[00:00] Intro: Welcome to Registry Matters, an independent production. Our opinions are our own. We are thankful for our patrons. You make what we do here possible. Your support keeps the conversation going. And always remember, FYP.
[00:23] Andy: Recording live from FYP Studios East and West, transmitting across the Internet. This is episode 365 of Registry Matters. Good evening, sir. How are you? Doing awesome. How are you? I’m fantastic. I’m waiting for, you know, Snowmageddon to arrive. And that can lead you to think that I live pretty much anywhere from, I don’t know, Maine to Florida almost.
[00:44] Larry: You’ve got a wide swath on the storm and, but I have a premeditation. You’re somewhere halfway, maybe a third of the way up the seaboard.
[00:55] Andy: That could possibly be true. My uncle told me that he is going to receive something of, like, 30 inches, and he’s in just he he’s near, where the conference is gonna be. He’s in, Baltimore. How many inches did you say? He said, like, 30 something. He said, like, a couple feet of snow is coming towards him. Now that’s gonna be funny. That is a lot. For that area, especially, you know, they they certainly can handle some stuff, but it’s not that aggressive there.
[01:25] Larry: No. If you’re in the DC, which Baltimore is not for in DC, they’re not equipped for two feet of snow.
[01:31] Andy: They are not. I grew up in that area. Alright. Well, so please remember, like, subscribe, thumbs up. What’s the, I guess, YouTube, it’s the thumbs up. How many thumbs up do you think we get in an episode, Larry? We should start trying to set some kind of goal, and we’ll try to achieve how many thumbs up that we’re gonna get from people. Well, I usually see a dozen up to twentieth thumbs up on the Oh, so we should try to achieve. We are gonna try to achieve by the time next time we record, we wanna have 25 thumbs up. Well, that’s On this episode of three sixty five.
[02:06] Larry: Plus 10 more subscribers.
[02:08] Andy: Oh, that would be amazing. Yeah. And so alright. Well, tell me what we’re gonna do tonight.
[02:15] Larry: Well, we have some good news from the United States Supreme Court that’s caused quite a bit of chatter, and people are probably just shy of euphoric. Okay. And we plan to review a legislative proposal that’s currently pending in Arizona. And we have a listener comment that deals with last minute international travel.
[02:38] Andy: Well, very well. Then let’s dive right in as people would say. So during the episode last week, we well, the person says, during the episode last week, you discussed the need to travel international, how there was no provision for exigent circumstances. Please reference URL, and I will put it in the show notes, and it contains this language. And it’s, paragraph two, I guess that would be. Says defense. A PFR may have an affirmative defense to liability as provided in 18 US code twenty two fifty, subsection c. If uncontrollable circumstances prevented the PFR from complying with SORNA, where the PFR did not contribute to the creation of those circumstances in reckless disregard of the requirement to comply and complied as soon as the circumstances prevented compliance cease to exist. That is worded really roundabout, Larry. So it says example three paragraph two a two, whatever. A PFR needs to travel to a foreign country on short notice, less than twenty one days, because of an unforeseeable family or work emergency. The PFR would have a defense to liability for failing to report the intended travel twenty one days in advance as required by subsection 72.7 f because it is impossible to report an intention to travel outside The United States before the intention exists. However, if the PFR failed to inform the registration jurisdiction, albeit on short notice, once he intended to travel, 18 US code twenty two fifty c would not excuse that failure because the preventing circumstances absent of an intent to travel abroad would no longer exist. Wow. This appears to address the exact circumstances referenced in the podcast. Fred. Alright. So what do you say to that?
[04:35] Larry: Well, since I’m not authorized to give a legal opinion, I will give a leg a lay opinion. The but the wording is all I need to read to tell me what I need to know. It says in the beginning, APFR may have an affirmative defense to liability. Well, now that’s a pretty ambiguous state statement may have an affirmative defense. And I would like it to be a little more solidified that there is actually a provision for it says this twenty one day advance requirement is not enforceable if the following circumstances exist. I’d like more specificity. So this is a bunch of maze, but when you have an affirmative defense, that means that only comes into play once you have been charged, once you’ve had the lawyer up, once you’ve had to spend money and have the stress of a criminal proceeding against you. And once you’ve admitted that you did what allows you to assert the affirmative defense, so you have to go ahead and stipulate that you traveled without notice. And then you have to hope the trial of fact buys your affirmative defense. It’s kinda like self defense. That’s an affirmation. Yeah. I shot the son of a bitch, but here’s why. And you have to hope that they believe that your reason is justified. That is not enough for me to want to travel. And I can only speak for myself. If I had a fear of international travel, this would not ease that fear at all.
