Announcer 00:00
This episode of Registry Matters is brought to you by our patrons. Thank you for your continued loyalty and support.
Andy 00:08
Recording live from FYP Studios east and west, transmitting across the Internet, this is episode 314 of Registry Matters. Larry, what’s up?
Larry 00:18
The temperature, 100.
Andy 00:21
(laughs) Just 100?
Larry 00:22
That’s all.
Andy 00:24
You know, they did say this whole global warming thing was a “big pile of poopoo.”
Larry 00:29
I agree. It’s all liberal lefty scare tactics, all it is.
Andy 00:39
Chance, how are you tonight?
Chance 00:41
Oh, I’m good in this liberal lefty state. It’s really nice. Sun’s out, weather’s beautiful. Sorry about that, Larry. Sorry about that.
Andy 00:50
Larry, what do your right wing nut job people call it?
Larry 00:55
Call what?
Andy 00:55
What do they call California?
Larry 00:56
Oh, they have so many names…
Andy 00:59
Don’t they have a really nasty pejorative?
Larry 01:03
You talking about “the Californicators” and stuff like that? (all laugh)
Chance 01:09
Yeah, I know. Well, yeah, I know.
Andy 01:15
Well, just dive right in, Larry. What are we doing tonight?
Larry 01:20
We have a case from the Missouri Supreme Court, and it didn’t go well for the PFR community. And we have a brief follow-up from last week’s episode regarding banishment. We got a submission from someone, and he used an old email address I don’t look at very often, but I happened to look at it. So next time I’m going to suggest he use a different email address, which I’ll send him. We have an update about an ongoing case that’s out of Alabama. And it was argued and heard before the Eleventh Circuit Court of Appeals in Atlanta. And Chance is back with us this week so we have a press release from the National Association of Criminal Defense Lawyers, and I’m going to give him grief about that. It’s about Marsy’s Law. And then we will have a California Corner. And I don’t know what that California Corner is about. What’s that California Corner you got tonight? What are you talking about, Chance?
Chance 02:20
About progress. Progress in parole, progress in treatment. Good news for folks who want to finish off their treatment and get off of parole, good news.
Larry 02:32
All right, well, that’s what we’ve got going. And I deleted all the articles because I think with all this content, we’ll have enough to cover a sufficient amount of time. And I’m trying to shorten these episodes. Hint, hint.
Andy 02:45
I don’t know who you’re talking about, man.
Larry 03:11
You don’t?
Andy 03:11
No, of course not. (I do know.) Alright, well, then let’s go and move right into this first segment. And this is from, this is the one that you said came in to a funky email address. Came into my funky email address too. It says, “Thank you for the talk about the North Carolina case,” (that we covered last week), “but I’m a little confused by your definition of ‘banishment.’ You claim,” — Larry, listen — “you claim that the original meaning of the term in colonial times is not consistent with today’s residency restrictions as applied ex post facto. What is your basis for this claim?” Larry, my answer would be, you were there when they wrote it, right?
Larry 03:31
Good point!
Chance 03:31
(laughs) He was!
Andy 03:35
He continues, “Banishment is a very old term and appears, for example, in the famous novel, The Scarlet Letter, in which Hester is banished to the edge of town. She’s not forced to leave the colony. I understand that several U.S. states distinguish between intrastate and interstate banishment, but both are considered punishment, are they not?”
Larry 03:57
Well, it’s a good question. And by the way, when I discuss banishment, I’m not giving my definition. I’m given the definition as it has evolved through decades, millennia of jurisprudence. And I was tying it to “original interpretation.” And I’ve got this link that we’re going to make available that gives people a little bit more information on the history of banishment [Banishment | Encyclopedia.com https://www.encyclopedia.com/social-sciences-and-law/law/law/banishment – “During England’s colonial times, banishment and ‘transportation’ were common forms of punishment. Transportation involved the relocation of criminals to one of the colonies. In colonial America, Englishmen who married African American or Native American women were banished from their colony.”] But my key point was that banishment, as defined by the courts, means to prohibit a person’s presence. And it doesn’t have to be statewide, but the argument that was being put forth in that challenge was that the PFRs were being banished. And their own mapping expert testified, or at least presented evidence, that the range of exclusions were anywhere from like 42% to like 48.9% of the three largest cities in North Carolina.
Larry 05:02
That means that over half of all the housing stock available is open to PFRs, which means under that type of interpretation, they have not been banished, they have not been told to leave Raleigh or Durham or one of the large cities that were mentioned in that. There was Charlotte and I forget the other city. But they have the opportunity to live and be present, to conduct commerce. That’s not the same as banishment as it was understood back in those days. As he points out, the person was banished to the edge of town. But, under North Carolina law, they’re not ordered to leave town and never return. In fact, the record showed that they’re permitted to reside in more than half of the state’s three largest cities. Those who believe in original interpretation would and should be proud of the ruling, because nobody has been banished, as the word banishment was understood in colonial times.
Larry 06:01
And I was making that point, with a little tongue in cheek — because a lot of our audience proclaims that they are originalists, that they’re textualists, and these various iterations of being admirers of Justice Scalia and similar justices — that they should be happy when a ruling like this comes down, because Justice Scalia would be very proud that nobody tried to legislate from the bench. They did not do anything other than look at banishment as it was understood in colonial times. And they said, “Hmm, there’s no banishment here. Over half of all this housing stock in these three large cities is available for offenders, so nobody’s been banished.”
Andy 06:42
I recall when Paul Dubbeling put the map up on the screen, I don’t remember which conference it was, but it showed all the big circles of where they can and can’t be. I do recall that one of them went over, maybe there’s like a child daycare at, like the voting office and the state capitol, something like that. So, like, you’re not allowed to go to the state capitol! And I recall you saying something to the effect of, “I’ll be damned if I’m not going to go redress my grievances with the government. That’s a First Amendment thing right there.”
Larry 07:15
Well, I’m not good on the amendments, but it is a basic constitutional, fundamental right that you have, to seek redress in a democratic society, even if you’re not a voter. This is a misunderstanding for so many people: Even if you don’t vote, you can still have grievances against the government, and you’re permitted to participate in the process. When you go into a legislative session, they don’t ask you if you’re a voter. They don’t ask you for your voter id card.
