Listen to RM226: Indiana Appeals Court Denies Ex Post Facto Challenge
RM226: Indiana Appeals Court Denies Ex Post Facto Challenge/
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.
Recording live from FYP Studios, east and west. Transmitting across the internet. This is episode 226 of Registry Matters. Good evening, fine sir. How are you?
Awesome. How are you this evening?
I am doing splendid, splendid. We have a full house in chat, as always. So thank you all for joining us. And before we get too deep into things, I will just mention to make sure that you hit that Like and Subscribe Bell and get notified when a new episode is released onto the interwebs with the Tubes and all that stuff. Right. You know about the Tubes?
That’s right. Give a five-star review.
Yes, on any podcast app that you use, and that’s my favorite way of working with this stuff is with a podcast app. Can you tell me, sir, what we are up to this evening?
We’re gonna have a lot of fun this evening. We’ve got a listener question. We’ve got your favorite Supreme Court Justice, our audience’s favorite Supreme Court Justice; some clips. We have a very interesting case from the Indiana Court of Appeals and possibly some articles that we never seem to get to. But we have some articles just in case.
All right. Well, let’s move right over and start off with this question from a listener that came in in email not too many days ago. And I think this is one of those ones where like a friend of a friend of my father’s granddaughter’s sister said… but this is, he says it’s asking to forward this message on behalf of someone else. As a result of a 2018 negotiated plea conviction for possession of CP in violation of South Carolina code 16-15-410. Currently under PCR review. Can you tell me what PCR is?
Ah, okay, post-conviction review. The court sentenced me to prison for 10 years suspended to eight along with five years of probation with a condition of probation that I have no internet for the duration of probation. This is not simply a restriction on what sites I may visit or not, nor does it give the probation officer any discretion in allowing me even limited access. This is an absolute outright ban that prevents me from using the internet for any purposes for the duration of my five-year probationary period without exception. Obviously, this presents itself a serious hardship on me reintegrating back into society. As many of you know, there have been a number of court decisions where these outright internet bans have been struck down. Larry, sir, I believe that this would be problematic with a full outright ban. What do you think?
It very well could be. I’m guessing on what I said about the PCR. A lot of states have PCA. They have different things for postconviction vehicles to try to move those challenges that arise after a person is sentenced through a process that’s somewhat established. And I’m guessing that that is post-conviction review or post-conviction relief. He’s disagreeing with a condition of his sentence. And normally, that’s what that would stand for. But feel free to write us back if I’ve got it wrong. But anyway, when you have a total ban on the internet, that is going to be very problematic, and it’s going to be subjected to a very strict level of scrutiny. And of course, here’s what the state is going to argue: they’re going to argue that it was a part of the negotiations, and therefore he agreed to it. The state will certainly take that position. So far, so good, right?
Yeah, so far, so good.
But when you’re in these negotiations, sometimes you don’t know these things with the clarity that you discover when you’re actually under community supervision. And so the question is going to be for the PCR process is whether they can make an extraordinarily high threshold- they’re gonna have to meet a very high threshold to show that they can do a complete ban, because there’s so much technology that allows for monitoring in keeping the supervised offender on the straight and arrow, so to speak. So if they have outright banned him in the modern economy, there are so many things that are dependent upon access that that’s going to be very difficult in a challenge to sustain. So can they do it? You know, the first answer is they can do it until they’re stopped. And the second thing is that we really don’t know quite enough about this case to know the extent of what the offense was, and how egregious the violations were that they made the court feel that it could reasonably impose the complete ban. The judges, by and large, usually know that they’re getting into some difficult areas unless they’re really, really old, and they don’t really understand the internet. If anybody is under 50 as a judge, they’re going to know the internet is integral and that having a complete ban is gonna be very problematic. So I certainly wish him well, but when we get a little bit more follow-up, maybe we could be more precise once we know the circumstances that existed underlying this conviction.
Do you think that if someone were, let’s just say they’re the Al Capone of CP, do you think that that would then be justification for a full outright ban on the internet?
My personal opinion would be no, because I balance that with the rehabilitative in-community intent of probation. And you make it difficult for a person to succeed. So you’re basically defeating that. And also, I know that the technology has evolved. Even though I’m not much of a techie, I know that the technology has evolved to the point where monitoring can be significant. You could probably address that better than I can in terms of what all they can do to monitor your keystrokes, and monitor your surfing history, and your download history, and all these types of things. But I think the monitoring is sufficient that they should be able to allow them some level of supervised access.
Yeah. I mean, personally, with as much tech as I understand and do, I believe that they could monitor with a list of places… Larry, there are places out there where you can get like a list of 100,000 different places that you should not go. This would include anything that has adult content. This would include places almost like pawn shops, where they may sell guns and things of that nature. You could easily implement monitoring and blocking. It makes it very hard for me to understand why they would just say no, you can’t touch anything that has ones and zeros in it for foreve. That seems really problematic.
It does indeed. And you just mentioned something that I never would have even thought about. I would never have thought about not going to a pawn shops website. It would never have occurred to me.
Totally. I just remember that from a place that I worked at for a million years ago. That was on the list. And I was like, “Why do you ban pawn shops?” Because they sell weapons and stuff like that. And they don’t want that occurring on company time. If you’re going to search for- I don’t know- a weed-eater, I mean, I guess that’s okay while you’re at work, but not searching for an M16.
But pawnshops sell a number of things. They sell jewelry. They sell so many things; electronics. Just to think that the weapons is all they sell, that’s kind of, I mean… I haven’t been to a pawn shop for decades, but they sell more than just weapons, I think.
Well, they totally do. I just think that that’s a- I’ll throw out that 25 to 50% of their business is going to be weapons. Shoot me 8,000 email messages if you disagree with me, but that would be my belief is that that’s where people go to buy weapons on the cheap.
Well then, would you banned equally from going to a sporting goods store?
You go into a Walmart-type place, and there is a section that sells weapons, like hunting rifles and stuff like that… But considering that a Walmart has, I don’t know, 40,000 skews in there, Like these are the 25 items out of the 40,000 that they have in shop. I don’t think that that’s comparable to a pawn shop having, I don’t know, 1000 items, and they have 50 or 100 guns in there.