[06:13] Andy: Alright. So the story that we were covering last week or last two weeks ago was, the guy would fly out of country on short notice to deliver, like, I guess, tourist passengers going to Mexico or packages or whatever he was delivering. And they’re like, hey, dude. You’re on the flight schedule for tomorrow or the next day or the next day. Some, you know, three or four days away or or something like that. And he’s like, well, I can’t do that because I have to give the twenty one day notice. So this would be potentially an out for him. But as you said, it’s almost like you’re, like, driving your wife to the hospital because she’s pregnant and you’re hauling ass down the road and the cop pulls you over. You’re like, but she’s pregnant. And the guy’s like, oh, okay. But meanwhile, you did have to stop. I know you didn’t get arrested. I’m toning this thing way down, Larry, but that sounds sort of similar that the cop has now stopped you, and you had to then assert that your wife is pregnant as you’re taking her to the hospital.
[07:09] Larry: That’s a good comparison. And what I was really stressing as my point is I don’t know that you’ve entered the country. Now I know that we’ve had an expert talk to us post show last week Yes. That said you have entered the country. Yep. But just because he said it, it doesn’t make it so.
[07:27] Andy: From this person, it does. Just kidding.
[07:30] Larry: So but but he said that that, as far as he’s concerned, even the nation. But I’m looking at the language of the statute and what it’s trying to prevent, at least it appears to me what it’s trying to prevent is people that are going around the country, scoping out their next target. If you’re never allowed to leave the tarmac, you are technically on that country’s soil, but you haven’t been admitted to the country to freely roam. So that’s the litigation I would like to see ensue is whether or not landing on a runway and pulling up to a gate and handing some paperwork and picking up a passenger constitutes entering the country for this particular purpose. That’s what what I was saying. But this stuff here, I wanted to put it out there because there is this vague language apparently. And if people feel comfortable with it, go ahead and travel and see what happens.
[08:21] Andy: Just I I guess have an attorney on speed dial too. Right? Right. Or already have one that you’ve scoped out and saying, I’m going to do this, and this could come up. And, so expect a call from this number and bail me out and all that. And I’m assuming this is not a $10, like, retainer. Is it? It would be a little far more than that for a federal criminal charge that you’d be trying
[08:45] Larry: to get ahead of. I think you’d be looking at several thousands of dollars to have an attorney that’s gonna work with you on this. Good grief.
[08:54] Andy: Very well. Anything else before we, head over to the main event? The main event. How do we get to the main event so fast? I know. Right? We’re, eight minutes and fifty seconds in. And, so this is out of Reason magazine is but, I mean, I know it’s other places. And justice Thomas, joined by justice Gorsuch, argue for broader scope of constitutional ban on ex post facto laws. The use Supreme Court has ruled unanimously in Ellenberg versus United States that restitution is criminal punishment. Restitution is where you have to pay money back to the state for your crime, or is that go does that go to the victim? They’re basically goes to the victim, but the state collects it on behalf of the victim. Okay. Sure. Because you don’t want right, like, hi. I’m here to pay my bill as you’re knocking on their door. According to the National Association of Criminal Defense Lawyers, and that’s NACDL, this is a definitive rejection of the legal fiction that it is merely a civil remedy. And I gotta ask you, what do you do you agree with that?
[09:57] Larry: I do. And according to NACDL’s executive director, you can’t just slap a civil label on a penalty to bypass the Constitution and keep people under the government’s thumb forever. She went on to say, this ruling is a victory for the rule of law and the thousands of individuals who have been shackled by debt long after their prison cells were opened. We have finally recognized that you cannot separate restitution from the constitution. It’s it’s time for a system that offers true rest restoration and dignity rather than permanent permanent cycle of despair. End of quote. Now that’s a nice quote.
[10:36] Andy: Alright. And mister Ellen Ellenberg saw a 7,500 debt nearly double due to interest, added decades after his original conviction. According to Andrew Burrell, for many, the end of prison sentence end of a prison sentence is just the start of a second invisible sentence.
[10:55] Larry: Burrell did say that, and he went on to say, we are talking about people who have served their time but are still barred from renting an apartment, getting a driver’s license. I think a little hyperbole there, or even opening a bank account because of debt they can never hope to pay. Are you really not allowed to get a driver’s license or open a bank account if you owe restitution. I don’t know that that’s the case. The Supreme Court finally called it what it is. It’s punishment. When courts are forced to impose enormous debt on people with no income, it doesn’t help victims or build stronger communities. It just apprise people who have served their citizens of the opportunity to rebuild their lives.
[11:36] Andy: The case just decided by the United States Supreme Court decided January 20, which is four days ago. There’s been some chatter about it over the past few days, and some have said it will change how the courts analyze constitutional challenges in the future. Now, again, I gotta ask you what your opinion of that is.
