[00:00] Announcer: In this episode of Registry Matters, we’re brought to you by our rock star patrons, Justin, Brian, Michael, Aaron, and Ronald. Your pledges make all the difference. Let’s roll.
[00:10] Andy: I hope I can remember how to do this since we haven’t done it in three weeks. Recording live. Well, it was three weeks ago.
[00:20] Larry: Okay.
[00:22] Andy: Recording live from FYP Studios East and West, transmitted across the Internet. This is episode 347. I thought it was three forty eight, but this is March of Registry Matters. Larry Finezer, how are you? I’m nice and toasty. How are you? Nice and toasty. How’s God. Every year we do this and, you know, it’s like all we ever talk about is the weather. But tell me, how freaking hot is it?
[00:48] Larry: It’s actually not that bad. It’s only 92, but the the air conditioning system that’s supposedly new is failing again. So it’s getting
[00:57] Andy: beyond the zone of comfort for me. And riddle me this. Are you on, like, the Fortieth Floor of your building?
[01:04] Larry: I’m on the Top Floor, so I’m on the Second Floor. Oh, okay. But still, heat rises. Yeah. There’s plenty of it coming from this place.
[01:13] Andy: Especially coming out of your big face hole, spewing all that heat coming out of that mouth. Tell us what we’re doing tonight.
[01:22] Larry: Well, we are doing a little bit of this and that. Chance was unable to join us, apparently. He called, and then I didn’t reconnect with him. So it means it’s just mister doom and gloom. We have a case. I guess we’ll have to make do with that then, won’t we? I guess so. We have a case from the New Mexico Supreme Court that’s a disaster for PFRs. Also, we have a comment left on YouTube by a listener to unpack and a question about PFR rules in Tennessee. And then I think you’ve got some kind of surprise for the audience coming up.
[02:00] Andy: And alright. Well, then let’s dive. Let’s jump right in. So the first one coming up here would be this YouTube comment, and it says, you state so I guess we state you state on your website that the registry is constitutional because we register cars, dogs, cats, etcetera. This is incorrect. We register things, not people. In order to be compelled to report to the police, the state must have a court order. Without a court order, they cannot compel you to report to the police. Interesting point. I’m pretty sure, Larry, we register other things than things.
[02:37] Larry: I’m sure we do, but it’s interesting how this got taken out of context. I don’t say the registry is constitutional because we register cars and other things. What I do say that’s being taken out of context is that when we’re doing a facial unconstitutionality challenge, which in order for something not to be able to be done, period, it has to be facially unconstitutional. And I have said for the, what, eight years we’ve been doing this program, that the registry is not facially unconstitutional because there are sets of circumstances that would exist which would make registering PFRs constitutional. You could very well create a constitutional registry. So, the commenter is wrong about that. I’m not saying the registry is constitutional. I believe that in most instances, the registry as it exists in The US and most of our states is blatantly unconstitutional. But I’m saying you can’t mount a facial constitutional challenge because a court will never rule that there are no set of circumstances by which you can register PFRs. And that’s what a facial constitutional challenge would look like to end it all, and that is not in the offing. But to unpack his point, we do register cars and things, but we register more than cars and things. We register young men between 18 and 26. I think you’ve got one in your household. He’s registered between 18 and 26. And we register them for the secret for the selective service,
[04:16] Andy: as as he registered for the selective service? I just literally just now reminded him, sent him a message saying, hey. You gotta fill that thing out. And he’s like, what in the world is that? And I gave him the paperwork, but I’m sure it is under another pile of other things, and he has no idea what to do with it. Do you know can you go, like, online to a website somewhere and do it, or do you have to fill out that form?
[04:38] Larry: It’s been quite some time since that, process started. It used to be you could pick up the forms at your post office, but it would seem logical you could do it online today. But young men between the ages of 18 and 26, not young men and women, but young men Mhmm. Between 18 and 26, register for selective service. And if they don’t register, they’re subject to a five year term of imprisonment and a large fine, forfeiture of student financial aid and a whole lots of consequences if they don’t register. Now, I don’t hear a lot of moms complaining about their kid getting five years in prison. So, I think it’s very unlikely that that would, has been or would be imposed. But it’s on the books. But we register voters, which is a constitutional right, but you still have to register. We register school children. I mean, but we register all sorts of people, for for the person to say that we don’t register people, I just don’t know what universe that person lives on because we register a lot of people for a lot of things.
[05:43] Andy: The question for the Go go go go. Go ahead. Oh, I just I mean, if we go the other direction, though, about like, if you just had to fill out the paperwork online or in a in a postcard thing that says, I still live at this address and mail it in, and that was you registering for your PFR registration statute, I don’t think anybody would ever complain about it. Like, I mean, somebody would. I’m sure somebody would as far as just the complaint of, god, I have to do this thing every year. But that is not as as you’ll call it, a disability and restraint. It’s the having to go get your fingerprints and get the picture taken and get your car registered and all these other things on top of it. That’s where all the the the pain in the ass comes in.
[06:29] Larry: Correct. And the advance notice of things that you’re gonna do before you do them, like before you before you operate a vehicle in some states, I think you have to notify them, at the registry office, and you have to do these things in person. So, but the early versions of the registries around the country, even in Alabama, the early first version of registration required very little in the way of involvement from the PFR. But as time has grown, we’re in second, third, fourth generation of registries. But this person is sorely mistaken about what I’m saying. So I wanted to clarify that if this person’s mistaken, other people are mistaken. I’m not saying that the registry is constitutional. I’m saying that it’s not facially unconstitutional. I could design you a registry that would be completely constitutional. Therefore, the courts will never order that you can’t register people because you can register people. We register people all the time.
