Sunday, June 26, 2011

Topic: Frequently Asked Questions - Registry Matters

Frequently Asked Questions:
All About the Sex Offender Registry

Types of questions we do not answer: Questions of a PERSONAL NATURE. i.e., "I am not a bad person, why add me to the registry?" .... "What did I do to deserve this?" .... "I never touched anyone! I don't deserve this! Aren't I better than people who have touched someone or a recidivist?" etc. etc. We do not judge folks. Neither do we evaluate folks, thats for professionals. And, we do not promote FALSE HOPES, instead we try to find REAL SOLUTIONS to problems folks bring to us. Solutions are found in laws, ordinances, and case law. Which is why we try to point to those when folks ask questions. And finally, if there is no solution, we will explain that, we do not lead folks on.
CLICK to Jump to Visitors Questions

A Sex Offender Registry Primer:

Often as folks go through the Criminal Justice System there are things that go on which are not completely explained by lawyers, and after the process is over folks find out other things they are subjected to which they were never told about beforehand. So here we are going to walk through the registry (an overview) to hopefully point out some of the subtle points that lawyers never explained to defendants or their families.

Following the criminal court process comes the shock of registering as a sex offender. For the most part there are no options, convicted of a sex offense requires registration. For some folks they have cuts deals, through Plea Bargaining, so that they are not required to register for the sex offender registry. see "Why are Judges denied the discretion of saying, who goes on the sex offender registry, but Prosecutors have that discretion?" Yes, we are aware that many lawyers FAILED to try to cut deals, but at this point thats water over the dam.

Lets first address "Is registration (i.e., the requirement to register in a sex offender registry)" constitutional? Unfortunately the answer is YES, so sayeth the U.S. Supreme court in two cases back in 2003: "Smith V. Doe (01-729) 538 U.S. 84 (2003)(Oral Argument) -and- Connecticut Dept. of Public Safety V. Doe (01-1231) 538 U.S. 1 (2003)(Oral Argument). No other case has yet made it to the high court on those issues, and every state uses those cases to support their version of a sex offender registry.
Historical note: Those cases were decided in March of 2003, based on 1980 recidivism statistics. The U.S. Supreme court relied on recidivism statistics presented in, McKune V. Lile (2002)(Oral Argument), a case heard the year before. McKune was a Kansas case about in-prison Sexual Abuse Treatment Program.

Then in June of 2003 the Dep't of Justice published NEW recidivism statistics, refuting the old 1980 stats. Lawyers in the two 2003 cases (Oral Argument held 2002 in Nov.) should have refuted 1980 Stats, but did not; they should have known about the pending DOJ study. Sad yes, and the high court relied heavily on recidivism.
Given that, no higher court (Yes a few lower courts have declared registration in a particular case, unconstitutional), has ever declared registration unconstitutional, then how do we explain some cases where courts have held there was a ex post facto violation? In those cases the court is saying, that, applying registration laws to the FACTS of the case under consideration (Plaintiff's facts), that violated the ex post facto prohibition. Those cases DID NOT hold that registration was unconstitutional, only that applying registration laws to that Plaintiff (or group of registrants) violated ex post facto clauses. There is a significant difference.

With that said, on to registration procedures:

First Time Registration: No doubt the first time someone registers it is a traumatic event, but there is no way to avoid doing it and still remain compliant with laws today (2011). So be ready with all your information (Driver's license or State ID, something that shows where you will be living, Employment address, Schools you are attending, etc. pretty much they can ask for anything [ACLU where are you]) (You will also be required to provide a DNA sample and have your picture taken) (provide finger and/or palm prints, and some want iris scans) (most states have some sort of a fee/s which must be paid in cash) (every state is somewhat different, one even requires shoe size, dumb yes), when you get to the place of registration you will be given FORM/S to complete, and once you complete them you will be required to sign -at least- one of them.

Changes to Registration Information: Generally when you go in to report changes you only need your Driver's license or State ID, and they have change forms for the new information. Some states do charge a fee for changes as well. Get copies of any forms for your files.