[11:59] Larry: I am I am not quite that optimistic.
[12:03] Andy: You just can’t help yourself, can you? You are definitely the definition of mister doom and gloom. The case is about the mandatory victims restitution act of 1996. The MVRA requires defendants convicted of certain federal crimes to pay monetary restitution to victims. Although petitioner Ellenberg committed his crime before the MVRA’s enactment, he was sentenced under the MRVA and ordered to pay $7,567.25 in restitution. Ellenberg raised an ex post facto clause challenge to his continued restitution obligation. The eighth circuit concluded that restitution under the MVRA is not criminal punishment subject to the ex post facto clause. The Supreme Court reversed. Can you at least admit that that’s some kind of positive change? Yeah. I can admit that. Alright. Well, then before we review all of the details, what did the court decide?
[13:03] Larry: The court held that restitution under the MVRA is plainly criminal punishment for purposes of the expospecto clause.
[13:13] Andy: Now I noticed something I’ve never seen before in all these different things that we’ve read. On page one of the opinion, they stated, in this court, Ellen Berg and The United States agree that the eighth circuit errored and that MVRA restitution is criminal punishment. Now what it what is done when the parties agree?
[13:33] Larry: Well, that is kind of a bizarre thing. It it happened like in the Defense of Marriage Act when the Obama administration said, we throw in the towel. We agree with the challengers. Well, that’s what happened here. But another party represents the prevailing position, you know, the position below where that was prevailing or in this case it was, but they represent the pitch the position below when the parties that are true parties to the controversy have no interest in pursuing it. So the supreme court appointed a person named John f Bash as amicus curiae to defend the judgment of the eighth circuit.
[14:09] Andy: Did, mister Bash do a good job?
[14:12] Larry: Well, the court stated that he did a verified job, but sometimes you can’t do you have bad facts to work with. So but, yes, they said they committed the job that he did. Well well, now that it’s story time with Larry, what did he argue to defend the judgment? Well, Amicus contended that Ellen Berg’s restitution was not imposed under the NVRA, even though he was sentenced after the MVR took effect in 1996. And that’s that’s you gotta give him credit. That’s pretty funny. And they said, therefore, it did not apply to him. But the eighth circuit decided the case on the understanding that the MBRA, was applied, should be applied, and was applied to to Ellenburg.
[14:53] Andy: How did the supreme court come to its decision that MBRA violates the ex post facto clause?
[14:59] Larry: That’s kind of ironic that you asked that. The court stated whether a law violates the ex post facto clause requires evaluating for the the law imposes criminal or penal or or, penal sanction as as opposed to a civil remedy. That sounds very familiar. And that question is one of statutory construction that requires the court to consider the statutes, tax, and its structure, and they cited Smith versus Doe from US Supreme Court as their guiding, principle.
[15:31] Andy: Wait a minute. Did you just say Smith versus Doe the Smith versus Doe, the one that everyone runs around about Yes. For PFRs? Yes. Smith versus Doe. That’s the case they cited. I thought that’s what you said. That explains why everyone is euphoric because Smith versus Doe was used as part of their decision in this case.
[15:49] Larry: It was. And they stated, when viewed as a whole, the a makes abundantly clear that restitution is criminal punishment. The MVR a labels restitution as a penalty for a criminal offense, and they cited the code section. And I don’t need to go into that, but it’s here. And only a criminal defendant convicted of a qualifying crime may be ordered to pay restitution. Restitution is imposed at sentencing for that offense together with other criminal punishment, such as imprisonment and fines. And a sentencing proceeding where the restitution is imposed the government not the victim is the party adverse to the defendant. Further, the federal MBRA restitution regime is codified in title 18, which is crimes and criminal procedure and the statutory provisions authorizing restitution orders were contained in chapter two thirty two of that same title entitled miscellaneous sentencing provisions.
[16:49] Andy: So I hope people listen to all that rant that is considerably different than the PFR registration that’s imposed, which is not a part of your sentence. It’s a collateral consequence. But go ahead. Alright. In the syllabus, the court stated while congress intended restitution under the MVRA to both punish offenders and compensate victims, victims cannot initiate or settle the restitution process as they would if it were a civil proceeding. The text and structure of the act demonstrates that congress intended restitution under the act to impose criminal punishment. What do you make of that?
[17:24] Larry: Well, my take is that PR for registration, on the other hand, is not as clear cut when it comes to the intent of the process. It it’s not clear at all that the process intent is intended to punish based on language that lawmakers use. On the contrary, the very preamble to every PR registration, PFR registration scheme I’ve seen declares just the opposite. So
[17:48] Andy: So you’re This is where you become doom and gloom again. You’re already comparing apples and oranges, and you’re reading way, way too much into this. Interesting. Alright. And when then what else did they use to determine that it is punishment?