[07:28] Andy: I’m with you. Big Mike is, like, you don’t have to register to vote if you are not going to vote. You don’t go to prison for not registering to vote. He’s speaking of all of the, penalties for failure to register.
[07:43] Larry: Yes. But but that’s not the legal test about going to prison. There are things that you can be penalized, like registering for the draft. You can go to prison for five years for failing to register for the draft.
[07:56] Andy: Is there anything other than registering for the draft that would, lock you up if you didn’t do it?
[08:02] Larry: I think probably every regulatory scheme that’s out there could potentially lock you up. Driving without a license can lock you up. And that’s a that’s a, reg not registered your vehicle can get you locked up if you do it enough times. Run around without a license plate all over the country and find out what happens to you eventually if they if they apprehend you enough times. I’m I’m certain his his, his point’s going to be there that you don’t have to drive. So true. Oh, I I get the point, but that’s not the legal test. The legal test is, does can the court say that you just can’t register people? And the answer is no. They cannot say that because we do register people. Right. And it’s a test of whether or not there are any disabilities or restraints on the registration. And until we start doing litigation correctly, building cases correctly, quit moving for summary judgment without evidence, quit bringing in lawyer, witnesses to testify that counterman the points we’re making, we’re gonna keep losing.
[09:05] Andy: I understand. I know what you’re referring to too. Alright. So then moving along to another one. Where does where did this one come from?
[09:13] Larry: It came from a prisoner, and his name’s escaping me, But I think his name
[09:18] Andy: was Derek. Alright. Not that Derek, is it?
[09:22] Larry: No. Okay.
[09:24] Andy: Says, I’m very interested in your organization. I plan on starting one of my own when I get out. I want to join your fight in telling you of one of Tennessee’s messed up laws or policies. This one of which wherever we choose to live, all of the people living there are subject to getting their cell phone searched, which is an invasion of their privacy for being there. If they do not allow this, then I can’t live there, which is an abuse of power. This is just one of the many things that have gotten way out of control. I understand that we need to let people know where we live, and I do not have a problem with that. It’s just that these people in the registry department have gone mad with power. It’s like they wake up thinking, let’s do this now.
[10:07] Larry: Well, that’s correct, Nati. And that is exactly what happens. They do it until they’re told to stop. But I am we’re not aware of any law in Tennessee that permits searches of cell phones of those who live in the same residence with a registered individual. Now, let me try to make it simple and clear. We’re not aware of it. That doesn’t mean it doesn’t exist. But, for just merely being on the registry, that’s it. You have no other obligations to the law other than being a registrar. We’re not aware of that law. So, our vast Tennessee audience, if we have missed that, please let us know. But, I think he’s likely confusing registration with probation and parole supervision. An individual who’s under active supervision for a crime does not have the full protection of the Constitution. Remember, you’re being punished. This does not mean that they can come in and demand access to communications device of someone who is not under their supervision. Having said that, but what they can do is forbid the supervisor offender from residing there. It’s similar to a no weapons rule for the offender. I don’t know of a supervising office anywhere that I’ve come in contact with that allow weapons in one of their supervised offender’s residence. But they cannot offender. They cannot prohibit the offender’s family from possessing the firearms
[11:36] Andy: because that’s their constitutional right. But they can forbid the offender from living in the dwelling where the farms are. I’m just going to bring that up. Like, they can’t say you can’t own that gun, but they can say you can’t live there where that gun is.
[11:48] Larry: And and I suspect that’s what’s happening with the phones in Tennessee. They’re telling I mean, but just think about this from a practical point of view. Let’s say you’ve got five people in a house, and one of them is a PFR. And the supervised offenders, doesn’t want to be caught accessing things that the supervised offender shouldn’t be accessing. But when they hear the loud knock at the door and every dog in the neighborhood barking, all you do is pitch your phone to one of the other people in the house. Yep. And then they say, well, you can’t search that phone. And that would kind of neuter the, tracking of the probation service if they could do that. So, it would not surprise me if they say, if we come in, anybody’s there, we’re going to search their phones. And if not, we’re not going to let you live there. I wouldn’t be surprised if they’re doing that. But they can’t force the person to comply to an a non warranted, warrantless search. Because the person can say, you can take your search and shove it. I’m not aware of any law that would require them to surrender their constitutional right to privacy. And we’ve got at least a dozen listeners in Tennessee or more. Tell us about it. If we’ve missed it, we wanna know about it, but I’m not aware of it.
[13:05] Andy: Alright. Alright. Well, then let’s move over to what I have titled Nirvana. So I got a quick I got a quick pop quiz for you before we start going on this. Have you ever heard of Nirvana?
[13:17] Larry: Of course, I have. I’ve heard of it. Kurt Cobain’s band from Aberdeen, Washington in the eighties and nineties.
[13:24] Andy: I heard of it then. Am I on the right track? I believe that you’re on the right track. What else do you know about Nirvana?
[13:31] Larry: Well, I mean, I remember Kurt Cobain vividly. Nevermind, smells like teen spirit. All sorts of good stuff. Wasn’t there somebody else named Chris and Dave Grohl and
[13:47] Andy: You got that right. But I’m not referring to that one. So let’s try let’s try another one.
[13:55] Larry: So you’ve been another nirvana, the concept. Oh, oh, I know what you’re talking about. Buddhist teaching liberation from suffering and casual English. You kind of imagine perfection.
[14:07] Andy: Alright. That’s also true, but that’s not what I was really talking about. I’m talking about the Nirvana fallacy. Have you ever heard of this? No. Okay. Well, it is when people hold out for perfect conditions before acting. So they delay or dismiss real imperfect action that’s possible right now. Waiting for the ideal becomes the excuse. It’s a perfect segue into an email exchange that I had with an individual. You know, I’m on the the board with Restore Georgia, and there’s an individual there that I was communicating with. And, so we’ll call him Ron. And he wrote, quote, unquote, once I’m off the registry, I’ll be able to do a lot more advocacy. And I’m like, hold on. What?