Larry 07:43
They don’t do any of those things because lawmakers represent everyone. They represent convicted felons who are barred from voting, they represent people who are in prison, they represent people who are confined to mental institutions, they represent school children. They represent a lot of non-voters. They’re the spokesperson for everybody. So I would be very hesitant to honor that law. If I felt like I couldn’t go to the Capitol, I would almost want to make a point, “I damn well can go to the Capitol!” and I’d align myself with some resources if I had the ability, and I would go, and I’d let the chips fall as they may.
Andy 08:22
How about, is there a legal definition of banishment, maybe? …Chance?
Chance 08:31
I don’t think so. You know, I haven’t ever thought about that. I’d have to research that actually.
Andy 08:44
Like, I think if we compare it to with like 2500-foot restrictions, maybe in Florida, where with circles drawn that big around all kinds of things like they do in Florida that you end up with these tiny little pockets where that tent city is that they cover in the film, The Untouchables, where all the circles, the Venn Diagram goes around and there’s this industrial park where there’s so little of anything around it that they’ve set up a tent encampment (but then they go raid the tent encampment, but that’s not the part I’m really talking about). But they’re far enough out of the way of everything that that’s the only place that they can effectively be, by comparison with what Paul Dubbeling put up, is like 50% of the town is unavailable? But that still leaves you the other 50%. Something like that. I did this same sort of thing in Georgia, trying to figure out where I could go target, trying to figure out where I could live with the thousand foot restrictions in Georgia. And sure, you draw a thousand foot circle around every church, school, daycare and stuff. There’s still huge swaths of area where you can live. There might not be houses there, but you’re not banished.
Larry 09:53
That is correct.
Chance 09:55
Yeah, that’s probably technically correct. But the whole idea of the culmination of all these things is banishment. I mean, let’s be honest. Intellectually, we could parse these things, but the fact is, is that there are so many levels to banishment. And in order to really come to a firm definition, it’d be like playing 3D chess. We’d have to look at it in so many different ways. I mean, what’s the sum total of all of it? It’s really social banishment, and it really is done in so many other ways. But we’re talking here about physical banishment and sometimes, you know, you’re pushed to the limit. You actually are pushed to the edge of town or to a little hole or to a little place under a bridge. And you know, that’s pretty much what the sum total of it is.
Larry 10:47
True, Chance. But the point I’m trying to make with people is that if you’re really proud of your conservative interpretation, judicial philosophy, you should be happy with these outcomes, because this is in alignment with a conservative approach to interpreting the constitution. If you’re an originalist, if you believe in originalism like Scalia, and many people that like to assimilate with him, and say that, you know, “He’s my type of judge,” then this would make your heart race ahead, because this is great stuff! But if you believe in the evolving standards of decency, which was something that was coined under the leadership of Chief Justice Earl Warren, then you would want to elect people who will appoint a different type of Justice to the Supreme Court and to the courts of appeals around the country. But this is a rational interpretation. I’m not knocking Scalia. I’m just saying that this is in alignment with that type of interpretation. If you vote for these people, don’t be shocked when they put this type of person in judicial office, because the presidents appoint the federal trial judges, the court of appeals, and the Supreme Court Justices. The only part of the federal judiciary that’s not appointed by the president is the magistrate judges. But everything else requires a presidential appointment.
Chance 12:20
Yeah, I think you’d be correct there. And in that interpretation, certainly, certainly.
Andy 12:39
Moving along, then. Well, let’s see here, you have this news release that you want to discuss. And it states, “New report from Nation’s Criminal Defense Bar outlines how Marsy’s Law undermines the criminal legal system” [NACDL News Release: Marsy’s Law Report https://www.nacdl.org/newsrelease/News-Release-~-Marsy-s-Law-Report]. I can’t wait to hear this. I saw TV commercials with Kelsey Grammer, the guy that played Frasier, talking about how, “We need to have Marsy’s Law, and give victims rights,” and blah, blah, blah, back when they were trying to push this through.
Larry 13:18
Well, my sinister motivation is twofold. First, I want to poke at Chance a little bit, because this stems from California I think, originally. But also I want to try to illuminate for people who just, they want so badly for NARSOL to work with the victims’ organizations. We are not on the same team. We sit on opposite sides of the courtroom. They’re trying to put you in a cage, we’re trying to keep you out of the cage. Would that be a fair assessment, Chance?
Chance 13:51
Yes, that would be a fair assessment, correct.
Larry 13:54
So get over it. We’re not on the same team. But anyway, the article states, quote, “A new report from the National Association of Criminal Defense Lawyers, NACDL, outlines the ways in which Marsy’s Law, the colloquial name for The Model Victims’ Bill of Rights undermines fundamental due process rights — I couldn’t help myself, because Chance is here — The article states that Marsy’s Law was first passed in California in 2008 and is now adopted in twelve states. Marsy’s Law enshrines victims’ rights within states’ constitutions.
Andy 14:28
Come on, Larry, you have to think that this is something that would be good. So what’s your beef with this?
Larry 14:34
Well, the article actually eloquently identifies my beef. The article states, “At a fundamental level, the law has subverted the role of the criminal legal system and conflated prosecutors’ responsibility to the State with an untenable responsibility to individual victims. Marsy’s Law expands the definition of a victim and the scope of victimhood, and its provisions include the right to notification, the right to be heard, the right to privacy, and the right to restitution.” In my opinion, victims are mere witnesses in a criminal proceeding. They do not own the case. The case is The People of the State of California, or The People of the State of Maryland. You are a mere witness in the proceeding, and they have bestowed too many rights on the victims. That is my beef.
Andy 15:22
The report, which is authored by Professor Ráchael – would that be “Rachel” or “Rachelle”? I guess it’s… any thoughts?
Larry 15:31
Not sure.
Andy 15:32
All right.
Chance 15:32
Yep. That’s it. That’s it.
Andy 15:34
All right, so, “Ráchael Powers and Jacqueline Berkeley find that, among other impacts, these provisions waste valuable system resources, delay proceedings, interfere with appropriate case disposition, reduce access to critical discovery and testimony, limit police accountability, and create untenable restitution conditions for defendants.” Can you highlight the key findings there, please, sir?