[18:00] Larry: They stated as a further sign that NVRA restitution is criminal punishment. The federal MVR registration reg, reg, regiment is codified in title 18, crimes and criminal procedures. The main statutory provisions authorizing orders is 03/3663 a are contained in chapter two thirty two entitled misleading, miscellaneous sentencing provisions. That is not the case with PFR registration.
[18:26] Andy: So Can they just move the section out of crimes and criminal procedure?
[18:32] Larry: They can, but the court stated another statutory provision that 35, 56 states the court shall order restitution in imposing sentence for a cover defense. So that sure sounds a lot like punishment when they say they shall order restitution. On the PFR, it says that the court shall apprise the defendant of a duty to register if one exists, but they don’t actually order it. Now they do order it as a condition of your probation, but that ends when your probation terminates. That provision is, as we were just talking about, thirty five fifty six is housed in chapter two twenty seven of title 18, and and that is entitled sentences. And they will have to deal with that as well if they’re if there’s gonna try to move it out.
[19:16] Andy: Now an email that we received everyone and everyone else that I’ve heard of is, oh, giddy. That Smith versus Doe was listed in this case. The scuttlebutt is that we should interpret that they are ready to revisit Smith versus Doe. Now I gotta ask you here, do you agree with that?
[19:38] Larry: No. I don’t actually agree with that. They actually said and they’re referring to the person they appointed. Amicus relies heavily on Smith versus Doe. That’s five thirty eight US beginning at page 84. There, this court now reading from them. There, this court considered a law requiring a defendant convicted of certain crimes to register as a PFR. The court held that registration, the registration mandate was civil. The legislature adapted distinctly civil procedures for the imposition of registration requirements. And then they cited back to that same case. By contrast, to reiterate what we’ve said above, MVR restitution is labeled as a penalty as codified in the criminal code as predicated on a criminal conviction as imposed against a criminal defendant is sometimes imposed in lieu of other penalties is ordered at sentencing for The United States as the adverse party and can result in resentencing when the defendant refuses to pay. So Smith versus Doe, this is the court saying that does not control. Now I’m reading from what they said, so take their word for it. They are telling you it does not control anything here.
[20:49] Andy: So is this just an example of a renegade court that is overruling the will of the people?
[20:56] Larry: No. I don’t think so. It it’s a court that remains consistent with their previous holdings in Smith v Stowe. They stated it’s true, as Amicus Thurl explains, that MVR seeks to compensate crime victims, a non punitive goal. Several provisions of the MVR reflect that objective, such as provision requiring the restitution amounts to be based on the victim’s loss. But these provisions show only that Congress intended restitution under the MVR to both punish and compensate. And so and as long as the text and structure of the act demonstrate that Congress intended to, at least impose punishment, that ends the inquiry. If you guys will read Smith versus Doe, they tell you when they’re deciding whether something is civil or regulatory, they look at first the intent. And if there is no intent to to punish, then they look at the effects. They do the intents of, effects test. Congress declared in this they intended to punish. They don’t need to go any further. They’ve already got the answer to what determines if it’s punishment because congress said it was. That changes everything in this analysis.
[22:08] Andy: Now I need you to step out on the edge of everything that you know, the deep inside of the core of your body. Can you find something that is at least positive?
[22:22] Larry: Yeah. This is a good decision that we should all applaud. Unfortunately, it’s not what people think. They stated, this is the court. Our ruling today does not mean that a restitution statute can never be civil. But the statutory text and structure of the MVRA demonstrate that restitution under that act listen carefully. Under that act is criminal punishment. That’s a invitation for you to fix it. All Congress has to do is make some changes, and I’ll predict that they will.
[22:53] Andy: What do you make of justice Thomas’s separate concurring opinion?
[22:58] Larry: I did not read it in its entirety, but based on what I did read, it appears that he would go further than his colleagues chose to go.
[23:06] Andy: And what makes you say that?
[23:09] Larry: He stated, I joined the court’s opinion in full because it correctly applies our precedent. I write separately to clarify the foundation of that precedent. The this court’s 1798 decision in Calder versus Bull established the ex post facto established that the ex post facto clause clauses forbid only those retroactive laws that impose punishment for a crime. Over the 228 since Calder, the court has struggled to articulate what it means for a law for a law to impose punishment for a crime and thus be subject to the exposed factor clause. This court’s more recent precedents have implemented Calder through two multifactor tests at large eternal where the legislature labels the law as criminal or civil. But in 1798, punishment for a crime would have been understood to refer to any coercive coercive penalty for a public wrong. End of justice Thomas’ quote that I chose to put in here. Now tell me what the, what was the environment like back in 1798
[24:12] Andy: when you were you were alive back then. Isn’t that true?