[14:53] Larry: Well, that’s classic. I’ve heard that since I’ve been trying to do this advocacy.
[14:59] Andy: They say when the time is right, I’ll get involved. And often, that’s a polite code word for not now and probably not ever. Right. Right. And so this is why it grates, under my skin so bad. I was on the registry, and I was also on probation, a PFR probation in Georgia. I still donated. I talked with legislators. I volunteered. I showed up. I did all kinds of stuff that was related to advocacy. I even started this podcast while still on supervision and still on the registry. And I didn’t wait till the time was perfect. It seemed like I could do it now. But that line from him sounds like a stall, and that’s the Nirvana fallacy in action.
[15:38] Larry: Alright. Well, you’ve learned me something today, nirvana fallacy. And, yes, I can vaguely remember meeting up with you in a rundown hotel somewhere over at Virginia Avenue and, or or, in Hateful
[15:53] Andy: trying to figure out where we could have a PFR conference in Georgia. Is that is my memory is that about consistent with your memory? That is exactly where we met. And so, I mean, he didn’t just say, I face constraints. He framed real advocacy as something that unlocks after he’s off the registry. Like, his voice only gains legitimacy then. And that’s backwards. The lived experience while under the restrictions is the credibility. Now I have a question on that. Do you think speaking with legislators while on the registry is more impactful using the language of this is how it’s impacting me right now? Or would it be better after you’re off the registry? And the problem even with that is how many of us will never get off the registry. So if we all waited until we were off the registry, the number of people available to do anything would be significantly lower. But what do you think about just that of if you could binary split people going to talk to legislators while on versus while off? Which do you think there would be a difference in whether they’re, more or less impactful that way?
[16:57] Larry: Well, again, perfect conditions will never exist. I can see the hesitation. I can feel it. I felt it myself, but I don’t recommend waiting to speak with legislators. Contrary to popular belief, most legislators have no idea what the registry’s like. They’ve never thought about it until a proposal makes its way to them. The law enforcement apparatus assures them that it’s constitutional and the victim advocates are howling and and demanding accountability, for the perp that violated them. And most legislators have no idea what the adverse impacts are on the registrants or their families. And if you don’t tell them, they won’t know. I’m trying to make this simple. How would they know if they’re not on the registry and if you don’t tell them, how would they gain that knowledge?
[17:52] Andy: They would sit there with their their assistant in the office. And as you tell them you’re talking about the registry, they would go Google your name and see if you’re on the registry.
[18:01] Larry: And they would they would see it on a list, but they would not know what the registry imposes on you in the way of disability restraints. They would not know how it breaks up families. They would not know that you can’t go to sporting events. They would not know that you can’t go to your PTA meetings. They would there’s so many things that they would not know because they’ve never been told. So
[18:21] Andy: Now now in my experience so, yes, Georgia law imposes genuine limits. And you are probably the most expert person in the state as far as what the Georgia rules say. But there’s proximity issues as far as living and working. There are certain issues about whether you can attend churches and whatnot and, to to like, things like that. Can you go to 6 Flags or something like that? It’s not an imaginary, but the limits aren’t paralysis. There’s a difference between I can’t do everything and I won’t do anything until I can do everything.
[18:54] Larry: And if you model the opposite, you found lanes. Like say we met and you started immediately wanting to know what you could do. From letters to calls, to providing funding, showing up in rooms, helping us with data management, and then all that’s widened and grown over time. But we were doing a podcast and you were, had a, pounding at your door, I remember, about five, six years ago. Yes. So that was, one of those Narasal inactions on Halloween when they come to do their annual,
[19:29] Andy: shakedown, whatever. But they did a shakedown. They didn’t just come in to make sure they didn’t have lights on. They came in and shook me down that night. But, you know, so I did whatever I could. I started really slow. I was just listening to the NARSOC calls, then stepping into volunteering. I was I always donate. I for the entire time, I’ll be transparent. I don’t don’t donate millions of dollars, but I have the entire time. I’ve donated $5 a month for, like, ten years now. And I and I hope I hope my little contribution moves the needle. And Ron already has influence. He says he’s respected locally, works with clergy, interacts with the sheriff and a judge. I’m thinking he’s already inside circles that other people won’t necessarily have access to. So why minimize that?
[20:17] Larry: I don’t know. Am I am I down here at this part right here? You are. That’s where you gotta go. Oh, okay. Some of it is psychological, self permission needed. People script for a future moment when advocacy will feel safer or more appropriate. But structurally, the registry wants you to internalize delay. It’s baked in the chill to chill participation. And I’ve dealt with this for, I guess, as many years as you have and then a few more. It’s very common. I can’t do anything. And what’s even more humorous to me is they tell you I can’t vote while I’m on probation. And I say, well, you don’t think that, if you look at the boundaries on the map, you will see that you rest with you reside within the boundaries of a district. That person represents you. And they said, but I can’t vote. And I said, but they represent you. And you still get to express your views. And they said, but I can’t vote. And I said, well, 50% of the people in the country can’t vote. They’re minors. They can’t vote. You do you think that that that, children get fairly robust representation even though they don’t vote?
[21:32] Andy: They sure show up on conversations I hear about with, you know, child health care programs or bunches. I mean, they’re they’re they’re talked about often.
[21:42] Larry: There’s a lot of people who don’t vote, but you are responsible for representing all the constituents who live in your district. Now, honestly, human condition’s gonna kick in. If you’re running for reelection and you perceive that your support is not as strong as it should be, you’re probably not gonna spend a lot of time campaigning with children and people who can’t vote unless you’re working at an angle that’s gonna yield you votes. So you’re probably not gonna spend as much time with nonvoters.