Larry 15:59
Sure. According to the report, “Rights attach ‘at the point of victimization’, implying that the accused person, who should be presumed innocent until proven guilty, is now presumed guilty. Marsy’s Law prioritizes speedy outcomes and convictions over the administration of justice. The right of a victim to refuse disclosure of relevant documents and pretrial interviews hampers the ability of defense attorneys to investigate.” Now, Chance could definitely relate to that. “A defendant’s financial situation is no longer considered in restitution, creating financial burdens that increase collateral consequences, the expansion of who is considered a victim, the requirements to notify the victim of all proceedings, and the right for the victim to be heard and confer with the prosecution has overburdened the legal system.” And again, that is my beef. Because you are a witness. This is not “your” case. Anyway, Chase, you can jump in here as a defense attorney if you want to, about how this impairs your practice, if it does.
Chance 16:57
Well, I would agree with the report’s findings. I’ve never agreed with Marsy’s Law. It really emanated out of law enforcement and the district attorney’s office. I do know who helped write it. I would agree with the report’s findings, especially access to an effective defense. I mean, Marsy’s Law allows for the victim to refuse any pretrial interviews, depositions, and disclosure of relevant documents, including medical and psychological records that establish injury as a result of victimization, and other exculpatory evidence. As the report states, “Without this evidence, defense attorneys are not able to fully investigate the case.” You’ve said it, the court says it, everybody says it. I also believe that these restrictions impede a defendant’s right to effective assistance of counsel, which is a potential Sixth Amendment violation. I do think it’s of constitutional magnitude.
Andy 17:48
Hey, Larry, can I just kind of jump in and ask a question? Wouldn’t this fly in the face of what Scalia had said about, “You have a right to face your accuser”, whatever that whole thing was about?
Larry 18:01
In my opinion, yes. And I give Scalia credit in that area. He was one of the strongest, in terms of the Confrontation Clause of the Sixth Amendment, of any justice that comes to mind. But it makes it impossible for us to do our jobs on the defense side when the doors are shut by a constitutional amendment that the voters have adopted, and we can’t… I had an advocate a year or so ago, a case was won in Connecticut or someplace up in the northeast, and she said, “This just goes to show you’ve got to have the courage to take these cases to trial.” And I looked at the case and I saw all the things that they did. I said, “We would never be allowed to do those things here. We would never be allowed to do that.”
Larry 18:45
So, but anyway, I agree with NACDL President Christopher Wellborn, who stated, “While victims deserve to be treated with compassion and dignity, Marsy’s Law puts the needs of victims above those of the accused, limiting the constitutional mandate of a robust defense, upending the notion of “innocent unless proven guilty”, and prioritizing victims’ desired case outcomes over true justice.” Remember: The tie goes to the accused. We would rather — what is it? — a hundred guilty go free than one innocent person be put in jail? The person who is going to be put in the cage is the one who we have to protect most of all, because that cage is hard to open if they’re put in it unjustly and incorrectly. It’s very hard to undo a conviction. Chance, would you agree with that?
Chance 19:38
Oh, yeah, I certainly would, strongly. And I hold the same position.
Andy 19:45
The NACDL executive director, Lisa Wayne, stated, “Marsy’s Law is fundamentally incompatible with constitutional principles of fairness.” She went on to say, “Our system affords individuals charged with crimes constitutional protections against the powers of the government. Measures which erode these protections impact every facet of our criminal legal system, leading to increased use of pretrial detention, lack of confidentiality for juvenile defendants, more collateral consequences associated with convictions, limited parole opportunities and wrongful convictions. They mire the state in administrative bureaucracy, delaying trials, imposing financial burdens, and wasting taxpayer dollars. We therefore call on the public and elected officials to oppose Marsy’s Law.” I gotta think that you are going to agree with that even though you’re Mr. I-don’t-agree-with-anything. But do you?
Larry 20:39
I do actually agree fully with both NACDL officials and give them kudos for issuing the statement. And I think Chance kind of agrees as well, right?
Chance 20:49
I do. I do.
Andy 20:51
This is the organization that would be lobbying for this kind of thing. They are, you know, they’re in this camp.
Larry 20:59
But at least they’re saying it. Everybody rolls over, when it comes to Marsy’s Law, the Victims’ Bill of Rights and stuff. The lawmakers, they hear these tearful testimonials in the legislature about something bad that happened. And bad things do happen to people. People get victimized, and the system breaks down, and cases fall through the cracks, and things that are very frustrating happen. But at the end of the day, our commitment as a society is to keep innocent people from being put behind bars until we have that proof beyond a reasonable doubt. And if we make it so that you can’t put on a robust defense, then you can convict anybody!
Andy 21:46
And what do you say to the advocates? Wasn’t it six months ago that someone called you to the mat on this thing and he was like, “Well, I’m not supporting you guys anymore because you don’t support victims’ advocacy.” But what do you say to the idea that this person on the witness list, that is essentially a witness and is part of the case now, that has had something bad happen to them? What do you say to them that they’ve had a wrong done, and justice needs to be served, etc. etc.? Like, don’t they, don’t we need to have some compassion and thought for them in the process too?
Larry 22:23
Well, we do. We treat them with kindness, and we convey that we’re sorry as a society that something bad happened to them. But we shouldn’t assume that something bad happened. I know it’s a shocker to some, but people make false accusations.
Andy 22:39
What?!?
Larry 22:40
We have to validate the veracity of the allegation, which is one of the things that Marsy’s Law takes away from us. We’re supposed to assume that any assertion made by someone is true, and that’s ridiculous!
Chance 23:03
It is ridiculous. You know, all those protections are built into the system anyway. I mean, there’s all kinds of things that can be done to protect victims without impeding on the constitutional rights of defendants. The balance is struck in and of itself. This is a — this is a hack (laughs) to really disable the defense, in cases involving Marsy’s Law. The Victims’ Bill of Rights is kind of a hack to get around a person’s full enjoyment of their Sixth Amendment right to counsel. It’s great that so few states buy into this, but for those states who do, it’s a problem.
Larry 23:52
We’ve managed to prevent it from passing here, but it comes up almost every session. And they’re very powerful because the testimony they put on is very emotional. It’s hard to have 112 lawmakers looking and saying, “We’re going to vote no on this,” when you’ve got all these people that are boo-hooing about how they’ve been screwed over and the system doesn’t care about their rights. And I’m saying, “Well, wait a minute, you really don’t have any rights under the constitution. You are a witness.” “But Larry, I was a victim.” “You are a witness.” They just get crazy when I tell them, “You are a witness in a criminal proceeding.” Have I missed anything, Chance? Is a victim anything more than a witness?