Sure. I had narrowed it down to just a sporting goods store where probably you don’t have 40,000 skews, you probably have 3,000 skews. And I pulled that out of air. They certainly sell a lot of sports memorabilia, and they sell shorts and tank tops and all these things. But weapons are readily available in sporting goods stores, aren’t they?
Yeah, yeah, yeah, but I’m thinking of one nearby and they sell shoes, and workout mats, yoga gear, fitness stuff. And then there’s also a whole hunting-type section that would include boats treestands, all that other stuff, to include things that make loud boom noises.
And you see the point I’m making though, if you banned places just because they happen to sell something then your banning is kind of like the clause in supervision contracts that say that you can’t frequent any place where children congregate. Well, you’ve just eliminated everything.
Totally. Like, again, Walmart has its little aisle where there are toys and stuff and that would be a place where children would often go. “Hey, go hang out in the toy aisle while Mommy and Daddy go shopping.” Okay, then you know where they are, give or take. So you can’t go anywhere near Walmart because of that. That’s ridiculous.
So yeah, like every restaurant McDonald’s, Chick fil A, they have children’s playgrounds and stuff. Burger King. So you couldn’t go to any of those places under the extreme interpretation that any place where children congregate. Children congregate in so many places unless it’s exclusively an adult establishment.
I gotcha. Do you mind if I run slightly off script? A question just came in from one of our forever longtime patrons. And he just posted it to me, and it looks like a halfway decent question. And I’d like to throw it at you. But you haven’t prepped for it. Would that be okay?
I’ll try my best. Particularly since it’s $1,400 a month patron.
He’s totally like that. You met him at the last conference. He came in from a very, very, very far distance away. He’s in New Jersey. Says, “Quick question if you have time tonight. If the PFR registry is supposed to be a civil matter, why does a person’s inclusion on it come back in a criminal background check?” I think I understand that.
I understand it. That’s a great question.
So what do you think as an answer?
I don’t know what the answer is, but it’s a great question. Most civil regulatory schemes that we talk about, when you run a person who’s subject to draft registration, which is a civil regulatory scheme, that doesn’t come back in a criminal background check, but it’s not connected to a criminal conviction. But it’s a great question. See, he should be a lawyer. Seriously, seriously, in all the years I’ve been doing this advocacy, I’ve never thought of that.
All right, well, then, yes. So you’ve done your time you’ve done like, so you’re not… You essentially just have your quote unquote, felony at this point. And so now it lists you as being on the registry as… Can you dig into that deeper, then? Can you rephrase that? If the SO registry is supposed to be a civil matter, why does a person’s inclusion on it come back in a criminal background check? I mean, they’re looking for specifically that thing, and they’re gonna then pull info from the various sites, the state registry websites. So if you’re still on the registry, then that’s not a very difficult search to include in it.
Well, man, I see his point. And I see the response you’re making. Clearly, the registry is most often, not always, but most often connected to a conviction. It could be not guilty by- an NGI as we call it – not guilty by insanity. But very likely, it’s related to a conviction or even a deferred adjudication or something where there was actually a stipulation to facts, even though conviction may not have been entered. But it’s related to criminal activity, and it’s a public database. And so therefore, no employer who has access to a public database is going to refuse to run it. They’re not gonna say, “Oh, well, you know, we wouldn’t dare run the registry.” Can you imagine what type of negligent hiring practices that they would be accused of if they didn’t do that? So of course, they’re gonna run it. But that’s an argument that can be asserted in court that I had never thought of in terms of clearly this is criminal because everybody who does a criminal background check includes the registry. Whether the court will be swayed by it is another matter, but nobody has ever raised that to me before.
Interesting. Okay. Well, then maybe we can, I don’t know, put that on the two-months-from-now docket for you to dig into that deeper and see what we can come up with. We can file a challenge on everyone.
That’s right, a class action.
Yes, we will make a class action because they’re very easy to attain that level of review, correct?
That’s correct. Everybody should do a class action. We got that email just a couple days ago.
Hahaha. All right, well, then let’s go over to this Scalia section that you have put together for us. These are three clips from an interview with the late- what was it? 20016 that he passed away, February of ‘16?
I think so. Remember, I’m so old, I can barely keep track of my own stuff.
Alright, so do you want to set these up before we go into them? The first one is about a minute and a half long, a little bit less than that.
Well, it’s a little bit about we’re going to use this as a guiding principle for when we talk about the Indiana case coming up. And I hope that people can remember some of these clips because these words hopefully will connect with how the court ruled but there are those who believe that the Constitution in this first clip is a living document, and we will hear from the late Justice Scalia about the living Constitution in clip one.
Alrighty, then. Well, then let’s hop on over to clip one.
Unknown Speaker 15:10
Segment one. Reading law, quote, “We seek a return to the oldest and most common sensical interpretive principle. In their full context, words mean what they conveyed to reasonable people at the time they were written,” close quote, Mr. Justice in this 236-year of our republic, why should it be necessary to devote more than 400 pages to a common sensical principle?
Justice Scalia 15:32
That’s a very good question. Well, the reason, as explained in the first part of the book is that we’ve sort of gone off the rails. That nowadays, especially with regard to the Constitution, the accepted view, and the view stated by my court repeatedly, is that the words don’t necessarily mean what they were understood to mean at the time, but can be given new meaning. It’s up to the court to say what they mean today. They mean today what they ought to mean today, and it’s up to the court to decide that. That’s new. But, you know, it all comes under the title, the living Constitution.
All right, what do you want to talk about with that one?
So, he’s telling you that you interpret words to mean what they were understood to mean at the time they were written. That’s the Scalia doctrine on interpretation. Not what they can possibly mean today, 236 years later, but what they were understood to have meant at the time. So that’s what I want people to understand. He doesn’t speak for all nine, but that’s his view. That was his view. Okay, so we can move on to clip two, which is where he talks about textualist, and how his colleagues don’t really agree with him. So this is a little bit more about textualism.