[22:12] Andy: But you don’t have nonvoters stamped on your face. They don’t know that unless you tell them that you’re that you’re not eligible to vote. There’s not anything that I’m aware of in the capitals that I’ve been to that scans a person’s forehead and says, vote or not. Have you have you noticed anything like that in the Georgia capital? I’ve never seen anything like that. I do wonder, though, Larry. Like, I I don’t I don’t think I communicate this one very well. If you’re talking about your super, super, super local election where there’s 300 people that vote, your one vote does make, like, a statistical difference. But when there’s 70,000,000 people that vote for one president versus the other one one one candidate versus the other one. Like, your one vote is one out of 70,000,000. Like, it’s statistically insignificant. It still matters. I’m not saying it doesn’t matter. It just matters a very small amount. So, like, I’m not saying your vote doesn’t matter, but that’s just one thing that you could go do.
[23:03] Larry: It is indeed. And I’m gonna push back just a little bit on the 70,000,000 because it actually, it’s 50 separate elections True. True. True. Within the country. And we had election in in the year February. And there was a, contest in Florida that was very close. And, I think the secretary of state eventually certified
[23:24] Andy: George W Bush as the winner. It seems like by roughly 500 votes. Right. If memory serves me correctly, well, your one would be pretty significant if the margin was 500. Correct. I’m I’m I’m with you. I I I totally get where you’re going. But so if my so my gut benchmark is if you’re not using what you have now, then I’m imagining that all of a sudden when you’re given all this newfound freedom of not having to register, you’re not gonna suddenly explode into action later. Removal won’t manufacture your incentive and your discipline to go do other things.
[23:59] Larry: Well, you should judge commitment by output under constraint. If you’re already in rooms with decision makers while carrying the label, that’s leverage. You don’t need a spotless slate. You need to be focused with a mission. And believe me, these people don’t have perfect backgrounds. They’re in the legislatures around the country. In fact, one in Minnesota just got arrested, popped up on my newsfeed today, a state senator there, for breaking in someone’s home. Now, can you admit that’s funny?
[24:30] Andy: To me, it feels like this is a missed opportunity. If he learned leaned into the discomfort now, his impact would be greater because he’d be both messager and evidence at the same time if he chose to do. I know you you keep speaking that you don’t have to tell them that you’re a PFR. And, but but if if that conversation presented itself and it were beneficial for you, then you could present yourself as being, I’m the guy and here are the restrictions that I have placed upon me.
[24:56] Larry: Well, there are instances where you should tell them that you’re a PFR, but but you don’t automatically have to go in and say I’m a PFR. But to have credibility about the registry, you would need to disclose your stats. But that’s the takeaway. The registry is engineered to sap agency and stall your narrative. Now, what does that mean, sap agency? Who wrote that?
[25:17] Andy: I wrote it. I wrote every word of it.
[25:20] Larry: The most resonant advocacy is from within the system, not after you’ve escaped its reach.
[25:27] Announcer: 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 f y p.
[26:16] Andy: Penzo, any for anyone listening who’s telling yourself, I’ll get active once x happens, and that’s not the former Twitter x. That’s just when, you know, something happens. Recognize that as the Nirvana fallacy creeps in, start with the imperfect tools in front of you. And that’s how we erode this, not by waiting for perfect weather.
[26:36] Larry: Well said, and I agree.
[26:40] Andy: Well, let’s move along. You put this case in here that you want to discuss, and I’m not sure about it since it’s from New Mexico. Like, what do you have? Like, 12 people that live in the entire state? So who cares?
[26:51] Larry: 22.
[26:53] Andy: Anyway, the name of the case is Jason Aragon. Do I have that right? You do. Alright. And that’s Jason Aragon versus Richard Martinez. Now Jason is the PFR, and Richard Martinez is the warden of the prison where mister Aragon is housed. Now this sounds like to me to be something like a habeas corpus. Do I have that right? Yes. You do. Alright. Now, so I’ve read this numerous times, so you better be ready. And I read it again this morning while I was mowing the grass with my push mower. I’m gonna put a picture up on the screen so anybody that wants to know what I was doing, that’s what it looked like.
[27:30] Larry: I wanna see that. Let let me take a look at that. How do you how do you do that on a push mower? Let me see that. Where is that? You gotta go
[27:39] Andy: Larry, if you don’t it’s you gotta click on voice channels and live stream, and then the screen should pop up. Oh, okay. So so you you actually were do reading that on your push more. How do you how do you read it? Because you gotta hold it while you’re reading it. Right? The the lines are gonna be kinda wavy. I promise. At the end of the day, it like, it doesn’t come out clean. I promise. Oh. So Oh, great. So here you are. It is my understanding that PFRs in New Mexico face long and indeterminate supervised parole requirements ranging from five to twenty years for certain PFR type offenses and five years to life or more for the serious ones. Now, how is the amount of time of on parole determined?
[28:21] Larry: It’s categorical, meaning that the person has five to twenty or five to life depends on the the offense. So there’s a bucket of offenses that’ll put you in the five to life, and there’s a bucket that’ll put you in the five to 20. But what’s most important is that the PIFOR must serve his or her entire sentence in prison. Then in order to determine the actual duration of supervised parole, as we call it, the parole board is required to conduct a duration review at specified intervals, in which the State Attorney General has the burden of proving by clear and convincing evidence that the PFR should remain on parole. That’s all it says. It doesn’t say, well, how to make the determination. And, that’s in section thirty one twenty one dash 10.1 subsection C. The initial duration review must be held after the PRR served five years of supervised parole and if continued on parole, at two and one half year intervals after that.
