Tuesday, February 8, 2011

Time To Revisit Ex Post Facto Clause For Sex Offenders

 http://www.pattisblog.com/index.php?article=Time_To_Revisit_Ex_Post_Facto_Clause_For_Sex_Offenders_2983&limit=2

Scores of folks have sent me emails generated by a group called Citizens for Change. They want me to hear their cries for justice, and to sign on to the fight to have the courts declare retroactive application of the federal sex offender registration act unconstitutional. My first response to the emails was a weary sigh. The ex post facto clause is tricky, and most folks don't get just how it has been gutted by the courts.
 
The last time the federal Supreme Court heard an ex post facto challenge to sex offender registration was in 2003, involving an Alaska decision. The Smith v. Doe decision ruled that requiring a convicted sex offender to register as an offender is not a violation of the ex post facto clause of the federal constitution even if the registration requirement did not exist at the time a person was convicted.
 
The ex post facto clause prohibits lawmakers from passing laws that impose or increase punishment for criminal offenses after the acts are committed. But the law applies only to criminal laws, and not to civil laws. Most courts reason that registration requirements are not punishment, they are mere incidents, or consequences, of a criminal conviction. The purpose of registration, these courts say, is not punitive; registration exists merely to protect the public, and are civil in scope and purpose.
 
This is, of course, threadbare nonsense to the 700,000 or so folks required to register throughout the United States. These folks are publicly identified as pariahs long after they have paid their debt to society by way of the criminal sanction.
 
A recent article in the Fall 2010 edition of the Northwestern Journal of Law and Social Policy, Putting the Brakes on the Preventive State: Challenging Residency Restrictions on Child Sex Offenders in Illinois Under the Ex Post Facto Clause, by Michelle Olson, is a model of the sort of pragmatic scholarship that litigants can put to use in test cases. Olson argues persuasively that traditional arguments about the ex post facto clause are losing their persuasive force as lawmakers yield to moral panic over sex crimes.
 
Focusing on recent changes in Illinois law imposing residency restrictions on those convicted of child sex offenses, Olson paints a portrait of a body of law that grows without constitutional constraint. Lawmakers are quick to pass new legislation, fearing the reaction at the polling place if they should appear to have cold feet about isolating sex offenders of all sorts. It matters not whether an offender is convicted of violent rape or public indecency, lumping all offenders into one group and then dumping them into seeming virtual concentration camps is all the rage among lawmakers. The courts, it seems, are content to let this occur, relying on old and ancient understandings of the ex post facto clauses in the federal and state constitutions that regard registration as a mere civil incident to a criminal conviction.
 

But there is hope, Olson nots. The Supreme Courts of Kentucky, Indiana and Louisiana have recently ruled that retroactive registration requirements cross the divide from mere civil consequences to something akin to penal laws. Although the public rationale for registration is protecting the public, a registration regime that fails to distinguish those likely to cause harm from those who do not is irrational. What's more, these statutes sometimes require folks who were never even convicted of a sex offense to register. And what of the folks who are forced from family homes and support because they live too near to a school? Is it sound public policy to render folks who have served their sentence homeless?
 
Olson's article opened my eyes to broad new possibilities in the fight for sensible sex offender registration laws. It is my understanding that Louisiana's Supreme Court has also declared retroactive registration to violate the state's ex post facto clause. The federal Supreme Court's recent decision recognizing the importance of the collateral consequences of a conviction for non-citizens in the Padilla case also suggests that the high Court may be prepared to recognize that the line separating criminal and civil laws isn't as bright as was once thought.
 
States are often regarded as laboratories by the federal Supreme Court. Lawmakers in the fifty states experiment with laws and legal doctrines often well before an issue reaches the United States Supreme Court. If three state Supreme Courts have found reason to regard retroactive registration requirements as offensive since Smith v. Doe, there is hope additional states will follow suit. In time, there may well be grounds sufficient to return to the United States Supreme Court with a case testing new federal registration requirements.
 
To all those who have written urging me to take a look, thank you. I have done so. I'm in.