Chance 24:33
Well, yeah, no, they are a witness. And if they need certain protections, the protections are built in. You can protect them. There are all kinds of orders that can be done. They get their say. When a person is sentenced, they make an impact statement. There’s all kinds of things they get anyway. Those are built in. This is just over the top. You don’t need this. This is a hack.
Andy 24:58
Let me ask one more question, probably more directed at you, Chance. When you go into the courtroom and you are afforded the opportunity to cross examine, don’t you kind of have to play, in certain circumstances, don’t you have to play hardball to get the person to trip up on their statement, to create the level of doubt?
Chance 25:21
Well, certainly you do. You have to shift gears, and sometimes you have to play hardball, and sometimes you don’t. But even before you get the chance to do it, if you’re limited in what you know, how are you going to know what to do? How are you going to know how to defend? How are you going to know where to go in your cross? Where are the weaknesses? What do you exploit? You’re kinda crippled when you go to cross examine in the first place. How do you do that?
Andy 25:48
The question frequently comes up about this particular part of it. If you are going to challenge them on the statements that have been made, the accusations that have been made, that then you’re “re-victimizing” them by having them go over it again. But how would you be able to do this, and maybe expose weaknesses in the story, flaws, without having them go back over it?
Chance 26:13
Yeah, that is a huge problem. I have to say, though, that in cases I’ve been involved with, I really haven’t seen the assertion here, too much, of these things. In California, we’ve kind of ironed these things out, you know, so that they don’t really impede in these trials. And that’s why I’m looking at this, and when I read it, it bothers me in a different way. It has kind of led into post-conviction, you know, which is where it does not belong, if anywhere. It’s in a place now where it’s totally disconnected, but judges think it’s law and can apply it at any phase, and it’s just, it’s not relevant in post-conviction.
Andy 27:02
Let’s move over to this Courthouse News article from the Eleventh Circuit of appeals. [Eleventh Circuit appears wary to reinstate Alabama sex offender restrictions – https://www.courthousenews.com/11th-circuit-appears-wary-to-reinstate-alabama-sex-offender-restrictions/ ] And it states, “A panel of the Eleventh Circuit judges seemed unconvinced on Tuesday that Alabama should be allowed to reinstate an unequivocal ban on child PFRs living with their children.” And what’s this about?
Larry 27:26
We discussed this back in January on RM episode 289. The case is Henry vs Abernathy. Bruce Henry wants to live under the same roof as his young son – Imagine that! – but he’s bound by Alabama Code 15-20A-11, subsection (d)(4) [§15-20A-11(d)(4)], that says: “No adult PFR shall reside or conduct an overnight visit with a minor, including the offender’s own children, if the PFR has been convicted of any offense involving a child” (and I’m assuming that “child” is defined as anyone under 18). The law automatically applies to cases like Henry’s — without a hearing — imposing “a lifetime, non-appealable ban on living with one’s own children based solely on the fact of a qualifying conviction.” And that’s what was written in the brief.
Andy 28:20
You know, I have a lot of uh, very distasteful jokes about the age that they would call a minor in Alabama, versus the age of marriage, so to speak? You know, Larry, I read — okay, this is completely off the rails, but — I read an article recently about that I think there are three states in the United States that there’s no minimum age of marriage?
Larry 28:47
Could be, but that’s also changing. There’s a move to make sure that, I mean, the victims’ advocates are trying to bust up the holy matrimony of marriage and make sure that only certain people can get married.
Andy 28:59
I know, but can you imagine? You’re five and you’re getting married?
Larry 29:03
Yeah, but nobody ever did that. You’re being silly. (Chance laughs)
Andy 29:07
But there’s at least – anyhoo – all right, so anyway, that was just a little bit of a tangent, sorry. All right. And then in January of 2024, U.S. District Court Judge R. Austin Huffaker,” — Hoffacher, Hofacker? That’s a terrible name — “a Donald Trump appointee, agreed. He issued a memorandum and order, partly granting Henry’s summary judgment and declaring the law facially unconstitutional. [The judge] enjoined the state from enforcing the law as it was written.” Sorry, I don’t want to say that name again because it sounds way too like a set of characters in the movie Meet the Parents.
Larry 29:43
So the case is now before a three-judge panel of the Eleventh Circuit. The state is fighting tooth and nail. Alabama Solicitor General Edmund LaCour insisted Huffaker’s injunction was unconstitutional and ignored the state’s “interest in trying to prevent these harms occurring to children, both by punishing those offenders who were caught, and by preventing that harm from happening in the first place.” That sounds like a bunch of hyperbole, but that is your Alabama Solicitor General making that argument.
Andy 30:15
U.S. Circuit Judge Robin S. Rosenbaum — a Barack Obama appointee! — almost immediately interjected that few could argue against preventing or punishing child abuse. But, Rosenbaum said, the statute seemed to be “both over-inclusive and under-inclusive,” and crucially, “there is no exit door.” Judge Rosenbaum stated, “There are so many ways that this could have been tailored better to avoid this problem.” Do you agree, Larry?
Larry 30:43
I do. Also, U.S. Circuit Judge Nancy Abudu, a Joe Biden appointee, questioned the law’s logic that while offenders can’t be alone overnight with a minor child, they can have unsupervised visitation between 1 and 4 p.m. Now, you gotta admit that’s funny. Justice Abudu stated, “We know nationally, generally, that child abuse happens all times of the day.” She asked, “How does this provision in the statute protect a child during the daytime hours from being assaulted? The answer is it doesn’t,” she said.
Chance 31:19
Wow.
Andy 31:24
Solicitor LaCour acknowledged problems with the law, but he added that Huffaker’s injunction also prohibits the state from applying the law against any parents, no matter how egregious their offense.
Larry 31:38
Well, U.S. Circuit Judge – on the panel also – Charles Wilson, a Bill Clinton appointee, said that Huffaker’s order emphasized the unconstitutional nature of the lifetime ban without a hearing. LaCour also argued the law was narrowly tailored.( I’d like to hear that argument) and supported by evidence that the sex offenders are likely to reoffend. But he conceded that the district court may have been correct with some of its findings. LaCour stated, “At a minimum, this board” — I think he means “this panel” — “needs to reverse to the extent that the injunction applies to non-parents,” he said to the three-judge panel, “There’s no basis whatsoever to apply the injunction and prohibit us from applying the law to people who have no parental rights at all. Mr. Henry brought this only as a parental rights challenge.” Now, he might have a point on that. I’ll give that to him. If it’s only about parental rights, then grandparents and everybody else are not involved in it.