Okay, clip number two.
Justice Scalia 17:14
Even if you are a textualist, though, and you say yes, we’re bound by the text, you can give the text the meaning it bore at the time, or you can say, and indeed, many of many of the living constitutionalists, they say we are all textualists now. Yeah, they all start with the text. (Unknown Speaker: But they don’t end with it.) They don’t end with it, and they don’t give it the meaning it had when the people adopted it. That especially important when you’re dealing with the Constitution, because the Constitution takes out of the democratic process, certain particular items. And you’re tampering with democracy when you remove items that the people really never agreed to remove. You know, the death penalty is a good example. I’ve sat with four colleagues who thought it was unconstitutional, even though it’s absolutely clear that the American people never ever voted to make the death penalty unconstitutional. When the Eighth Amendment was adopted, the cruel and unusual punishments clause, the death penalty was the only penalty for a felony. It was the definition of a felony. Every state had the death penalty. So nobody could plausibly claim that the American people said no state shall have the death penalty. But I’ve sat with four colleagues who have taken that position.
And what are you going after here?
Well, I’m going after that not liking something as society evolves doesn’t magically transform it to be unconstitutional because of the evolving standards, if you are of the belief system of Scalia. Now, I stopped that clip, and I should have let it go a bit further. But he says, If you don’t like the death penalty, go out and do it the old-fashioned way. Change the law. Nothing requires the imposition of the death penalty. In fact, he says, many states have banned the death penalty. But he doesn’t believe you can invent your way out of something that was not intended to be prescribed as unconstitutional. You cannot evolve your way out of that. Those are his beliefs. So if you want the court to evolve, then he’s not your guy. That’s the point I’m making. People who have that belief system are not your guy. That’s the only point I’m making with that. So then we have one more beginning with false notion about committee reports. This is about establishing intent for a law. Everybody says we should look at the intent. We should look at the intent. Well, here’s what Justice Scalia thinks about intent of the law.
Alright, clip three.
Unknown Speaker 20:07
The false notion that committee reports and floor speeches are worthwhile aids in statutory construction. Close quote. Mr. Justice Scalia…
Justice Scalia 20:19
How much time do we have?
Unknown Speaker 20:21
…you have no interest in probing the intent of a legislature.
Justice Scalia 20:25
Well, yes. You will rarely find a court that does not say the object of the construction is to discern the intent of the legislator. I say that all the time. I think Aristotle said that. I think it’s wrong. At least it’s wrong in a democracy. We are, as the famous line from the Massachusetts Constitution says, a government of laws, not of men. We are governed by the laws that Congress enacts not by the unexpressed intent of whoever wrote them. And if they meant up when they said down, that’s their problem. I, frankly, if the legislative history is utterly clear about that, too bad. We’re governed by the laws.
So, someone even brought up in chat with you, Larry, it says, “His position does put the onus on Congress to do its job. And that’s not a bad thing in principle.” Which I don’t disagree with what was said there. Just with what we covered last week, or the week before with the Ninth Amendment, that you have unenumerated rights, that you have rights, that are based on history, and so forth, that you have rights that were not explicitly identified. But if they didn’t write it down, but for 50 years, you’ve had, quote, unquote, a right to something. Then, you, by… what am I looking for? Just, even though they didn’t write it down- there’s a word that is not coming to my brain- you have a right to something, because for years and years and years- I guess precedent is the word- You’ve had it. So therefore, you have it, right?
And we’re gonna get to those clips in the next episode, or the one after. This interview is filled with good clips of where he addresses that. And I don’t know that I agree with the person says it forces Congress to do his job. I think I would expand out a little bit. It forces the people to elect folks who represent what they want. If you want there to be no death penalty, then when a person says I’m running to be your state representative, you say, what is your position on the death penalty? Oh, you support the death penalty. I wouldn’t be able to support your candidacy. Thanks for stopping by. Or when they’re running for office for reelection for an office they already hold, what is your position on the death penalty? The old-fashioned way is what Scalia believes in that things, unless explicitly stated in the Constitution, that it’s up for the people to decide those things, not for a court to evolve them in or out of the Constitution.
This is so nuanced minutia of in and out of what is what supposed to be and in what place? That’s so complicated. Well, that Ninth Amendment really, really threw me for a loop when I listened to that podcast a couple of weeks ago about that, that you have these unenumerated rights based on precedent. And then the position of- I lost his name, again- the one that wrote the Roe Draft. Remind me.
Who wrote the majority opinion? I don’t remember.
No, no, no, no. Just this one couple of weeks ago, the draft release?
Oh, that would be Alito. Justice Alito.
Alito, thank you. But his precedent is like looking at something that might be 100 years old and not 50. So where does that line get crossed? Maybe you have a more forward thinking… It would take less time, maybe 10 years as precedent. But another justice looks at it as being 100 or 150 years, maybe it’s 200 years that that’s the minimum standard. Our country’s only 270 and change years old, you don’t have a whole lot of, quote unquote, precedent that would meet those long time durations.
Well, I’m going to have some words from Scalia soon where he talks about the freedom of speech. And now, he magically on that one, he’s able to look beyond the words because he says well, we have to interpret reasonably, not strictly. And he says now, for example, he said the freedom of the press, he said there’s nothing about an individual being able to write letters, but clearly that was the intent was to protect the individual’s, right? Well, it didn’t say that in the constitution. So if it didn’t say it by your general Philosophy… They could have said it. They were clearly thinking about it. That constitution convention went for quite some time. I mean, it was like four or five years before I was born, haha. But it lasted for quite some time. And they thought about a lot of things. So maybe, you know, by that standard since you’re not protected in your letter writing… I’ve got more coming on Scalia, because he’s not the cure all. He’s not the cure all, end all. He was the cure all, end all when it comes to the Confrontation Clause. He looks at the Constitution, the Confrontation Clause says that the person shall be brought into court and you shall have the right to confront them. And he was steadfast that, “Gee, I don’t have an ambiguity here. It says that you shall have this right to confront your accuser in open court.” So he was good on that. But there’s a lot more to our issue than being good on the Confrontation Clause.