1 comment:

  1. Excuse me but, has anyone ever took a good look a the "Nuremburg Laws" passed by Hitler and his Nazi thugs against the Jewish people in 1933 and compared these laws to sex offender law of today? I don't know, but these laws look awful damn similar to me. But don't we fight a world war (WWII) where millions of people died to stop this very type of thing from happening? Mmmm

    ReplyDelete

One To See Change Past Posts

One to See Change Blog List

"When an American says that he loves his country, he means not only that he loves the New England hills, the prairies glistening in the sun, the wide and rising plains, the great mountains, and the sea. He means that he loves an inner air, an inner light in which freedom lives and in which a man can draw the breath of self-respect."
~Adlia Stevenson U.S. Vice President (1893–1897) and Congressman (1879–1881)

On a Personal Note

Thanks for the opportunity to express my thoughts regarding the issue of citizens’ rights, particularly addressing certain sex offenders’ crimes that do not fit the devastating, inequitable and endless punishment given.


As you know, many young men and women lives across the nation are being destroyed by incarceration, life-time registry and restrictive laws that do more harm than good. For those individuals, there is no second chance.

Below is a personal letter to President Obama:
* * * *
“Dear President Obama,

I truly agree with your sentiments that individuals, such as ex-felons, should be able to receive a second chance at life. Since we all know that one can veer off that path of life and travel along rough, rocky terrain, sometimes running off and ending up in some ditch. We all have made our fill of mistakes and sometimes those held a costly consequence that changed life forever. So we lived through it, trying harder to make things right with family, friends and those around us, but what about those who aren’t able to make things right even if they tried…because they’re labeled as too dirty, a leper, a person who is rejected from society and home.


But what if they’re a seventeen year old and had sex with a fifteen year old, consensual at that? Or they’re a teen that had gotten so enraged after a breakup that he sent out naked pictures of his girlfriend on his cell phone or email? Or an individual urinates where someone just happens to see them?


All are wrong and a travesty but do they deserve the life of no second chance with a registry that ends all. They are labeled, no jobs, no where to live…they have been deemed a menace to society, a plague. These certain circumstances, and many other situations similar to these, I believe still deserve a second change.

Fourteenth Amendment to the United States Constitution


Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


After my son’s early release and two years of prison, I thought I had handled that fact graciously knowing after serving his time he would be able to get that fresh start, that second chance. He was an exemplary inmate, GED, college courses and vocational classes. Little did I know that a second chance on the outside was the farthest from the truth? He now struggles and lives in a trailer park sharing a trailer with another and surrounded by others in the same rocking boat, one to float endlessly in shark infested waters. I see him little because of probation requirements (he couldn’t live with us because we were 800 feet near a school). My family is afraid of what would happen to them if he lived with them…vigilantism. My son has no other place to stay since others condemn him of his crime that is screamed from the highest rooftop. Sex offender, sex offender!

Not all sex offenders are pedophiles or predators but some are simply young kids that make one stupid and rash decision that eventually changes everything, and they have no idea what they’ve done until their life is never their own. Exactly, where is that second chance for those sex-offenders who are lumped together with pedophiles and predators? Now, it makes me sick to think of my son’s future and many like him that are on the registry and many with no second chance…ever. I am asking you as a mother and as another concerned citizen of the United States that these laws are looked at again and taken into serious consideration in what they are doing to the Constitution of the United States, not for sex offenders in general but the future rights of every citizen, before anymore are put into effect. They unjustly strip an offender of their rights and place them in a guillotine that can be easily set off by anyone and at anytime. Where is the second chance for ex-sex offenders in the present, pending and future laws?”
* * * *
What truly saddens me is the weakness and deterioration of what the sex offense issue is doing to our once, great nation. Across Europe, others are seeing the injustice and disregard of rights, but we ignore this problem and it makes me wonder where humanity is heading….

We have become a hysterical society in which our latest witch-hunt is a sex offender--no matter his/her crime.

Below is a email sent from a foreign advocate to a father of a sex offender:
* * * *
“The tragic story of your son's death is just so sad that it's difficult to explain how. It was very hard to read your letters. It seems almost unbelievable that this can take place in a democracy! From our point of view, there is no justice in this. Not in any way: not for you, your son, the former girl friend – or even the state.

It is an abusive legal system. It seems barbaric. And we are so very sorry that this takes place. That's why it's so important for us to try to neutralize the debate with this…, hopefully making some changes. ….. to show the every day life of the sex offenders, trying to show how they keep on being punished, even after served prison time…..But we will for sure tell the story of the injustice that your son has been exposed to.”
* * * *
I appreciate everyone's commitment and backing to protect everyone's civil rights, plainly as noted in the Constitution of the United States and is presupposed, giving ALL men are “life, liberty and pursuit of happiness.”