[29:20] Andy: Yeah. Okay. That seems kinda like mud, but, alright, that seems straightforward. What’s the problem?
[29:25] Larry: Well, the problem is the mandatory statute requiring these reviews lacks a remedy if the probe board either neglects to hold the review hearings on time or fails to even conduct them altogether.
[29:41] Andy: Let’s cover some basic background on this particular case. In March 2009, Jason Aragon entered a plea of no contest to criminal sexual contact with a child under thirteen and second degree felony excuse me, a second degree felony. Aragon was sentenced to fifteen years imprisonment in the custody of the New Mexico Corrections Department, NMCD, with twelve years suspended for an actual term of three years imprisonment. Upon his release, Aragon was ordered to be placed on an indeterminate parole period of not less than five years or more than twenty years. Aragon completed his prison sentence and commenced serving parole on June 29. However, he remained incarcerated on in house parole until he was re released into the community on 08/18/2010. Now what the heck is in house parole? Is this like house arrest?
[30:32] Larry: In house parole. Well, that’s a term that we’ve coined here for this tragic situation that many PFRs experience. In house parole is commonly known as the time period where the inmate has completed their basic sentence. He completed the three years, but he’s still incarcerated in the corrections department because he didn’t have a satisfactory address to go into that what should be considered mandatory supervised release or whatever you wanna put on it. But it’s not parole. He didn’t earn it by being a good boy. He had to serve the three years. And then he was he went into a parole status, but they wouldn’t let him leave prison because he didn’t have the right, residence, didn’t have all the support that he needed. So they get to, keep holding the peep these people. And their, last count, which has been a few years back, they had close to 300 people, most of them PFRs, still in prison that were serving, in house parole.
[31:32] Andy: Now I’m I’m gonna try and get this more clear. So you just said they are on parole, but still in wait. They’re still on parole while in prison. Do I have that right?
[31:42] Larry: Unfortunately you do. So the picture that just like in the federal, system you serve, there’s no more parole than the federal system. So you serve your your sentence and you can earn to fifty four days a good time annually. So, that shaves off the end of your sentence. But, you serve all your time and then you go into a period of supervised release. Well, the feds, they kick you out. They may put you in a federal reintegration center to a halfway house. But in New Mexico, we don’t fund those type of things. So the person is obligated to find their own residence. If they don’t find it, they’re on parole status, but they’re still serving it in prison. But it’s it’s going against their five to 20, but they’re serving it without having the benefit of being in a community. It’s a separate sentence. It’s mandated by law that follows the period of incarceration.
[32:36] Andy: Would you say it’s analogous to federal supervised release?
[32:40] Larry: Correct. The only difference is the feds actually released the person when their sentence expires. New Mexico does not because we disguise what should be named supervised release as, parole. Interesting. Alright. I see. Well, then, to move along then, on January 13, the New Mexico public defender filed an amended petition for a writ of habeas corpus
[33:02] Andy: on Aragon’s behalf. The petition asserted Aragon was entitled to habeas relief because he was not afforded a duration review hearing five years after he started serving parole and every two and one half years thereafter as required by law. The petition alleged that as the at the time of its filing, Aragon had served nine years, six months, and twenty five days without any duration review hearing whatsoever. Aragon requested a writ of habeas corpus ordering his immediate release from NMCD, New Mexico corrections department custody, and a discharge from parole. Nearly ten years without a review, yet the law requires a review after five years. Can’t we put the whole department of corrections in prison for not following their laws?
[33:48] Larry: Yes. But can you finally admit that this is funny? That’s hilarious. No. It’s not funny when people have to stay locked up after their time. Well, a law without any teeth in it or any remedy is merely nothing more than advice.
[34:03] Andy: Reminds me of something. It’s definitely not funny.
[34:07] Larry: If we all these brilliant people and we designed something that’s been on the books for twenty plus years and there’s no teeth in it, and it’s twenty years later and we’re still litigating. If that’s not funny, then what how else would you describe it?
[34:20] Andy: Pathetic. It’s not funny at all. It’s disgusting. I see that Aragon argued in the alternative that the New Mexico, corrections department be ordered to immediately provide him with a duration review hearing. Aragon subsequently filed a supplement to the amended partition excuse me, petition withdrawing his request for parole hearings stating the sole request for relief is immediate discharge from the custody of the parole board. And what did the parole board say in response?
[34:50] Larry: The parole board contended that Aragon was not entitled to any relief, arguing that he was entitled to a duration review only after serving a total of five years of parole in the community as opposed to in house parole. He had some violations while in the community, I think. And the parole board invented the five years of the community, although it’s not in the statute, but they invented that.
[35:15] Andy: But then on November 30, nearly eleven and one half years after Aragon commenced serving parole, the district court ordered the New Mexico, corrections department to grant Aragon an immediate duration review hearing. How did that come about? Well, it came about through through protracted litigation that yours truly was somewhat involved in an advisory opinion. Oh. And Shouldn’t you shouldn’t you, what’s the what’s the word? What’s the word when you, excuse yourself? What’s the word? Judges do this when they have a conflict of interest? Recuse. No. You should recuse yourself from this podcast because you were involved.
[35:50] Larry: Hello. Just kidding. I’m kicking myself because we lost the case, and they were following my they were following my playbook. And I don’t like to lose. But the district court reasoned that the initial five years of supervised parole that triggers the initial review hearing required by section thirty one twenty one ten refers to all parole served, including in house. And, the district court denied Aragon’s request for immediate release and discharge because it was not willing to go so far as to rule the corrections department had waived their right to continue to detain him by not having a review hearing. So, the judge, the district judge split the baby, say, hey. You’re entitled to a hearing. But that’s all he did.