Alright, well, then let’s move along. I made a quick little segment here to describe something that I think will be beneficial for people. So hey, Larry, have you heard that in places like Germany and other EU countries, there’s something called the right to be forgotten?
I’ve heard of that. I’m pretty sure I think I’ve heard something like that. Yes, these liberal countries come up with all kinds of crazy notions. But yeah, I’ve heard of it.
Briefly, at least as I understand it, it is law that you can petition a service like Google, fill in the blank on whatever search engine you want to use, though, and other search engines to remove personally identifiable information from their search results
I fail to see what purpose that would serve.
And to move along, Larry, it’s kind of like Doxing. Do you people know what that term means?
I’ve heard of that. Yes. I think it’s actually even happened to me. And I’ve known people that have had this done to them. Is this useful for PFRs or are you smoking wacky weed tonight?
I have plenty of wacky weed. It says, Yes, I do believe that it is useful for our people. So if you do a Google search, you know that, especially if you have like a fairly unique name, then all kinds of garbage shows up. You’ll find news reports about you, you might even find your registry related information linking back to that, but you’ll also find these commercial companies that are doing scrapes of these PFR sites. And they’re adding information there and they can send you notifications and so forth. So someone like that, someone like a name like John Smith, he won’t have much of an issue because it’s so common. Do you follow me so far?
So far, you’re making sense. But are you headed somewhere?
I am headed somewhere. But if your name magically disappeared from Google, then there will be less of an issue with you searching for your name, because less information would show up. You can now perform this in the US. It’s a little bit more limited. It’s not law. But Google does provide this at least as an option.
That sounds fantastic. But how does it work? Limited you said.
yeah, it is limited, because this is only with Google. And the benefit is Google is like, I don’t know, 80 or 90% of search results. So you would, effectively, if they would remove your information from a search, then you would, more or less for all practical purposes, disappear and people wouldn’t be able to find you. The limited part is that if someone went directly to one of these sites that has these lists of people, then… like, not the government sponsored one of the registry, if you went to one of these commercial products, then you would still show up there for the person to the search. But Google, if you can get them to remove you, then you can have your stuff removed from the internet from that angle. Does that make sense?
It’s very cool. I like the idea. And yes, I have heard of that. I think the US is going to be far behind the countries that are moving in that direction, because the commercial influence is far greater, I think, in this country. There’s a lot of money made, as I understand it. And when there’s money to be made, there’s a lot of pushback. I mean, people scrape the courthouse records for public documents that people have recorded, and then they’re resold because they make it easier for you to get these documents than going to the courthouse. And I just can’t imagine that if money is to be made, that the business entities are not going to push back very hard to keep the status quo.
A person in chat who was from another country said that he did a request on the European side and he was able to get off of, looks like sex offender archive mugshots, homefacts, city data, and they dropped their pages about him on the US-side as well. That’s really cool. So those were some of the places that I would think that our people would be impacted positively by at least Google not returning results about your name. Again, this is not going to remove you from those sites. But if it looks to them, like it could be something that might get you doxed, then… The whole registry, like all of the public websites, isn’t that just Doxing of a different name? But it’s government-sponsored Doxing. Larry, isn’t that a fair way to characterize it?
I would say it is.
All right, well, then I’m done. I have a link if you want to look in the show notes, its support.google.com and then some junk after that. But if you search for remove PII, remove personal information from Google, I believe that you will find the document, but you can look in the show notes for it as well.
Are you a first-time listener of Registry Matters? Well, then make us a part of your daily routine and subscribe today. Just search for Registry Matters through your favorite podcast app. Hit the subscribe button and you’re off to the races. You can now enjoy hours of sarcasm and snark from Andy and Larry on a weekly basis. Oh, and there’s some excellent information thrown in there too. Subscribing also encourages others of you people to get on the bandwagon and become regular Registry Matters listeners. So, what are you waiting for? Subscribe to Registry Matters right now. Help us keep fighting and continue to say FYP.
Moving along. So you put a case in here for today named Tracy William Crowley versus the state of Indiana just handed down by the Indiana Court of Appeals a few days ago. I’ve read the case, and it’s obvious to me that the court botched this case up. But before we dig in, can you at least admit, Larry, for the first time, can you admit that the court made a mistake?
No, I cannot say that at this point.
It figures. You live in a perpetual state of denial. Let me set up the case for you since I’m sure you don’t understand it as well as I do. Tracy William Crowley was previously convicted in Michigan of a felony PFR-type offense and registered an Indian as a PFR when he moved to Indiana in 2004. That’s a lot of PFRs. He appealed the trial court’s denial of his petition for removal from Indiana’s PFR registry. I’m interested in drilling into this petition for removal because I know how obsessed you are that the person should bring the right case of action using the correct vehicle to raise the claims. Did he bring the right cause of action?
I’m not sure. But it appears that the claim he asserted using the vehicle he chose is a claim that the court does have authority to consider. But I’m not sure if it was the best choice of vehicles or the only choice. But it may well be that a petition for declaratory relief might have been a better choice. But I cannot say that that was available based on what I know at this particular juncture.
Why is the type of choice of the petition so critical?
Well, the type of the petition filed determines the scope of the court’s examination. Courts have very broad latitude to admit evidence in a declaratory judgment action. On the other hand, a petition for removal is limited to those who are eligible for relief under the law. So like, for example, take the state of Georgia. If you don’t meet that criteria that they’ve established for a removal petition, then you can’t even file one. You can’t just invent that petition and stretch it out to make it be a removal petition for any conceivable set of circumstances. But a declaratory judgment, on the other hand, allows you to petition on any conceivable set of circumstances as long as it’s not so ridiculous that it’s not a plausible cause of action, that you don’t have anything credible underlying the petition. So you need to have the leeway for the Court to hear the evidence that you’d like to get before it, and you need to be eligible for the relief. In Georgia, if you’re not a level one, and if you don’t have the requisite amount of time, you can’t file the petition. The court couldn’t grant you the relief, even though they might would like to. Do you understand what I’m saying there?