Andy 32:43
Henry’s attorney, Paul M. Dubbeling, said the issue is not whether convicted PFRs have a constitutional right to live with their children. Rather, he said, the state has other methods to protect minors. He said, the law at issue simply, “does not pass strict scrutiny.”
Larry 33:03
He did say that, but Judge Wilson asked Dubbeling to defend his facial challenge of the law using the standard set in United States vs Salerno, which requires a challenger to meet a high burden showing “that no circumstances exist under which the statute would be valid.” Now, Salerno was a challenge to the Bail Reform Act of 1984, and I think the U.S. Supreme Court decided Salerno in ’87, and they established that standard, that “no set of circumstances” is what it takes to win a facial invalidation (meaning that the law is found unconstitutional “on it’s face,” and so, for everyone, as opposed to just being found unconstitutional as-applied to to the particular person that brought the case).
Andy 33:37
How did Dubbeling respond to the question?
Larry 33:41
Dubbeling said, “In the 35 years since Salerno was decided, no court has taken that language and said that the existence of a hypothetically valid application of the statute would relieve the state of its burden under the means/ends analysis of strict scrutiny.” He disagreed that the law could be warranted in some circumstances. Dubbeling said, “The U.S. Supreme Court has recognized a Fourteenth Amendment right to “the care, custody and control of one’s children,” as well as a First Amendment “right of association to cohabitate with one’s relatives.” I think he’s a little bit over the top on that, but that’s what he said.
Andy 34:15
Judge Abutu said, “It does seem like there is room, if someone has been convicted of a PFR type crime, for their rights to be stripped away.” She noted the Supreme Court has found that convicted felons can lose the right to own firearms, vote and run for office in some cases. But what about that?
Larry 34:33
Well, Dubbeling agreed with that, but he added, “There’s no sanction in Supreme Court precedent for taking away a fundamental right of a family, a First Amendment value, based on the status of a felon. And I’m not sure I know what that means. But he said “The remedy for a statute that fails strict scrutiny, is facial invalidation of the statute.” and I definitely don’t agree with that. Dubbeling said, “In this case, it is the legislature that needs to go back and decide how to handle this.”
Andy 35:00
Do you think that the Eleventh Circuit will uphold the trial court?
Larry 35:05
I certainly hope they do, and I believe they will. But unfortunately, under the standards of Salerno, it makes it almost impossible for them to not to have some doubt. And if there’s no set of circumstances that this could be a valid imposition by the state of Alabama, I think everybody tacitly admitted there might be a PFR type of offender where their parental rights could be legitimately terminated. But my answer to that would be that you need to go through that process of terminating their parental rights. There is a process, and I’m sure that even Alabama has it, as backwards as they are. (Andy laughs) There’s a process for taking away children. You know, we have something that we call Children, Youth and Families, but you have some sort of child protective services that would come in and take away the children. So my argument would have been that there’s a process to do that already.
Larry 36:05
But anyway, the standard for facial unconstitutionality is that there’s no set of circumstances that a law could be valid. Dubbeling appears to have conceded that there may be circumstances where this would be constitutional. This could mean a loss on the facial invalidation that he won at the trial court, and it may be that the case gets remanded for an as-applied constitutional challenge analysis. And that’s probably something Chance could get in and dig a little deeper than I’ve done. But I think there is some wiggle room for them to return this case, and not affirm the trial court.
Chance 36:37
Yeah, yeah, perhaps, perhaps. But you know, that concession is pretty big. That concession is pretty big.
Andy 36:44
I can think of a scenario where I don’t think you would find very many people would disagree with removing someone’s parental rights. I’m just going to say the name Andrea Yates, and if you don’t know who that is, go look up the news, because it’s horrible. But I believe that most people would agree that under that kind of circumstances it would be appropriate to remove a person’s parental rights. Would you all agree?
Larry 37:07
I would agree with that. I know who you’re talking about. But the problem that we have here is this is a statutory deprivation without any due process. It’s a categorical determination based on the conviction. And Mr. Dubbeling is asserting that it’s facially unconstitutional. There may be a tad bit of wiggle room there because under that analysis of Salerno, there has to be no set of circumstances where this could be validly done. There are circumstances where it could be validly done. It would be rare ones like Yates and like some extreme cases, but I would have wanted to have argued that those processes already exist. There’s a process to remove children. We don’t need it to be in the PFR statute. There’s already a robust process to take away children.
Andy 37:54
I get you. I get you. Yeah. I just want to make sure that it was said, there are circumstances where, I think most people would agree, but this is the difference of it just being that the lawmaker said, “If you get convicted of this crime, this is one of the side effects of it, that you are not allowed to be around your children.” That’s how it is in Georgia, at least while you’re– is that part of probation, or is that part of the statute?
Larry 38:21
That’s one of the special conditions of probation. This is a part of a state statute applying to registrants. It’s crazy, but a lot of crazy stuff comes out of Alabama. But remember, southerners think of themselves as being far more sophisticated, and they have far more common sense than the rest of the country, and they pride themselves on their brilliance.
Andy 38:41
Somebody told me that more presidents have been elected from the south than the North, Larry.
Larry 38:45
That’s what I’m telling you, they’re smarter than the rest of the country!
Andy 38:50
(laughs) Very well. Well, then we have this case from the Missouri Supreme Court, and it’s John Doe vs Eric T. Olson, No. SC100296. What is all this hoopla about?
Larry 39:05
Well, John Doe appealed the circuit court’s judgment — that’s a trial level court of Missouri — finding that the registration requirements of the Missouri Sex Offender Registry Act, MO-SORA, do not violate Mr. Doe’s substantive due process rights or the prohibition on the ex post facto laws in Missouri.
Andy 39:25
Now, in the opening paragraph, the decision states, “Because Doe has no fundamental right to privacy in the information the registry requires him to disclose, and the registry is rationally related to the legitimate state interests of protecting children, the registry does not violate Doe’s substantive due process rights. Because the registration requirements are civil in nature, the registry does not violate the prohibition on ex post facto law.” Right out of the gate, I can see that this did not go well.
Larry 39:59
It did not. The Missouri Supreme Court affirmed the circuit court’s judgment.
Andy 40:04
Do you mind if I set this up, on how this all started?