[36:31] Andy: Alright. And so this does sound quite like a lot of mess. So what happened next?
[36:36] Larry: Well, the state appealed to district court’s order challenging whether parole under section thirty one twenty one ten includes in house parole. The issue which was then pending in another case called Thompson. And, Thompson had not been settled. This case has been going on pre, resolution by Thompson. But they held the court held this case in abeyance pending the decision in Thompson. And after Thompson was decided, and that that went in our favor, they decided that parole under thirty one twenty one ten point one includes in house parole. Then they, vac the abeyance was vacated and they ordered that Aragon’s case be placed on the general calendar. Now, I’m going to sidetrack it a little bit here to make some something funny about Thompson. Thompson’s case was decided by a district judge up in San Juan County, which is the County City of Farmington. That’s the Northwest conservative part of the state. And they’ll request a conservative judge when they made the argument that he had to be supervised, you know, that the statute contemplated that the person be supervised. The judge there said, well, I can’t think of a place where someone is supervised more closely than in prison. Right. I mean I mean, that that that’s a pretty good comeback. He said I and he put that in his written order. He said, I can’t think of a place where someone gets more tightly supervised than in prison.
[38:03] Andy: That would be true. Now since Aragon wanted to be discharged from parole, I’m assuming he appealed to the district, court’s decision?
[38:12] Larry: Correct. They did. The the parties agreed that the parole board granted Aragon a belated duration review hearing as ordered by the district court, but he was not discharged for for parole, so that didn’t satisfy, the situation.
[38:28] Andy: And then Aragon, he appealed, asserting he is entitled to a complete discharge from parole for multiple reasons. First, he argued the parole board lost jurisdiction by not holding a duration review hearing as required by section thirty one twenty one ten dot one. Second, he argued that the failure to hold a timely review hearing as required by section thirty one twenty one ten dot one violated due process. And then third, he argued section thirty one twenty one ten dot one is unconstitutional because it permits the executive branch, which is part of the New Mexico, New Mexico corrections department, to exercise judicial powers in violation of the separate powers of doctrine. And then, two, it is unconstitutionally vague. And then, third, it increases the penalty for a PFR without a jury making the necessary fine in violation of Apprendi versus New Jersey, and that’s five thirty US code four sixty six from the year February. And four, it violates the prohibition against double jeopardy. Now this all sounds amazing to me.
[39:32] Larry: It does to me as well. That’s why I’m so disappointed. It does sound like very cogent, incredible constitutional arguments.
[39:40] Andy: So this is a consolidated appeal. The other person’s name is Ronald Lusk. I see no need to go through the details about Lusk because they are so similar to Aragon’s. And what did New Mexico Supreme Court decide ultimately?
[39:55] Larry: Well, before we go there, I’d like to try to make sure I accurately describe our system a bit. PFR parole is covered by thirty one twenty one dash 10.1, which was enacted in twenty o three in a special session, and it took effect right away because it was deemed an emergency. And we had, a counselor, a PFR. He was one of the only ones who did PFR type evaluations and counseling back then. And he said that our five year limitation on supervision, which was in the statute, Deb, was just not enough because therapy for PFRs takes a very long time because she’s they’re in denial and they play evasive games and they just run out the clock. And he said that they needed a longer duration. Well, they didn’t want to make the, the system any different for anybody except for PFRs. So, thanks to Doctor. Moss Aubrey’s recommendations, all of a sudden we got indeterminate, supervision for PFRs. And they said, well, how will we evaluate whether they’re getting better or not? And if they responded to treatment and he raised his hand and he says, well, we have instrumentation and tools where we can do that. And he sold a bill of goods, but the statute as it was adopted was admitted in 2007 with an effective date of 07/01/2007. And the court stated that as a preliminary matter that they must decide which version of the statute applies and whether it makes a difference in their ultimate analysis.
[41:32] Andy: So then what did they determine?
[41:35] Larry: They stated, we have held that the law at the time of the commission of the offense is controlling, and they studied state state versus Lucero and also state versus ord Ordonez. I don’t have Ordonez how to pronounce that. Holding that direct or active application of a statute of admission credit on a sentence violates the state and federal constitutional provisions against ex pro factorial laws. Aragon was convicted of committing sexual contact of a minor between the June 2007 and the June. Thus, the 2004 version applies because remember, the, the new revisions took effect for contact after July ‘7. So that the twenty o seven amendments were not in effect. Lusk, on the other hand, was convicted of exploitation of children by manufacturing images between 12/01/2007. Remember, July was the magic date and July. Lost, therefore, was subject to the amended and current version.
[42:36] Andy: Now the court then stated the remaining preliminary question we answer is whether any difference in the two statutes affect the analysis of the issue before us in this case. We conclude they do not. Both versions command that the parole board reviews whether parole should continue after the initial five years of supervised parole and every two and one half years thereafter.
[42:59] Larry: And they noted that both versions also impose the burden of proven proving at each review hearing that the offender should remain on parole. But that’s all it says. It doesn’t say how you go about proving that. Although under difference differing standards under the 2003 version, it says 02/2004, but it’s the 2003 version. The state has the burden of proving to a reasonable certainty. And, under the 2007 version, the Surgeon General has the burden of proving it by clearing convincing evidence. Both versions also expressly provide what happens if the state is unable to prove prove that the PFR should remain under parole supervision.
[43:41] Andy: Would you do me the kind, deed of telling me what the difference is between the two legal standards?
[43:48] Larry: Well, I had that set up for chance. And since he didn’t make it, I decided to do some research and I couldn’t figure it out. So I called an attorney I worked for and he said that legal certainty is not an evidentiary standard like preponderance of the evidence or beyond a reasonable doubt. Instead, it’s a threshold standard applied at certain procedural contexts like this, particularly, he said, in federal civil cases related due to jurisdiction and the amount of damages. But he said it’s not really a legal standard, per se.