I believe so. But now, I think you’ve moved into some legal mumbo jumbo here and explain that in a way that an ordinary mortal can understand.
Well, I thought I did. A petition for removal under state registration scheme, when filed under the provision for the removal process, are limited strictly to those who are eligible for removal. For example. the law may require that a person has been registered for a particular number of years and an approved treatment program be completed. If the person does not meet the established criteria, the court cannot grant the petition, regardless of the court’s wishes because the person is ineligible. On the other hand, if the person files a petition for declaratory relief, he/she can argue that the requirements of the registration scheme itself is unconstitutional as applied. One cannot make that argument in most petition processes; however, it appears that they can in Indiana under Indiana Code § 11-8-8-22. It looks like there is that provision to make t those type of claims. So I’m not sure. It may be the only vehicle they had. But I would certainly have research that very thoroughly if I had been the consulting paralegal on the case. I would have said, “Hey, we don’t want to use this vehicle unless it’s the only vehicle we have.”
And at the end of this, if you can remind me to ask me about that thing that you just said, if you were the consultant as a paralegal on this, I’d like to come back to that. But before we do that, it puzzles me, Larry, that you have no heart. This case happened back in 1988 when Crowley was just a mere 20 years old. He was convicted in Michigan of a third-degree criminal sexual conduct back before the PFR registry existed in either Michigan or Indiana. How was this not an ex post facto violation? He asserted that Indiana’s registration laws as applied to him violate Indiana’s Ex Post Facto Clause because a registry did not exist at the time of his conviction. Let me hear you, like, noodle your way out of this. I backed you into a corner now. You have to figure out how to explain your way out of this one. I’m going to use my dojo and attack you.
I can only explain that the state argued in response to Crowley’s petition and the court’s decision itself. I cannot explain that this is not an ex post facto law, because it is. I can only tell you that the court found that it does not violate the Ex Post Facto Clause and the reasons why they found that.
Oh, please, Larry, explain the reasons. Please, please, please explain them.
Well, according to the court, the most relevant was that SORA, which is the Indiana Sex Offender Registration Act, was amended in 2006 to define a PFR to include a person who is required to register in any jurisdiction. And that’s in Indiana code § 11-8-8-4.5(b)(1). And then they also amended another subsection there (see also I.C. § 11-8-8-5(b)(l)). And then in 2007, SORA was amended to provide that a person who is required to register in any jurisdiction shall register in Indiana for the period that they were required to register in another jurisdiction or the period described in Indiana’s law, whichever is longer. And the citation to that as there (I.C. § 11-8-8-19(f)). So their explanation is the law is the law. He is a lifetime registrant as defined by Indiana law. So that’s why he has to register for lifetime. Is that an explanation?
No, because I don’t think I can let you off that easy because as I understand it, the Indiana Supreme Court was the was one of the first to find problems with applying registration requirements retroactively. And I guess you people have forgotten two significant cases, Does Wallace v. State, (905 N.E.2d 371) decided back in 2009 or Gonzalez v. State, (980 N.E.2d 312) decided in 2013 ring any bells to you?
Yes, they both do. But unfortunately, they did not control the outcome here.
Oh, well, I know that you’re getting up in the age there Larry, so I will refresh your memory. An offender who had pled guilty to CM in 1989 and completed his sentence and probation in 1992 – two years prior to the enactment of Indiana’s SORA in 1994- argued that the Act as applied to him violated Indiana’s ex post facto clause. He won. How is this different?
Well, it is different because the Wallace court held that Richard Wallace was charged, convicted and serve the sentence for his crime before the State collectively referred to as the Indiana PFR Registration Act were enacted. In other words, he was done before it started. So the court said, We conclude that as applied to Wallace, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.” That’s on Wallace v. State (905 N.E.2d at 384.) For those of you legal beagels, that’s at 905 Northeastern reporter, second, at page 384. That’s what they said.
You’re sounding like a politician doing the dance here. Crowley’s offense occurred before the creation of the PFR registry in Michigan or Indiana. Again, how is this different? What compelling argument did the state make?
Well, it’s a great question. The state moved to dismiss or deny Crowley’s petition arguing that application of the relevant registration laws, particularly the other jurisdiction requirement which was added in ’06 and ’07, for Crowley does not constitute an ex post facto punishment.
It’s gotta be because it’s a civil regulatory scheme. Is that fair? (Larry: No.) Oh, okay, then. Well, how could they make a credible argument in view of Wallace then?
Well, the state relied mostly on a pair of Indiana Supreme Court decisions, Tyson v. State, 51 N.E.3d 88 (2016), and State v. Zerbe, 50 N.E.3d 368 (2016). And those were both decided in 2016, which challenged the retroactive application to those 2006 and 2007 “other jurisdiction” requirements that were added that a person with an out of state registration requirement must register in Indiana upon arrival. The court in both of those cases concluded that the effect of registering in Indiana upon moving here was effectively maintaining an out of state registration, and thus, not punitive, regardless of when or where the registerable crime had occurred. The Zerbe Court explained quote, “It is not Zerbe’s crime that triggers his obligation to register as a sex offender in Indiana; rather it is his Michigan registry requirement that does so.” And that’s on page 50 Northeastern third reporter, at page 370 (50 N.E.3d at 370).
The court stated “As a threshold matter, we clarify that Crowley’s claim is that the Act, and specifically the other jurisdiction registration requirements – enacted by the 2006-07 amendments – are unconstitutional as applied to him. He makes no claim, either below or on appeal, that he was not required to register in Michigan before moving here.” This seems so dubious to me, Larry. What does Michigan’s law have to do with Indiana?
Well, I wish it didn’t have anything to do, but it has to do with Indiana law because the people of Indiana decided a number of years ago in 2006 and 2007 to insert that section that requires registration for anyone who’s required to register in another jurisdiction. Crowley apparently conceded that he was required to register for life in Michigan, and that requirement was transferred to Indiana when he moved there. So says the law and now says the Indiana Court of Appeals. We just heard Scalia. The law’s the law.