[24:15] Larry: Yes. I remember those days quite fondly. As justice Thomas stated, many laws that were nominally that are normally nominally civil today, but therefore have been subject to the expos facto clauses under Calder. He stated, I would restore Calder’s approach to the expos facto clauses. Now that’s something to get a little bit giddy about because Thomas wants a broader interpretation of the exposanto clauses, but he didn’t have any of his colleagues join him on this. I only saw his name on this, and I didn’t read the whole thing. But I see only one justice saying that you’ve got about there. You gotta get at least four more to get to five. Right?
[24:55] Andy: I believe so. Can you can you dig into that a little bit more and what’s your like, he I understand that he’s saying we should go back to 1798. But when you were in your Ute back then, I don’t understand what that means.
[25:08] Larry: Well, he’s he’s saying that they’ve got this multifaceted test now where they have to look at whether it’s intended to be civil and what the legislative body intended, and then they have to look at the the effect the effects and see if it actually imposes punishment. He’s saying, if I interpret it correctly, that any adverse thing done to you as a result of committing a crime should be considered punishment. That’s what I think he’s saying. And if he’s saying that, that’s something to get giddy about because all you’ve got is four four more to go.
[25:40] Andy: And since he is, like, one of the most conservative traditionalist out there, what’s the textualist out there? Then I would imagine that you would at least end up with Gorsuch on there. He’s very textualisty.
[25:52] Larry: Well, but he didn’t join this, company. You. But so like I say, right now, we’ve only got one. But I would not I would not get all excited about this decision.
[26:04] Andy: And you also then said they have this, quote, unquote, test. Is that the Kennedy Mendoza thing? Yes. That’s where they come up with that Kennedy Mendoza Martinez,
[26:11] Larry: test. So they start with the the legislature did the lawmakers intend to impose punishment? Well, that didn’t seem right. Because if you intended to be punitive, they take the court takes the word that, yeah, you want punishment. We agree it’s punishment. But if if the law if it’s, clear that the lawmakers were calling it civil and non punitive and regulatory, then you have to look at the effects. And he’s thinking that’s way too complicated. If you’re being disadvantaged after you committed a crime, after it was a a disadvantage that existed, he seems to be saying we shouldn’t be doing that, and he wants to restore the previous approach to the exposed factor clause. If that’s what he’s saying, I agree, don’t you?
[26:51] Andy: I think I do. Sure. Alright. So
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[27:47] Andy: Well, we are moving along at high speed here. Do you wanna talk about a bill in Azerona? In what state? Arizona.
[27:57] Larry: So, yes, we do have a bill to talk about that I was asked by some Arizona advocates to give my analysis of, and I thought this would be helpful to the audience to understand what I look at. You could either agree or disagree. That’s the beauty of of our free society, but this is how I break this bill down and what I would do do if I had this facing me.
[28:22] Andy: Alright. And, so it’s a very short bill. I will read the relevant portions. A defendant who is ordered or required to register pursuant to section 13 dash thirty eight twenty one for an offense committed in this state or another state and in violation of this title and who has been registered as a PFR for at least ten years for an offense committed as an adult or for at least five years for an offense committed when the defendant was under 18 years of age may petition the court for an order to terminate any duty to register. Who’s the sponsor of this?
[29:02] Larry: The sponsor’s name is representative Powell.
[29:07] Andy: Not not Colin Powell?
[29:09] Larry: No. He’s been dead for twenty three years now. Alright. Actually, he died, I think, right during the pandemic, so not quite twenty three years. Okay.
[29:19] Andy: Does he have the ability is he a person that is in a position to to move this through the process?