[44:20] Andy: I see. So then what is the PFR’s remedy under the law regardless of the standard? They need to have a hearing according to the statute.
[44:31] Larry: Yeah. But what’s most important is that neither version sets forth any remedy for a failure of the parole board to hold a duration of reading your hearing when the initial five year period of supervised parole has been served or the two and a half years after that. Now, if you haven’t had the first one, you’re probably not gonna get, the, you know, the, the, subsequent. But there’s nothing in the statute. There’s no accountability. So it basically is advice.
[44:55] Andy: A statute without any remedy is advice. Alright. Oh, yeah. I gotcha. Yeah. So let me read what the statute says. It states, when a PFR has served the initial five years of supervised parole and at two and one half year intervals thereafter, the parole board shall review the duration of the PFR supervised, parole. And then at each hearing, the attorney general shall bear the burden of proving by clear and convincing evidence that the PFR should remain on parole. Now, you know, that doesn’t really sound super ambiguous to me.
[45:28] Larry: I don’t see any ambigu ambiguity, but there’s no remedy. It doesn’t say what happens if they don’t.
[45:33] Andy: Yeah. And alright. Well, then, apparently, your Supreme Court did. They stated, for the following reasons, we conclude that the deadlines in section thirty one twenty one ten dot one are not jurisdictional. Most importantly, section thirty one twenty one ten dot one does not provide that parole ends if the hearing is not timely, nor does it provide any other consequence or penalty for noncompliance. In fact, there is nothing in the statute that prohibits the parole board from holding a duration review hearing after the prescribed deadline. Furthermore, the Probation and Parole Act contemplates that a PFR parolee who does not receive a timely duration review hearing is still subject to the supervision and orders of the parole board. Now, I mean, I don’t really wanna keep reading all of this.
[46:19] Larry: Well, they went on to say, The Parole Board retains jurisdiction over the sex offender until they have performed the obligations of the persons released for the period of parole provided, at which time the Board shall make a final order of discharge and issue a person a certificate of discharge. Finally, interpreting section 3,121 dash 10.1 to automatically strip the Parole Board of jurisdiction for a misdeed that undermines the Parole and Probation Act’s goal of a parole process, facilitating the rehabilitation and registration of sex offenders under conditions tailored to each sex offender, with public safety weighing in the balance. We will not construe a statute to defeat this purpose. That’s amazing. It’s amazing. And, I’m calling up my liberal pointy heads, because I think three of the five are devil liberal pointy heads. I’m calling up my pointy headed friends here on this. You say over and over again, all through your jurisprudence, you say that we construe the statute to mean what it says and we won’t read into it things that are not there. Well, I think that’s what you just did here. The statute the statute, to the point that it is clear and it does have some ambiguity, but it is clear that these hearings have to happen. They would not put something in there. Their hearing has to happen. If there were no consequence for it not happening, that would make that language super superfluous and redundant, would it not?
[47:46] Andy: I I think so. I I think I have a clip, Larry. I don’t I I think this applies, except for it didn’t play. It was gonna be the Scalia thing about purposivism.
[47:59] Larry: Yes. Well, they were they wiggled their way out of this. And like I said, I think we’ve got, it’s the Supreme Court has five, not seven or nine. But I think at least three of them were considered progressives. But this was unanimous decision. There was no dissent. So I’m very disappointed.
[48:15] Andy: And and then they just said, as a result, the parole board’s failure to hold timely duration review hearings did not strip it of the
[48:24] Larry: jurisdiction. Very sad for us because if I’m a if I’m the parole board now, if I have sinister motivations, and I wanna build my prison population to get funding, and amazingly, people like to keep their agencies funded, I would say, well, you know, there’s no consequence for us not having a hearing. We just get to bulge have a bulging prison population and more funding. And what is the penalty? There is still penalty. And try go out try passing a law now. Go out. You could spend about a 112 legislators right now. You wouldn’t find a soul that would sponsor anything to fix this because it would be cast in the media as figuring out how to get sex offenders out so they can do more harm, and they need to be locked up where they belong. This this is this is a mess. There’s gotta be all kinds of laws like this that they they create the process and all that stuff, but then there’s no teeth behind it that okay. Well, they say, f you, we’re not gonna do it. And,
[49:19] Andy: okay. So, yeah, go ahead and continue to not do it. There’s no harm. There’s nothing that’s gonna be done about
[49:27] Larry: it. So well but they don’t realize that I’m not giving up. So I’m just gonna put together a different lawsuit, come at it from a different direction and say that the people need to be released on their release date. I’ve been wanting to do this, but I’ve been told I needed to hold my horses, that we’ve got this under control. We’ve got this brilliant litigation going. And they did argue a lot of the points that I wanted argued. But at this point now, we just need to put the brakes on them, keeping people in prison beyond their outdate. That is a liberty interest. And we’re coming after you again, so don’t think you got in the way with this because I’m working right now on trying to put together a new challenge.
[50:06] Andy: Now now to simplify and boil this last twenty minutes down, it says, if a PFR does not re register, it’s okay just keep them on the registry with no consequences? Is that I mean, would that be a remedy for a person? Like, hey. You didn’t do your part. I won’t do my part?
[50:22] Larry: I don’t think that’ll work the same way.
[50:25] Andy: You think they’ll come at you? I think they probably would. But you could say, I didn’t get I mean, I guess that would get you, you you would have standing in court. Right?