And the law is the law because we elected the politicians that made the law. Therefore, the statement that I make is the problems that we have today is because of we the people voted for them to be the problem, which is good news is because we can then vote to make them “un- the laws.” Right?
That is correct.
You people seem to think that the FYP archives aren’t magnificent tools. And I remember a case called Hope versus Commissioner of Indiana Department of Corrections. The Seventh Circuit addressed claims by six PFRs who relocated to Indiana and filed for declaratory and injunctive relief, arguing that Indiana’s SORA violated their right to travel under the privileges or immunities clause, their right to equal protection under the 14th Amendment, and the prohibition on ex post facto laws in the United States Constitution. The district court granted relief to plaintiff offenders on all claims enjoining Indiana from requiring them to register and the state appealed. Like Crowley, at least one offender had a registry obligation in another state, but moved to Indiana before 2006-2007 judicial amendments. How are you going to spin your way out of this? Ultimately, a divided panel of the Seventh Circuit Court of Appeals concluded that Wallace prevents the state from requiring a new resident to register under the “other jurisdiction” provision of the Act if the new resident committed their crimes before Indiana adopted “other jurisdiction” requirements in 2006 and 2007.
Well, it’s not all that difficult to spin my way out of it because the case didn’t end there. We had a full court hearing en banc- and I think we discussed that on the podcast- But the full court of the Seventh Circuit in a divided opinion reversed the victory. And that was, I think, in 2021 in Hope (II) (Hope v. Comm’r of Ind. Dept. of Correction, 9 F.4th 513, 519 (7th Cir. 2021) (Hope II)). The Hope (II) court acknowledged that under Wallace, if an offender was under no registration requirement prior to SORA’s passage imposing a registration requirement in the first instance is impermissibly punitive. However, if another state previously subjected a pre-Sora offender to a registration requirement, requiring him to register in Indiana is not punitive. Now that’s splitting the hairs, I’ll have to confess that. But Indiana case law does has a peculiar effect of permitting the state to treat similarly situated offenders differently based on solely on whether the offender had an out of state registration obligation when they arrived. This is sad, but this is the way it is.
And are there any ways to apply Kennedy Mendoza Martinez factors that you always rant about?
Well, they did. They did. They stated that, “Weighing the seven factors as they apply to Crowley and his circumstances, we find that, on balance, application of the 2006-07 ‘other jurisdiction’ registration requirement to Crowley does not constitute ex post facto punishment. We are not unsympathetic to the fact that Crowley’s offense was committed over thirty years ago and by all accounts he has lived a productive and crime-free life in our state. However, that is not our inquiry.” Remember Scalia. Remember Scalia. The People make the rules. “We are tasked with determining whether the Act as applied to him violates the Indiana Constitution’s ex post facto clause. Based on the intent-effects tests, as well as considering the recent guidance of our federal counterparts in Hope II – who discussed and applied our Supreme Court’s directive in Tyson and Zerbe to at least one offender who, like Crowley moved to Indiana before the 2006-07 amendments – we conclude it does not.” That means it does violate the Ex Post Facto Clause.
So this would fall into the category of constitutional, but stupid.
Yes, it does fall in that category. And I hope I illustrated the point of things may be bad. But if you want the courts to restrict and restrain themselves and only look at the law, and you don’t want them to look at anything beyond the law, this is correct.
Stupid, but constitutional. Whack. Stupid, but constitutional. Whack. Stupid, but constitutional. Whack.
Where did that come from? So, if you want that, then you have to be consistent. If you don’t want them looking at intent and feeling bad for the person who had committed a crime in 1988 as a 20-year-old, and you don’t want them substituting their judgment for those you elected, then be careful what you ask for, because this is what you get. This is a very textual interpretation based on the state Supreme Court’s decision and two fairly recent cases in 2016.
I’ve reminded myself of that, I wanted to ask you the question about the paralegal side of things of having like a consultant on a case. How is it- Like, I’m just going to assert, Larry, that you are the most knowledgeable about this particular subject and many others, but this one in particular as it applies here. Then anybody else that exists- So how is it that these court cases continue to come up, and no one, at least within our sphere as I understand it, ends up being requested for any sort of input, insight, anything at all? Especially not you. How was that not a thing?
I’m not really seeking business at this point. Even in my own state, I’ve had to cut back because I’m turning 178 next month. So at some point, you have to slow down. But yeah, I would have been happy. There’s something about lawyers that doesn’t allow them to consult with a subordinate. You have to be a particularly mature lawyer. And on the pecking order, I’m not on the same level with the attorney, and it takes a fairly mature lawyer, as it takes a very mature business manager… I’ll have a Buffett clip one these days where he says “you surround yourself with people that are a lot smarter than you are.” And it takes us very special lawyer to surround themselves with people that are smarter than they are because they have been trained to believe that they are the smartest.
That’s a Henry Ford quote if I’m not mistaken. Henry Ford didn’t do necessarily anything exceptional. But he just surrounded himself with exceptional people that helped him build the empire that he did.
Well, that was actually- I just had passed adulthood and left the Lincoln administration when that company was formed.
Fair enough. We have a teeny, little bit of time left. And let’s go over to an article. Oh my gosh, could you find the most leftist source of information possible, Larry? And here’s this article from the Huffington Post about Facebook is still allowing mugshot even though they can ruin lives. What do you mean, they allow? I’m not on Facebook, so I don’t look at anything like this. This is just random posts about people and their mugshots end up on Facebook?
That’s what- I’m not on Facebook either- But I think that people just arbitrarily post them on their internal feeds and Facebook doesn’t have, apparently, any policy against that.
Does your local sheriff’s office then just post your mug shot up? “We booked this person over the weekend.” Like, that’s ridiculous.
Well, some sheriff’s offices do have a Facebook. I would say probably most of them do. Again, I’m not a big Facebook user. So I’m gonna sound kind of like I’m not informed on this. But as I understand it, most sheriff’s departments have Facebook and they do post that. They’re like the sheriff in Florida, he’s just so fond of outing people, and doing the most harm he can to people when they do their arrests and he gives his press conferences. But I think that’s what happens is the law enforcement agencies post things on Facebook.