[29:25] Larry: Well, let’s dig into this a little bit because, you’ve heard me say through the years that when you’re seeking sponsorship for something good or if you’re evaluating something that’s bad, the first thing you have to analyze is do they have the ability to move the legislation? Well, at first blush, the first thing that stuck out to me is the guy just got elected. He’s a freshman. So normally that that would say no. All right. But I can’t, I can’t say no. And this particular case, because he’s a conservative Republican, which is a very good start in a state like Arizona. And that means very few will criticize him for turning Lucas the title wave with crime on this helpless citizens of the state of Arizona. So he’s a, he’s a freshman. That’s usually a strike against you. I didn’t check out his committee assignments, but he being that he’s, on the conservative side of the aisle, we’ll get more into his background later, but I would not dismiss him as being inept even though that this is his first term. And by freshman, that’s their first year or just first term? Well, it was the first term, but this is truly his first year. He just got elected in 2024 and took office this year. Don’t doesn’t everybody get committee assignments when they come on board? Yes. I just didn’t check out his we’ll see what Oh, no. I’m I’m with you. I’m not challenging that. You just I but, like, everybody gets some kind of committee. Well, it it it might be the supply committee. You know, the the yes. Everybody everybody’s gonna get usually some some committee. But whether it’s a powerful committee or not, that’s what I’m talk talking about. But I think this guy might have the ability to do something based on his own campaign website. He states, I have always lived by the pledge to be engaged in doing good things. I have lived at Arizona for the majority of my life and have lived in Gilbert for over twenty five years. I was an employee of the Phoenix, Arizona Police Department and the Federal Bureau of Investigation. Now he didn’t say he was an officer, but I would hate to think I would hate to think that he swept the floor for both of those agencies and he’s putting that on his campaign website. But if he has former law enforcement experience of any magnitude, that gives him an additional, license to do things because he would never turn loose a tidal wave of crime like AOC would do or someone from the liberal side of the aisle. So he gets a pass. So so Kyle Powell might be able to pull this off.
[31:49] Andy: Now I okay. So based on what you just said there, that seems pretty solid as far as, like, a cred. So but what’s wrong with it, though?
[31:57] Larry: Well, there there are several things wrong with it.
[32:00] Andy: There you go again. Of course, you are mister doom and gloom. So go back to your, try to reach down deep inside yourself and find anything that’s good about this bill.
[32:10] Larry: Well, yes. There’s something good about the bill. It’s been sponsored and introduced, and, it’s got potential for passing, but there are problems that would need to be fixed.
[32:24] Andy: Then please enlighten us.
[32:27] Larry: Well, there are at least five identifiable problems that, that are in the bill as I see it. First, the language refers to the person as the defendant. Did you notice that? I did. Yes. Well, since registration of PFRs is a civil regulatory scheme that flows as a consequence of a prior conviction, the person should never be referred to as a defendant when they’re in a civil regulatory regime trying to get excuse from further compliance. They they correctly refer to the person later on in the bill as petitioner. But I’m suggesting that they always refer to the person as petition petitioner or individual, but do not use defendant. That changes the whole look of the individual. If you’re a defendant in court, I mean, yes, you can be a civil defendant. But if you if they leave that defendant language in there, that already starts the clock against you. Alright. Well, that makes somewhat some sense at least. So then what next? Well, the language says you read it. It says petition the court. What court would they petition? This needs clarity. And I suggest that they file the petition in the superior court, and that’s the the court of general, jurisdiction, of the county of their residence.
[33:42] Andy: Now okay. So that seems kinda clever to me. Then they would they would avoid going back to the county of conviction, which can be
[33:50] Larry: very problematic. Then then what’s next? You’ve got you’ve got that right. That could be very problematic because depending on what kind of angst they have against you and depending on the size of the county, you may have a lot harder battle getting off the registry, assuming they were to make this thing law. But that’s what they do in Georgia, Larry. You you have if if you are from out of state, you get to petition the county you’re in. If you got convicted and you’re still living there, you have to go back to the county of conviction. And I I want to avoid that. But since they didn’t specify county, I’m recommending that they put the county of residence. That will give the people the opportunity since the bulk of the population in Arizona is gonna live in the, Maricopa Phoenix, area or in, Tucson. I forget the name of that county, but the majority of people are gonna live in that part of the state. So we would give more relief potential to those in those counties. Because I’m assuming that the courts would be more equipped and more likely not to have the ability to push back as hard, But certainly, you need to figure out where you’re gonna file the petition. You just don’t say the court. That’s a big omission there.
[34:56] Andy: All right. Well, that makes some sense. So then what else? Well, the language says,
[35:00] Larry: may call witnesses and introduce evidence, any reliable and relevant evidence. Well, I don’t know exactly how to narrow this down just yet, but you don’t want that language. The problem for petitioners is that stable attempt to retry the case and focus on the original conduct that occurred at least by statute ten years previously. And if they can do that, if they get to relitigate the case and just read from the complaint and have the victim give a victim impact story, you ain’t gonna get off the registry. Virtually nobody will be removed And offered some, alternate language that I don’t wanna put on the air here that, as a placeholder, but it needs more work. Because I did this on the fly trying to help them out. And that has not been incorporated in yet. But this language here, if you allow them to rehash the case, you might as well forget getting off the damn registry.