Mandatory Reporting Times: When you first registered they told you how often you MUST report to verify your information. It may be, monthly, quarterly, semi-annual, or annually. If you will be reporting that you are "Homeless" or "Transient (as some call it)" you may have another time frame that you are required to report. Whatever forms they require you to complete, get copies of any forms for your files. Again some states do charge a fee.

New Section
"All About Registration and other Related Forms"
You'd Be Surprised How Critical Forms Are
And What We Have Learned!

This ends the registry overview. If we have left something out, please contact

Visitors Questions Answered:

  • If a person has completed their sentence (Prison, Jail, Probation, etc.) and is no longer on the registry, but then later moves to another state, would this person then be required to register in the new state? There are many factors to consider here, and a few SAD FACTS, but the question is answered HERE
  • I recently had to register as homeless and when I did police told me that I had to be underneath a certain bridge by the river in Grand Rapids (presumably where other homeless folks stay at night), and said if I'm not there at night I could get up to 4 years in prison. I wanted to know the actual law on and can they demand this? Because I do not want to go to prison! I feel like they are setting me up! Unless you are on parole or probation, and your Supervising Agent told you, you must be there between certain hours, there is nothing in Michigan registration laws requiring you to stay there all night.

    It sounds like the police, who do frequently perform home unannounced address checks -even on homeless folks-, were trying to eliminate the possibility that you might not be there if they wanted to check on you, and told you that to prevent them having to return night after night to complete a address check. Shame on them for not telling you the truth. You were correct to request the law, but from your question it appears they did not give it to you!
  • I took a plea because I was assured that a conviction would NOT require sex offender registration (or was told registration would only be for XXX years). Now I'm being told it is for XXX years, and that has again been extended by the state. Most folks will not like this answer, but here goes, the "term of registration" can be changed at any time, there is nothing in law to stop them from changing the term. Consider, prior to the Adam Wash Act most states had A) 10 years; B) 25 years; or C) Lifetime. Then through AWA Congress changed the terms to 15, 25 and Lifetime, allowing a select few to petition for reductions in their terms. However, there is nothing in AWA to prevent Congress from again changing terms when they feel like it. This is one of those cruel hidden facts no one talks about.
  • My Judge sentenced me to XX years of registration. Shouldn't that be all I have to do? Judges do not sentence folks to registration, they may simply point out that you must follow registration laws. We have heard that a few judges have even mentioned a length of time for registration, and in those cases one might want to speak to a lawyer because that would show what the Judge thought, was appropriate for you. That may be a issue for court, please see a lawyer.
  • This whole business is insane! What can I do to get off the public registry? Most folks think it is always impossible to get off the registry, but that is not totally true. Relief from the registry is available in some states (See: Topic: Certificates of Rehabilitation) if your circumstances fit the requirements. And while we have not yet fully explored this, some states have "Petition Processes" if you have the right circumstances. (See Topic: Registry - States w-Removal Petitions) For everyone else, the best we can suggest is, to start working with your state lawmakers to change laws allowing others to petition at some point. REMEMBER THIS: If a state allows someone off the state registry, that means they are also taken off the national (FEDERAL) registry.
  • How can I get myself off the registry? See answer to above question!
  • Is it better to challenge the registry at the state level? Definitely better to challenge at the state level because then you are fighting -one set of laws- and the thinking of your state lawmakers. There have been successes on different issues, at the state level, in a few states (Ohio, Indiana and others). Unfortunately no state has completely declared registration unconstitutional. Registries are here to stay.
  • Public registration is just as bad, if not worse, than being on parole or probation! Why isn't it considered punishment? This is probably one of the most interesting questions because prisons won rights for different levels of confinement (General population, Administrative segregation, etc.). That logic has not gone away, but no one has yet to bring it to a court of law with respect to "Public Registries," hint hint hint. This may very well be a good argument for allowing registrants, individually or as some designated group, to petition to be removed from the registry on the state level. Tier levels each have their own restrictions which could be argued, that each should be allowed to __ __ __ etc. Brainstorm this idea with state lawmakers.