Larry 40:07
I think that would be helpful because this case goes back for decades.
Andy 40:11
So back when you were a child, so this is in 1997. I’m just kidding. You were way, way older than a child in ’97, Doe pleaded guilty to two Class C felonies, deviate sexual assault in the first degree and sexual assault in the first degree. The circuit court suspended Doe’s sentence and placed him on probation for five years, and Doe registered as a PFR pursuant to the MO-SORA. And then in 2002, Doe completed his probation requirements and the circuit court sealed Doe’s criminal case records pursuant to the Missouri law, which closed his official case records because imposition of sentence was suspended, and the case was finally terminated. Doe has remained on the PFR list since his guilty plea. This is – god, that’s really old.
Larry 40:58
It is. And the registry has been amended numerous times since then. The legislature amended MO-SORA several times, imposing more onerous registration reporting requirements. Doe had finally had enough. In 2022, he filed his third amended petition for declaratory and injunctive relief against St. Louis County Sheriff and a Missouri Highway Patrol Superintendent seeking removal from the PFR registry. Doe claimed that the amendments to MO-SORA after his plea required him to disclose information from his sealed record which infringes on his rights to privacy and a substantive due process violation of the Fourteenth Amendment of the United States Constitution, and article 1, section 10 of the Missouri Constitution. Doe also claimed that the amendments render MO-SORA a punitive ex post facto law in violation of the Fourteenth Amendment, article 1, section 9 of the United States Constitution, and a similar provision in the Missouri Constitution.
Andy 41:52
Doe argued he has a fundamental right to privacy in information MO-SORA requires him to disclose because the records relating to his criminal case were sealed by the circuit court. How did that go?
Larry 42:05
Uh, not well. They stated, “This court previously addressed a similar due process challenge to the registry. While this court generally acknowledged that ‘the right to privacy is fundamental,’ it ultimately found that the petitioning PFRs, whose records had not been sealed, had no fundamental right to privacy in information already in the public domain. Doe freely admitted his guilt in open court and the information contained in the record was public for five years prior to being sealed. Sealing a record does not prevent information related to the convictions from remaining in the public domain. The circuit court sealing the record does not nullify the historical fact that Doe pleaded guilty to a felony.” Doe has no fundamental right to privacy in information contained in his sealed records. Can you at least admit that this is funny?
Andy 42:50
This is not funny. This is the opposite of funny! (Larry laughs) So, Doe also claimed that MO-SORA violates the constitutional prohibition on ex post facto laws. The United States and Missouri Constitution both prohibit ex post facto laws. A constitutionally prohibited ex post facto law is one that provides for punishment for an act that was not punishable when it was committed, or that imposes an additional punishment to that in effect at the time the act was committed. Now, what burden? I guess it would be burden of proof. What does he have to do to prove this?
Larry 43:25
Well, it’s Doe’s burden to show the law is unconstitutional, and they cited a case, Sanders 168 Southwest third at 68 [168 S.W.3d at 68.], holding that “The registration statutes will be upheld unless they ‘clearly and undoubtedly’ violate constitutional limitations.” So it’s a pretty heavy lift.
Andy 43:45
The court then stated, “A two-stage inquiry determines whether a retrospective statute constitutes an invalid ex post facto punishment or a valid, non-punitive civil regulation.” The first stage of the inquiry examines the intent of the statute. “If registration statutes were intended to establish a punishment, the inquiry ends and an ex post facto violation is established. If the registration statutes are intended to establish a non-punitive civil regulatory system, the inquiry proceeds to a determination of whether the registration statutes are sufficiently punitive in effect so as to negate the General Assembly’s intent to enact a non-punitive civil PFR registration program.” They always get past the first stage, though. What’s the second stage of the process?
Larry 44:32
During the second stage of the inquiry, because they’re always going to determine the legislature intended to be remedial and not punitive. To determine if MO-SORA is civil or punitive, the court must analyze the five factors. And those are the factors we’ve talked about many times, the Kennedy Mendoza-Martinez factors. And there’s actually seven, but this court, like so many, are just looking at five. And they are:
(1) whether the registration requirements have been regarded in our history and traditions as punishment;
(2) whether the registration requirements promote their judicial aims of punishment;
(3) whether the registration requirements impose an affirmative disability or restraint (my favorite);
(4) whether the registration requirements have a connection to a non-punitive purpose; and
(5) whether the requirements are excessive with respect to that non-punitive purpose.
Andy 45:22
Doe alleges amendments made to MO-SORA after this court’s holdings in Sanders have substantially changed the registration requirements, rendering MO-SORA punitive in violation of the prohibition against ex post facto law. Doe takes issue with the following changes: redefining the classification of offenses requiring Tier III offenders to register for life, mandating 90-day reporting, requiring reporting in person to disclose any changes in registration information, mandating offenders to provide a DNA sample, adding requirements to the information offenders must disclose, and publishing more information about offenders online. What did the court hold on the first factor, whether the registration requirements have been regarded in our history and traditions as punishment?
Larry 46:10
Well, they decided that, “While MO-SORA may require-in person reporting every 90 days, and in-person reporting to make amendments to information on the registry, these amendments are not so significant as to physically confine or constrain the movement of Doe akin to traditional punishment such as incarceration or probation. This court finds MO-SORA’s registration requirements are distinguishable from traditional notions of punishment.” Now remember, if you are an originalist, and you believe what you say you believe, you would be applauding this. Because, traditionally, punishment in colonial times was not viewed as these administrative things. Punishment was thought of as putting someone in jail. There wasn’t even probation in colonial times, much less this civil regulatory scheme. So if you believe in literal, textual and original interpretation, this should make you very happy.
Andy 47:10
So then, on the second factor though, “the traditional aims of punishment,” what did the court conclude with that arrangement there?
Larry 47:19
Well, very similar: “To the extent MO-SORA imposes longer registration requirements on registrants based on the severity of their offense, these requirements are reasonably related to the danger of recidivism. While MO-SORA may serve the traditional aims of punishment, these aims are related to regulatory objectives.” So that one they got shot down, so two out of five are already dead.
Andy 47:42
(laughs) And the next one is your favorite. What do they conclude regarding “affirmative disability and restraint?”