Um, somebody in chat says, “Yup, my local prosecutor’s office post mug shots on their Facebook page.” And reading a paragraph in there says, “Mug shots typically contain or invite all of the above,” which was talking about all the problems that it causes, “Pages operated by people who cull mug shots from local sheriff’s department websites and repost them on Facebook attract 10s of 1000s of users who gleefully gawk at the arrest of people in their communities. Because the mugshot pages are location-specific, Facebook users often recognize the people in the mug shots and comment with intrusive commentary about their lives.” Doesn’t this fly in the face of anything of innocent until proven guilty?
It does. So does the perp walk.
Yeah, totally that. I knew that was coming next. And countries, if I’m not mistaken, France does not allow that stuff to be publicized at all, because it impairs the ability for you to get any sort of free trial.
You know, I’m not a big fan of totally restricting what can be done in a free country like this. But I only wish we could figure some way that when the police do that, when they do those walks, I wish at the conclusion at their press conference, they would say “And you have only heard our side of the story. And these people are presumed innocent until they have been proven guilty in a court of law.” You can watch all episodes of Dragnet. And they used to emphasize that. You’d hear that, at the beginning of the program, they’d do a disclaimer. “These are suspects, and they’re to be presumed innocent.” If the police would do that- because they are so quick. When one of theirs gets accused, they are so quick to remind us that we’ve only heard just- “You only saw a minute and a half of a video of what was a 22-minute encounter. There’s a whole lot more you don’t know about.” Well, okay, we agree. Why don’t you do the same thing? Why don’t you say, when the police are doing their thing, why don’t you say, “We have shown you this person at their worst. They’re presumed innocent. And they also probably have a story that they would like to tell.”
I gotcha. Okay. One other thing that I want to bring up there, do you think that it would be- like it would never sell- If the news is all about like, if it bleeds, it leads. And a perp walk and those things would be things that would be very enticing for people to watch. Do you think it would be possible to get them to push things that would say, “Hey, we posted this, and told you about this person that was arrested. Hey, they were found not guilty. They were exonerated,” all that stuff, like charges dropped, if that would be a regular part to then follow up on the thing that they lambasted you about a week ago…?
Well, what would be the mechanism that would require that? They’re not going to do that, because that doesn’t lead. It just doesn’t get the same excitement to say that someone was- unless that person is very popular, and people wanted them to beat the charge- but by and large, a regular mortal is charged with a crime, and there’s some technicalities as viewed by the population, that charges were dismissed, that doesn’t translate to innocence. So I just don’t see what would be the mechanism we would have to use the big ol’ bad government to require that, wouldn’t we? They’re not going to do that on volition.
I was hoping you would go there. So we’re gonna enact some kind of legislation, federal law that says, for you to have this FCC license to broadcast, then you also then have to state when you’re going to pull back on someone’s misdeeds, whatever. Not even misdeeds because they were found not guilty at the end of the whole thing. I just figured I’d ask.
Good luck on having those kinds of laws.
And then if you would be so kind, sir, and remind me which one of the one or two other ones… Because we have a couple minutes left before we have to close it all down, which one was the other one to cover?
The employers are opening opportunities for formerly incarcerated people.
I got this. All right. And I will read the headline. Employers opening opportunities to fill formerly incarcerated people to fill vacancies, because there is a massive labor shortage. This is coming from an NPR article. The hot job market has opened up opportunities for formerly incarcerated people who may have had a harder time finding work in the past. Some employers are even actively recruiting in jail. I can totally see that one as a job fair inside your local county jail.
So well, I put it in here to give people encouragement that, yes, the extra label that is attached is an additional barrier. But criminality is not a prohibition anymore, because we are just flat out of workers in this country. And we don’t seem to have the capacity to recognize that and to make any changes to our immigration system that will allow more workers to come in. We just dream that somehow or another that the old geezers that have retired are going to magically come back to work and that the teenagers are going to magically come back to work in the same ratio as they did in the 70s and 80s. And neither of those are likely to happen. And unless the birth rate dramatically increases, which that generally takes 16, 17, 18 years for that to work its way through to fruition where you’d actually have a person that would be introduced to the labor force, we have a labor shortage. It’s good for some because salaries are having to be adjusted higher. We’ve got Target and many companies, their minimum wages are now $15 an hour. And they’ve proven the Liberals wrong. The liberals said we’ve got to raise the minimum wage. Well, you know what? It raised itself. It raised itself. So this is Larry saying the Conservatives were right about something. The market fixed this, but it didn’t fix it well enough, because we’re so short on labor that the economy is going to sputter because it just can’t meet the production demands. Your shortages on the shelves are related to a labor force that doesn’t have enough capacity. Wake up to that. That’s the real problem. We don’t have enough people.
And so, like you just said, it would take a generation. It will take something of 20-ish years to create human capital in the United States from scratch. And that doesn’t really happen a whole lot. So I guess that means you have to open up the doors and let people in at some faster pace than they do. What’s the problem with work visas? Why is that such a- why can’t we let more work visas occur? Can you explain that one?
It’s political. The Democrats don’t want to let in too many workers because it’s a conspiracy to lower wages, to enrich corporations. And the Republicans don’t want to let more workers in because it’s a conspiracy to bring in more Democrat voters. So therefore, you have political impotence here. And I’m not talking about just having a parade of people crossing the border. I’m talking about there are people in countries that have waited five years, sometimes even more, that are trying to come in legally, that are on a waiting list because of the quota system that we have that hasn’t been changed since the 1980s. I’m talking about those people. We could increase those quotas for people that have been vetted and are on a waiting list. I am not advocating just opening the border and let them come. So don’t translate that into what I’m talking about. Controlled immigration, us deciding the type of workers we need, where the industries- basically, it’s across all sectors of the economy. But us figuring out some way with all of our brilliance of what an appropriate number of increased immigration is so that we can let our country thrive, rather than being short on labor. An economy that doesn’t have laborers is not a healthy condition. Just ask the Japanese. Just ask them. They have the same demographic challenge that we have, except it hit them 30 years ago. Ask them about how they have adapted to that. They have robots everywhere. They have seniors that are in extreme poverty, because they don’t have enough resources. You don’t have enough workers in a system where workers pay the taxes that support the retired generation. Unless you can start figuring out a way to tax the robots, this system will falter because we need the workers to extract the payments for those who need the benefits. I mean, it’s not that smart. As I say over and over again, it’s not that complicated. I’m not that smart. If I can figure it out, so can you
Have you heard- this is one of the most offensive things that I’ve heard lately- have you heard of something called replacement theory?