  • Why can't just the really bad -dangerous predators- be on the registry? Seems that would make more sense. This question has two parts: A) What does "predatory" mean? B) What conduct would declare a person "dangerous" and how long should that label stick (human beings do change as they get older)? Sometimes questions seem like they have easy answers, until you break them down. Some states already have ways to distinguish those terms but with the coming of the Adam Walsh Act, the state systems are being disassembled in favor of a system of classification that bamboozles the public. Ohio's OLD judicial system was ordered by its Supreme court to be restored following changes mandated by SORNA. SORNA allows people not qualified to make such decisions to classify people. SORNA in no way tells the truth about registrants! Other states have decided to not adopt the SORNA way because it would disassemble years of painstaking work by state lawmakers to tell the truth about their registrants. Finally, if there way a way to clearly define "predatory and dangerous" and require them to register, no doubt registries would become much smaller and law enforcement would have less work monitoring as they say.
  • They don't make murderers register, or robbers, or arsonists. Why just us? Some states do make, murders (several states) and arsonists (CA), register, and also have "violent offenders" registries (Indiana for one). But for the most part it is just sex offenders. There are movements to create other registries for various crimes.
  • Why can't we explain to our lawmakers that these registry laws are unconstitutional? Its so obvious, any idiot can see it. Lawmakers are not idiots, they have crafted these laws to keep them in office by promoting FEAR in the general public, then the public votes for them, and they stay in office. These laws are like a train without a Engineer, the laws started as a -good idea- but now they cannot be stopped without lawmakers losing face, and likely their jobs at the next election.
  • If the state where I live hasn't enacted the Adam Walsh Act (AWA), do I still have to follow what AWA requires? See "Registry Primer" above that is covered specifically.
  • Why isn't anyone attacking the Adam Walsh Act at a national level? This questions comes up often and the answer to it requires an understanding of how lawsuits are brought into court (Jurisdictional issues) and having the right Plaintiffs (their circumstances must support the claims) and the real problem, proving their are enough people nationally that have the same problems as the plaintiffs are claiming. Then comes money and lawyers who can prove to the court they have the ability to stay the course. All difficult questions and problems to solve. It may be easier to start fight from the state level on one or two particular issues (Employment for one).
  • If we get rid of the Adam Walsh Act and SORNA, wouldn't that solve our problems? The problems faced by registrants began way before AWA and SORNA, the problems began with the first registry then got worse when that registry became a public registry and as other restrictions were added. AWA and SORNA compounded the initial problems.
  • What about a Class Action lawsuit against the Adam Walsh Act, or a State Registry? There are plenty of damages we could claim. Class actions are not started, courts must approve "Class action status" based on many factors and the issues of a case, already filed in a court. While "claiming damages" might sound easy, proving same with the Plaintiffs in the case, may not be so easy. You cannot simply say "I am damaged by XX XX XX XX etc." you must first show how laws (or other things like ordinances, policy etc.) cause each of those. And all of your facts must be proven with respect to each Plaintiff (or groups of Plaintiffs) of a case.
  • Can a group of us file a constitutional challenge and share the costs? Yes, but remember, the cases that already were heard by the U.S. Supreme court (see above) have foreclosed most constitutional issues. But time and later circumstances may very well override earlier foreclosed constitutional claims.
    Example: In Connecticut Dept. of Public Safety v. Doe "... the Court held that due process does not require the opportunity to prove a fact that is not material to the State's statutory scheme. The Court reasoned that, because the law was not based on an offender's dangerousness, but rather only on convictions, disclosing an offender on the registry without a hearing did not violate due process. ..." Today's registries are all about "dangerousness" (why classify registrants by levels, except to say, each level, is more or less, dangerous than another) and today the above U.S. Supreme court case can be distinguished with ease by a good law firm.

    Connecticut's Office of Legislative Research
    analyzed the above 2003 decision and posted this Research Piece for lawmakers in Connecticut. There are a few relevant points folks might want to know about.
I am sure there are many other questions folks might ask, but in reality, the criminal justice process is governed by rules which the court will not bend. If you can find a way to get something past the court rules, then speak to a lawyer as they may know what to do.

For now, have a great day and a better tomorrow.
eAdvocate (BACK to the Top Page)

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