[50:36] Larry: You would, but there’s a penalty for failing to register. This is something where there was nothing put in the statute too. Sure. I gotcha. Just being kind of It was done in a haphazard hurried up fashion in a a special session. Special sessions don’t have full staffing levels here. I don’t know about other states, but here they don’t. They usually have a a proclamation issued by the governor. I want a bill that deals with this particular problem. Most of the time, the bill has largely been, determined what it’s gonna, say. So the legislators show up. They’re in there for one, two, three days. They do a fair minuscule amount of debate and review, and then they vote on it. And that’s what they did. This has been a junk since twenty o three. It took effect in o four, but it was actually passed in o three. It’s whatever. Anyway, but it’s it’s been on the books for twenty years. It’s a mess. It always has been.
[51:26] Andy: Well, all right then. I think that closes up shop, doesn’t it?
[51:30] Larry: Unless you had that other question from Big Mike you wanted to put in. Oh, that let me let me roll
[51:36] Andy: back. Oh, God. Where was that? Right there. So, so Big Mike says, here’s a quick question. I saw a post about a guy on Locals called the do you think it’s okay for me to give the guy I don’t wanna give the guy any, promotions. So I’m gonna leave that out. But many of you will know the individual’s name that I’m referring to. So can things like this be used to show that there are people out there using the registry for harassment?
[52:05] Larry: Yes. And I’ve had time since we mic’d up and started recording here to think about it. And that would be something that you could use to encourage the states that don’t have any laws to enact laws because you see these disclaimers on the websites that says this information is not to be used to be harassing or to do all these things. But again, it’s like what we just talked about. It’s not actually a statute. It’s just an advisory thing. But after seeing what’s happening with how registry information is being used, I think you could build some support and possibly get a statute. Now that’s only one fraction of the problem because you’ve gotta have enforcement. That means that field officers have to be willing to take reports. They have to be willing to investigate reports. They have to be willing to send them to the district attorneys, prosecutor’s office, recommend it recommending that prosecution ensue and prosecutors who are elected have to be willing to undertake prosecutions. That’s a lot of ifs. Yeah. Cause if I’m on the other side of this, what I would say if I were a victim’s advocate, I’d say, well, you know, it’s kind of funny. We got a district attorney here claims to be taking care of the people here in our in our county. That district attorney’s got put so much priority on trying to protect the people on the registry. And we’ve got 47 unsolved race rape cases just in the last year. And there’s kits sitting that haven’t even been examined. And and this person is putting all their emphasis on protecting the PFRs. Can you imagine how well that would go over politically?
[53:41] Andy: Yeah. I totally understand how that would go. And and then wouldn’t there be a a pretty hard burden of proof that that that’s where the information came from and that they’re using it outside of just informing?
[53:58] Larry: You got a good point there. It would be very easy to show where it came from, but true information is okay to to disseminate. It’s where they fabricate it and distort it. That’s the problem. But we’ve long since decided that information that’s true and is publicly available can be re disseminated. But, it gets a little bit more tenuous when you put your own spin on it, when you draw it, when you put the flyer out that you pull off the website. But, if you put your own commentary on the flyer and putting opinions about the dangerousness of this individual, you may be in a difficult,
[54:32] Andy: territory there. I see what you’re saying. So just because it says that you are convicted of x y z crime, that part’s the factual part. And then when you start throwing that this person is dangerous because of these things, and here’s how they’re dangerous and why that’s you throwing your own spin on it,
[54:49] Larry: That is that’s my way of looking at it. It’s when they start putting their own opinions, but merely disseminating your registry information. The problem we have is registry information should never be public. If we’re gonna have a registry, it should not be public. But good luck turning off the lights. They’ve been on for twenty plus years, almost thirty years. How are you gonna turn how are you gonna turn the lights off? You’re not going to. Not the Internet does not forget. There’s a hard drive stored all over the place with all this information on it. Yeah. You’re not gonna make it go away, and someone would then gain access to it. I don’t know. Maybe we’ll call it Palantir, and then they would disseminate it. Yes. Palantir. I just made up that name. Well, my limited knowledge, what I would imagine would happen would be that the private operators that have scooped up all this information through the years, they would make sure that it continued to linger for years and years and decades to come. Sure. Totally. Totally. So you’re you’re not gonna escape that. As long as we have freedoms that we have in this country, there’s a downside. And one of them is that true information, regardless of how ugly it is, can be put out. And that’s why I’ve advocated to the powers that be at Narsal that we do the same thing. I’d like to see websites built. I’d like to go through divorce case proceedings. Almost everybody’s had some kind of cases in their life, whether it be civil or criminal. And the files are full of juicy stuff, particularly in divorces. So, the people that are our detractors, if I were pulling all the shots, I would have websites of you exposing all of your divorce dirty laundry about what your spouse accused you of doing. And that’s merely disseminating information that’s in a public file that wouldn’t be squat you could do about it. And that’s what you’d be dealing with if I were pulling the strings. You’re mean. You’re dirty, man. That’s all I gotta say. Well, I’m playing with the same game that they’re playing. They’ve built websites. They’ve they’ve been doxing people, and we’d get into the doxing business. They said we would do it better.
[56:44] Andy: Are we done? I think so. Alright. Head over to regstreammatters.c0 for show notes and links to the shop, which you could do at fypeducation.org/shop and head up and check out all of our fabulous merch. And, if you want to send an email message, registrymatterscast@gmail.com is that address. You wanna leave some old fashioned voice mail, and I will try to remember to play it on the show. (747) 227-4477. And then if you would like to be one of the fabulous people that support us on Patreon, that is patreon.com/registrymatters. Thank you, everybody, that has joined us to listen to the livestream. You are some of the best people on the planet. And, Larry, thank you very much as always. And I will talk to you soon. Good day.
[57:35] Announcer: You’ve been listening to FYP.
Leave a Comment