I’ve heard of that. Yes.
Oh, have you really? I wasn’t sure if you would have heard of it. I listened to like the most offensive storyline about this whole thing about the reasons why the Democrats want to let in people from south of the border is to dilute the vote with “obedient minorities.” And that was the term that Tucker used. And I was like “obedient minorities,” that is incredibly offensive.
Well, the funny thing is is that if you were watching the news this last week- and I know that you’re a big believer in polls- Biden and the Democratic Party, their support has fallen so low in the Hispanic population, which was a significant part of the most recent election. That’s just so ridiculous to say that they’re gonna vote for the Democratic Party. It’s just ridiculous. Just like saying prisoners vote for the Democratic Party. They don’t.
Right. All right, sir. You know, let’s see. I don’t even have that slide pulled up anymore. Anyway, I thought I did have a slide for Who’s that Speaker. All right. But I do not have a new one for this week. And I didn’t see that anybody guessed last weeks. I didn’t see anybody write in with that one. I might have to amend the podcast overnight if I find it. But last week, I played this one.
Supreme Court Justice Clarence Thomas 1:00:51
Who was it- Ben Franklin that said we gave you a republic if you can keep it. And I think that you have a court, and I hope you can keep it.
So, do you know who that is?
That was my brother-in-law.
Hahaha. It was definitely not your brother-in-law. Definitely not. That was a Supreme Court justice named Clarence Thomas.
How do you know he’s not my brother-in-law?
I’m pretty sure. I mean, I suppose… because Ketanji Brown Jackson, some brother-in-law somewhere in a very immediate chain of the family tree is like… Oh, that’s right. She’s somehow related by marriage to a Speaker of the House from like 2014. Paul Ryan, is that who that was? She’s related to him, like through marriage, whatever. So yeah, I guess it could be a brother-in-law.
So all right, well, we could use that clip earlier where, “I fail see what purpose that would serve,” and see if anybody knows who that speaker was.
Alright, that’s fine. We can, even though I think I may have said who that was. But people may… Yes, we can use that clip. That’d be just fine. If you knew who that clip was from like, an hour ago, then feel free.
We didn’t say who the person actually speaking was. But yeah, we gave a reference where it was said.
Alright, I’ll play it for you now. So if you knew who this is, then you can write in at firstname.lastname@example.org. If you post it on YouTube, there’s a significant chance I will not see who it is because someone keeps doing this. And it’s confusing.
Who’s that Speaker? 1:02:29
I fail to see what purpose that would serve.
So, there you go. If you want bonus points, you can tell me where it even comes from along with who the person is.
I’ll be surprised if anybody recognizes that voice.
I would be so too. Let’s see here, we did get a couple new snail mail subscribers. So thank you for subscribing for the transcript. And that is Roger and Neil. Roger is a guest in federal custody, and that’s really sad. And Neil is in military custody. Is Neil one of the people that is part of that whole crew that like distributes the show around and they like have a weekly meeting about it at Fort Leavenworth?
I think he is. And we have quite a collection of fans over in there. And I really appreciate it. I really appreciate that a lot.
That’s really fun. I mean, fun- Sorry, I didn’t mean it that way. I appreciate that you guys are doing all of that. And I’m very sorry for the condition that you’re in because it’s just terrible. Sorry about that. And Larry, is there anything else before we head on out of here? Anything you want to talk about at all?
No, I’m looking forward to if you have me back next week.
I might do that. I had someone else that showed up that looked like they had better credentials, and we’ll see if this whole work works out. I would like to mention something. I shared with you a very long email that one of our newer Patrons wrote wanting to support more. And I would just bring up that if you want to support at the $50 a month level, that that affords you an hour to talk with Larry if you want to. There are a number of ways that you could do this. You could go over to the FYP page and there’s a Donate button there. You can certainly increase your Patreon amount. You can do that for just one month. If you want to shoot the s–t with Larry, then that would open up that opportunity for you. And but otherwise, you could just be generous and just donate all your money. That would be fantastic, because Larry is looking for a way to support himself in his elder years in retirement. Right, Larry?
That’s right. And the podcast transcripts are really the thing that… It’s a drain financially because of the cost. As the number of subscribers go up, then the cost per unit goes down. The fixed costs- and we’re getting to economics here- but you’ve got the fixed costs and variable costs. And our transcriber, the labor doesn’t change, because you’re going through the same amount of content. So if that’s being spread over 100 people, it’s less cost. The fixed cost of how much you pay per ink and postage, those change according to the variables in postage and supply costs. But the more we can have support for that, both in subscribers and donations… because right now, it’s a losing proposition. We’re committed to doing it because we believe that it’s one of the best resources out there for people. At the end of the description of what was decided in the Court of Appeals in Indiana- although I don’t agree with it, I wish it hadn’t been that way- I hope that we’re able to communicate it to people in a way they can understand how the court reached its decision. And no one can do that. I mean, you read these things, and you don’t understand them. I think we broke it down as simple as it can be broken down.
Very good. All right, well, then you can find all the show notes over at registrymatters.co and FYPeducation.org. Leave a voicemail over at 747-227-4477. email@example.com if you want to shoot an email message over to me. And then finally the best way to support the program is through Patreon which is Patreon.com/registrymatters. And with that, Larry, I hope you have a phenomenal evening and the rest of your weekend. And I will talk to you very soon. And thank you guys very much for joining me in chat and the livestream. Otherwise, I will talk to you soon. Good night.
You have been listening to FYP.