
And because you made your little snarky voice, everyone has to drink. That’s the new rule that was set up.
Okay, well, we can move right on over to Who’s that Speaker? And so last week, sir, I played this.
Senator Albert Gore 1:01:57
I took the initiative in creating the internet.
Well, you were around then, I’m sure. Were you working in the administration at this point, or had you already come to a retirement for them to actually create and invent the internet?
I was still in government in the 60s, when it was on the drawing boards, with the universities, but by the time that this person was pushing the internet, I had retired.
And so who was that speaker before I forget to say who it is?
Well, that would be none other than Senator Albert Gore
Albert Gore, and one of our newer patrons, Deanna, she’s the one that wrote in within seconds of me playing it. She did it with a question mark. So I’m inclined to not accept that answer. So that’s who made the internet. Al Gore?
Yeah, so he was also a vice president, but he was Senator. And among other things, I forget what all his resume included, but he was definitely in politics for a long time.
Like his whole life, I think. Right? (Larry: Right. )Um, all right, then this week. So this is Episode 222, I think. And this would be Who is that Speaker? for 222. It’s a little bit long, but boy, I find this one to be very, very fun. Like, I know, you will not know this is.
Who is that Speaker? 1:03:16
I tell you, schools are a very appetizing opportunity. I just saw a nice piece in The Lancet arguing that the opening of schools may only cost us 2% to 3% in terms of total mortality, and you know, that’s any life is a life lost. But to get every child back into a school where they’re safely being educated, being fed, and making the most out of their lives with a theoretical risk on the back side might be a tradeoff some folks will consider.
I found that one to be super interesting Larry, because this was a this is a person that is running for office. And they said that maybe it’s okay to lose 2% to 3% of kids. Maybe that would be an okay trade off, which is coincidentally, roughly the same number that our people say the recidivism rate is. That’s why I found that one to be a little bit interesting.
Well, I can’t wait to hear who that is.
So if you know who that is, email me at firstname.lastname@example.org and put in like WTS 222, or something like that, Who’s that Speaker or something like that, so I can find it easily with the subjects that exist. And also, Larry, we received a new patron. Jacob in Iowa. Thank you very much. And if you would like to become a patron, you can go do so over at patreon.com and support the program, which we certainly very much appreciate. And then I will turn it over to Larry to promote FYP education.
Absolutely. Those of you out there who are just getting ready to file your taxes in another day or two and you just haven’t quite thought about how bad it is this year, because you can’t do anything about this year that’s for 2021, what you’re about to file. But if you’re looking for 2022 to diminish your tax liability, FYP education is an option to consider because we’re a 501(c)(3), meaning that your donation is totally fully tax deductible. So go to FYPeducation.org and click on that button somewhere on the website. And we’ll be glad to process that for you.
Very good, sir. I think we can shut this all down now. We’re at a little over an hour long. And there’s a tiny little bit editing that I got to do, because things die on me. My brand-new computer makes no sense to me. But find the show notes over at registrymatters.co. Phone number 747-227-4477, email@example.com. And of course, our favorite way to have support from you is patreon.com/registrymatters. We do love all of our patrons very much. And I greatly appreciate you and if you want to give a question or something like that, we certainly give priority to patrons. And I think that’s all I got. Larry, anything you want to say before we head out?
Awesome. For those who receive it tomorrow, there are patrons and those are here tonight. Happy Easter. And we’ll see you in about a week.
Very cool. Thank you, everybody for joining us in chat and we’ll talk to you soon. Have a great night, Larry.
You’ve been listening to FYP.