[35:53] Andy: And because they kinda tried to do that when I was getting off the registry. They just there was nobody there in the office when, that had still worked there. So they they were like, we oppose, but there’s nobody here that remembers any about this. So it’s like, we oppose, but we’re not gonna push back very hard. Alright. Well, then, also, that makes pretty much that makes some sense. What what else do you think they should do? Well, the evidentiary standard they established is far too high. They say clear and convincing evidence
[36:20] Larry: and that’s just one notch below beyond a reasonable doubt and clear and convincing is a civil standard so I can’t fault them for that but I do suggest that they back it down additional notch to preponderance of the evidence which is, more likely than not. We can’t put it clear and convincing is so high. I’m familiar with that because that’s our conditions for keeping a person pretrial detention here, a force to state to show clear and convincing evidence that the person, there’s no set of conditions that will they can be released that will keep the community safe. Well, that standard is so high that state can hardly ever meet that here. If you notice that, Hollywood actor what was his name? Busfield just got released on his own recognizance for a PFR offense here. That would only happen in maybe a handful of our states. Right. But but I would like to see this, standard lowered from, from clear and convincing.
[37:12] Andy: Would you do me a favor since I like, these are just words. I I understand preponderance of the evidence means, like, 50 plus one. Right? Right. And I don’t like, does clear and convincing mean 75%?
[37:26] Larry: It doesn’t have a percentage, but in a civil, the jury would be instructed to the effect that the evidence doesn’t have to be, that there’s no doubt, but it has to be you have to be clearly convinced that this defendant and the civil, suit is responsible for those damages. And beyond a reasonable doubt is, what they use in a criminal case, and there’s no exact definition. A judge will tell you it’s what causes a reasonable person to have doubt about the validity of returning a guilty verdict, but they don’t ever tell you what beyond reasonable doubt means. It’s all up to each individual juror. Sure. Okay. Alright. Well, then then
[38:02] Andy: let’s keep moving. What else do you have?
[38:06] Larry: Well, the language is, is far too restrictive. The the you have to prove that the PFR has to prove that they’re not a danger to the community, and they have to prove that by clear and convincing evidence, but that’s far too vague. The registry does not try to prevent danger to the community. If you apply that standard, everybody presents danger to the community. If you’re alive, unless you’re homebound and can’t get out of bed, there’s some danger. The the language should be narrowed to not a danger to commit a crime of violence. And I would prefer a sexual crime, but definitely a crime of violence. But to say not not a danger to the community that you have to prove that by clear and convincing evidence. You’ve got a system where it was one step above not having a removal process, but not much better than that. If this were to actually be enacted, there’d be very few people getting off.
[38:56] Andy: I I like the way that you frame that of if you’re trying, you know, you’re trying to prove a negative, which is really hard to do, but you’re trying to go before court and try to provide evidence that you are no longer a threat and, like, you you have no evidence to prove anything other than to say that you’re not gonna do it. Anyway, do you think that this will pass?
[39:17] Larry: Not sure. There will be some staunch opposition out there. I have already heard from the Arizonans that there’s a victim’s advocacy group that’s already lining up their media support, and, they’re already planning on trying to push back pretty hard.
[39:33] Andy: Now would you recommend that all of the PFRs go gather and form a large contingent and show up at the Capitol?
[39:42] Announcer: I failed to see what purpose that would serve.
[39:46] Larry: I do not, recommend that. I think that that would be counterproductive. I think that this bill is likely to be high profile. The victim’s advocate’s apparatus will make sure that it is. It’ll be covered on the news when it’s when it’s heard in committee. And if a whole bunch of PFRs were to testify, they would spend that as the this is the example of how the PFRs are trying to to do I mean, it would just be, ugly. But I would think that would have too much risk and too little reward. So I would not do that if if we were doing that here. I wouldn’t bring a bunch of PFRs.
[40:24] Andy: Well, alright. We do have a little bit. It’s only forty minutes. If if you saw this bill show up in your legislative body, what would you do? Like, do you start going and shaking hands and kissing babies and trying to talk to the legislators to see if they would support it? How do you move it, like, from that angle?