Larry 47:49
They said, This Court must determine whether MO-SORA imposes an affirmative disability or restraint on registrants. This Court has previously held there is no affirmative disability or restraint on the registrant even though they’re required to provide “fingerprints, photograph and written information concerning the offender and the underlying offense” because registrants are “otherwise free to travel and go about their daily activities with no additional intrusion from government officials.” And again, they cited Sanders. Providing a DNA sample and reporting in person does not impede the ability of the registrant to travel or go about daily activities any more than previous requirements. This Court sees no reason to depart from our previous analysis. MO-SORA is not an affirmative disability or restraint.
Andy 48:32
And then what about the “rational connection to a non-punitive purpose?”
Larry 48:39
The court stated, “Factor four, MO-SORA’s rational connection to a non-punitive purpose is the most significant factor” — now that’s the court speaking, for them — “in determining whether the statutes effects are punitive. This Court continues to find registration requirements are rationally related to the purpose of public safety and protecting children from PFRs.”
Andy 49:02
That’s totally not really looking good for us here. Only one factor to go. What did the court hold in the fifth factor? Did they find excessiveness with respect to the purpose?
Larry 49:14
Well, Doe contended that MO-SORA is excessive because SORNA would allow him to seek removal (and he’s talking about the national SORNA, that would allow him to seek removal from the registry). The court held, “States are not required to adopt the exact same standards in their PFR registry scheme as laid out in federal SORNA. Federal SORNA leaves the intrastate sex offender registry to the states, and concentrates SORNA’s regulation on the national coordinated system which identifies interstate movement of PFRs. The Ex Post Facto Clause does not preclude a state from making reasonable categorical judgments that conviction for specified crimes should entail particular regulatory consequences.” And they even cited Smith vs Doe at 538 US at 103 [538 U.S. at 103]. “The state’s determination to legislate with respect to convicted PFRs as a class, rather than to require individual determination of their dangerousness, does not make the statute punishment under the Ex-Post Facto Clause.”
Andy 50:17
You know, I almost read in there, Larry, that it sounds like they have confirmed that there’s not a federal duty to register.
Larry 50:26
They have done that. Anybody that listens to this podcast, and I pretty much can guarantee you most Supreme Courts and their law clerks do.
Andy 50:33
(laughs) Really? You think so?
Larry 50:36
I’m fairly certain that they do. But there is no federal registry. It’s a state registry. And they’ve said that in this decision here.
Andy 50:47
We shall move along then, and bring in the heavyweight champion of California. And so we’re going to go over this lawsuit that ACSOL filed against the California Department of Corrections and Rehabilitation and the implications of this new regulation. So here we are with Chance’s California Corner, the part of our podcast where we break down the legal issues in California and their impact on PFRs who live there. Chance, are you ready?
Chance 51:15
Absolutely. And Larry’s going to jump in as well.
Andy 51:19
Fantastic. So we’re going to discuss a significant lawsuit filed by ACSOL, which is the Alliance for Constitutional Sex Offender Laws, otherwise known as ACSOL, against the California Department of Corrections and Rehabilitation, commonly known as CDCR. This lawsuit challenges CDCR’s unofficial policy of retaining parolees in a treatment program for the entire duration of their parole. Chance, would you please give us a bit of background on the case?
Chance 51:50
Sure, Andy. The lawsuit was filed because CDCR had an apparent unwritten policy that required parolees to stay in a treatment program for the entire period of their parole. This was despite the law, specifically Penal Code section 3008, subsection (d) [Penal Code section 3008(d)], which states that treatment should be a minimum of one year and can extend up to the entire period of parole, but it’s not required to be coextensive with that parole period.
Larry 52:23
Well, if you say so. But for many parolees, this policy wasn’t a big issue because they transitioned to their maintenance phase of treatment, which might require monthly or even quarterly appointments. However, other parolees were significantly affected because they were forced to attend weekly for years, and sometimes for the whole thing, repeating the same curriculum over and over again. And I’ve got some personal experience with that. They just regurgitate, they take the workbook and they reorder the chapters, and they start the same workbook all over again with slightly different iterations of the chapters. This could lead to missed work and disruptions in their lives, could it not?
Andy 53:03
A hundred percent could. I’ve seen this happen to people. And then, after ACSOL filed the lawsuit and overcame CDCR’s “demurrer”, the CDCR admitted the existence of this unwritten policy, and agreed it was inconsistent with the statute. Huh! Wow, when someone challenged it, they agreed that it was inconsistent. Weird. They also agreed to create new regulations to clarify a lawful policy and allow parolees to challenge unnecessary delays in their treatment progression. Chance, would you tell us more about these new regulations?
Chance 53:34
Okay, so here’s where the rubber meets the road. The new regulations, expected by the end of September 2024, include several key points:
1. A parolee’s participation in a management program may be terminated before discharge from parole as contemplated by Penal Code section 3008 sub (d);
2. The management program treatment provider will consult with the parole agent as to a particular parolee’s termination from the management program based on the parolee’s individual case factors. These consultations are solely to determine the length of a parolee’s treatment in the management program, and are independent of whether they should be discharged from parole;
3. Individualized consultations between the treatment provider and the parole agent as contemplated in paragraph 2(d) should first occur one year after the parolee has been in the management program, with additional consultations annually. These consultations should take place during the “containment model” team meetings;
4. The treatment provider and parole agent’s decision to retain the parolee in the management program must be supported by “good cause” as defined in section 3000 of Title 15 of the California Code of Regulations; and
5. The decision to retain a parolee in a management program must be stated in writing, signed by the treatment provider and parole agent, delivered to the parolee within 30 days, and maintained in the parolee’s file.
Chance 55:00
This is a huge step forward for parolees challenging the legality of their treatment requirement. It is advised to wait for these regulations to be issued and implemented. If their next containment meeting is after the effective date of the regulation, CDCR will have to provide a written document explaining why they are being retained in treatment. This document can be used as the basis for a 602 administrative appeal or habeas challenge, which is more effective, much more effective, than challenging the requirement without such information.
Larry 55:36
That’s a great point, Chance! While it might set some parolees back a few months, having this documentation will provide a stronger foundation for their case. It’s a significant change that could lead to early discharge for many parolees who have been unfairly kept in treatment, and I can vouch for that both professionally and personally. This is a game to keep people in treatment as long as possible.
Chance 55:59
Oh, absolutely. The case highlights the importance of challenging policies that don’t align with the law, and ensuring individuals’ rights are protected. And by the way, the byproduct of this is not only finishing treatment up at an early stage, but actually being able to be removed from parole before the full time, since you can’t be removed from parole until your treatment is over, so it’s very beneficial.
Larry 56:31
And it’s a reminder of the power of legal action in bringing necessary changes. Kudos to ACSOL for taking this on!
Andy 56:41
Larry, you’ve called this quote-unquote “treatment” a collective fishing expedition. Why do you think that it is?
Larry 56:50
Well because in the states that use this “team containment model”, you end up sacrificing all of your confidentiality, your — what would normally be — medical privacy. You end up with that team containment model glaring over everything. If you were hypothetically in a real treatment setting, and you were having urges and you had not acted upon those urges, you should be able to go talk to your treatment provider about those urges, and your treatment provider should help you deal with those urges professionally. But that’s not the way it works. Your treatment provider does do a consultation. They get on the phone as fast as they can — and usually they even work in the same building oftentimes — but they go tell your P.O. that you’ve had these urges and then you find a pair of handcuffs on you for having these urges. So that totally nullifies the benefit of treatment. How can treatment work if you’re terrified to admit any of your struggles? How would treatment be effective in that scenario?
Andy 57:50
Yeah, and you also sign a HIPAA, whatever doohickey, signing away that they are allowed to talk about your treatment with your P.O?
Larry 57:57
Correct. And that’s my biggest thing. If it were really treatment, the P.O. would get access to the information that: you’re fully participating, that you’re being productive as a member of group therapy or individual therapy, and that there are no concerns that would rise to a level of what needs to be reported under the law. There are certain things that have to be reported. If you tell your– if you call the police and say, “I enjoy watching the cute girls cheering at the football games on Friday night,” there’s nothing unlawful about enjoying that. If you call the police and you tell them, “I enjoy watching the cute girls that are cheerleading for the high school football team on Friday night and I follow them home to see where they live, ” (Andy and Chance laugh) then you’ve done something where it’s actionable. You have the right to have a fantasy. Well, in treatment, people may be having fantasies, but they haven’t acted on them. Wouldn’t it be nice if we were really trying to protect society, that they could seek help for those triggers before those triggers actually release themselves?
Andy 58:58
You so need to watch Minority Report, Larry. We so need to watch Minority Report.
Larry 59:03
But you really can’t. I mean, their attitude is, “Well, we’ll go lock the person up and then we don’t have to worry about the trigger.” But that kind of diminishes the validity of treatment, because when the person comes out of being incarcerated, they’re never going to speak up in treatment again.
Andy 59:19
Yep. Absolutely.
Chance 59:23
Yeah, it is pretty self defeating. But, you know, the thing is, is that, you know, especially here in California, treatment has, has been ongoing for, you know, a lot of the reasons that irritate Larry, for the entire period of parole. And it’s done usually to defeat any kind of halftime claim that, “I’ve done it all. I’m finished. I’m good to go. I should be discharged now.” And so, you know, it’s used as a tool or mechanism to keep a person on parole for the entire period, and sometimes longer. And that’s ridiculous. There has to be some due process injected into this. And I think that this challenge has shaken the tree a little bit, and an apple fell out called due process. And we’re about to find out just exactly what that means come the end of September.
Larry 1:00:19
Thank you, Chance. That’s a great segment, actually. This was very, very good. We are also trying to put together a case in Louisiana, and what I need to know from our vast Louisiana audience, I need to know about what it costs you to notify your neighbors through the requirement under the law. I’m trying to show that it can be significant if you’re in an urban area, and I need to know what it costs you to run the advertisement in the paper. I’m guessing that a newspaper in an urban area would charge more for the advertisement. I’m trying to show the magnitude of what this is costing. So anybody in Louisiana that wants to reach out, please do, because we’re looking at trying to put an end to this nonsense of you having to pay hundreds and hundreds of dollars to tell your neighbors that you’re a PFR. And it’s crazy. That’s what the public registry already does.
Andy 1:01:20
I was just talking to someone privately about it. He pays–- he’s in a reasonably populated area and he’s got a bill of over $600. And I can’t remember, does that come up annually? Is that every couple of years? Or is that something you have to do every year?
Larry 1:01:35
I’m not sure on the frequency. I’m hearing different conflicting things, like three years. But the unpredictability to me is a constitutional violation because every regulatory scheme, you can compute what it’s going to cost you. You know what your license plate is going to cost you. There’s a formula. You know what all, everything is going to cost you. But this, you don’t know what it’s going to cost until you get down to your newspaper, or you find out how many addresses are within that zone of circumference. It’s an indeterminable amount of money.
Andy 1:02:02
He says it’s every five years. Good grief, man! Okay, and if you want to, then you can just shoot an email to RegistryMattersCast@gmail.com and I will forward that along if you please. Seriously, if you’re in Louisiana, like, I don’t care who you are, like, I don’t want to know that your name is Bob, Bob Jones. I don’t care. But we need, I think, your parish is important, and possibly, like what newspaper is the distribution. Would that be fair, Larry?
Larry 1:02:31
That would be fair, but I’m probably going to want to contact the people if they have anything good to say. So we’re going to need contact information also, if they’re serious.
Andy 1:02:39
Okay, that means you also have to then talk to Larry, so that could be good or bad, depending on your point of view. (laughs) Chance, do you have any closing words?
Chance 1:02:48
Nah, just, you know, thank you for joining us and it’s been a pleasure. Very good program today.
Andy 1:02:55
Fantastic. We are not here next week because I’m going to the beach! So you all, if you want to record, you can record. I will leave the thing on if you guys show up and record, that’s okay. Um, but we will not be recording. What is the date of that? It is, uh, the 24th that we will not be recording. So we’ll see you in September! Is that, is that right, Larry, September?
Larry 1:03:18
31st of August.
Andy 1:03:20
Oh, crap. All right then, well, head over to registrymatters.co for the show notes, leave us voicemail at (747) 227-4477. Hey, back to that case: if you want to, and you are limited on what you can do electronically, please call (747) 227-4477 and leave contact information and I’ll get The Cranky Curmudgeon over there to contact you back. And then, if you would be so very kind, support us over on patreon.com/registrymatters for as little as a dollar a month and share the love!
Andy 1:03:52
Gentlemen, I hope you have a fantastic rest of your weekend. Don’t get too hot, Larry. Keep cool and we will talk to you in a couple weeks.
Larry 1:04:01
Good night.
Announcer 1:04:06
You’ve been listening to F Y P.
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