[40:42] Larry: Well, that’s a good good question. Well, if this, it’s doubtful a bill like this would just show up here, but if it did show up because it didn’t just show up. The Arizona group was working on it. They’ve been trying to get something to allow pathway off the registry. And this is, this is their first draft. I think they had a bill previous year that maybe didn’t get a hearing, but this is their first solid attempt where they’re they’re trying to get this done. But what they need to do now is to get with the legislative council, whatever they call their drafting service. They need to get the, sponsor. They need to get representative Powell to empower someone who has expertise in the subject matter to help the the legislative drafter come up with language that will cure some of these deficits. But the first conversation I’d have would be representative Powell. Do you actually want this to work, or is this window dressing? Because if we wanna get people off the registry, this will not work. This has too many pitfalls, and virtually no one will be released. But if he’s serious about wanting to thin off the registry, and if he says yes, I would say, well, good. I’m gonna give you some talking points for for why we need to thin off the registry. Talking points are helpful because if he gets cornered by a reporter in the, the hallways of the capitol and he’s caught off guard, Why are you getting ready to turn all these hundreds, if not thousands of people off a registry? He needs to have his talking points. He needs to have wealth. What we’re trying to do is we’re trying to focus on those who have committed more recent crimes that pose a greater threat. And with limited resources, and in fact that I’ve run on a I’ve been running on a no tax increase campaign, I want to make the best use of the resources we have. So we’re trying to thin out the older offenders from the registry. But but I would get him prepared with talking points, and I would get with the drafter if he would authorize me because usually they can authorize person to work directly with the bill drafter, and I would get language that’s better in there before it gets to the committee to be heard. If it gets to the committee on this format, it’s possible to change it, amend it in the committee. But if you if you wait to that stage and you don’t have it in good draft form and you get to the committee stage, you’re, in an uphill battle because they have to do the amendment right there when they’re hearing it if they operate like we do. And trying to find the right language when you’ve got 12 people looking at you is much more difficult. So, that’s what I would be doing if I were if I were running the show. But I’m not running the show. I’m only an advisor.
[43:04] Andy: I understand. Well, fantabulous. That is totally a word. Anything else before we head out?
[43:12] Larry: Well, this turned out to be a little bit shorter, but it’s 42 minutes we had. And, I’ve got a snowstorm possibly coming in. I know you’ve got one going in. So as we start earlier tonight, I apologize for those throngs of people that would have been here, but I don’t wanna be stranded on one side of town and not able to get to the other side. And, so that’s gonna get me out here before the so is predicted to come.
[43:36] Andy: I do want to, make sure that we announce that we did get a new patron. So thank you, Andrew, for coming aboard at the stimulus check level. That was very generous of them.
[43:46] Larry: What was that level stimulus? Well, there was three of those. Which which level did he come in at? Was it 1,400 or 1,200? That’s all I’m thinking. It was the fourteen. Oh, he came in at the 1,400 level? That’s really good. Yeah. Yeah. Yeah. And everybody everybody don’t take us seriously. Nobody’s doing stimulus level.
[44:02] Andy: So Annually, we got a couple close.
[44:05] Larry: That’s true. We’ve got a couple that would be right at the the annual on an annual basis.
[44:11] Andy: Well, very good. Well, head over to registrymatchers.co, and you can find show notes and links everywhere that you would need to go and email us at registrymatterscast@gmail.com. You can send us a old fashioned voice mail message at (747) 227-4477. As an alternative, you could record a voice memo and email that to us at the previous the aforementioned email address. And then, of course, as Andrew has done, support us on Patreon at patreon.com/registrymatters to support the work that we do here. We are independent creators. And, you know, this is sort of a a labor of love, so to speak. And, it certainly doesn’t pay the, the mortgage.
[44:50] Larry: Right? It doesn’t. I thought that we were pulling down a 100 k a year each off of this. Yeah.
[44:57] Andy: Sure. And then, of course, you can go over to fypeducation.org/shop and find the fantabulous, merchandise that Registry Matters has there, especially the doom and gloom shirt. You know, I was I was editing some videos, and there’s a guy at the conference, the, the MC, and he had won a shirt the the when we did the live recorder, and he was wearing it the next day. And it it’s the it’s not a, it’s a civil regulatory scheme. It’s not punishment. It’s a civil regulatory scheme shirt. It was funny. It was cracking me up. Well, it’s funny because, I’ve got I’ve got one of those shirts myself, and I’m gonna start wearing it. You should totally do it. That’s so it’s hard to kinda, like, figure out something that gets the point across, but doesn’t out you. Like, there were some other shirts presented at a conference that said, like, I am a sex offender or something like that. It’s like, no one’s gonna wear those. No one’s gonna even want those. But if you have something that’s a little bit, you know, two or three degrees away from what it is, it’s perfectly fine.
[45:57] Larry: Well, it truly is a civil regulatory scheme until it the court say it is not. And I’m getting back we’re going back on the air again. But until we do a better job of proving that intent affects test, Rather than griping about it, we just need to build a solid case and go in with proof and quit whining and do our jobs. And that’s what’s gonna win this and turn it around, but it’s not necessarily that the courts are wrong. It’s that we haven’t litigated as effectively as we should.
[46:25] Andy: Yep. Understand. Alright. Well, then I hope everybody has a great night and great weekend. And if you are in the path of snowmageddon, I hope you stay warm and toasty and safe and so so forth and so on. And I will talk to you soon, my friend, and I hope you have a great night. Good night.
[46:44] Announcer: You’ve been listening to FYP.
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