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THEY KEEP ADDING PUNISHMENT

 

PLEAS AND SENTENCES

 

I WANT TO GET OFF THE REGISTRY!

I did something really stupid. It hurt a lot of people. I know it was wrong, I will never, ever do it again, and my record proves it! I really don’t need to be on that list! But isn’t it okay for people who are repeat offenders?

What’s the best state for me to live in? I’m a (Tier 1/2/3.)

 

BRINGING DOWN THE REGISTRY

 

CAN THEY DO THAT?

Why do they keep adding punishment? Isn’t that double jeopardy?

It ought to be, but public registration is not considered punishment, legally speaking. The United States Supreme Court and most state courts have deemed registration to be a “civil regulatory scheme” like the permit required to own a firearm, or earning a driver’s license. As a civil regulation, it can be changed at any time by your elected representatives.

What did I do to deserve being on a registry?

Nothing. Absolutely nothing. You’re on the registry because you either were found guilty, pled guilty/no contest, or took an Alford plea to a sexual crime. But nobody – absolutely nobody – deserves the public humiliation and harassment of the public registry.

Public registration is just as bad, if not worse, than being on probation or parole! Why isn’t it considered punishment?

Most people, if you ask them, probably would say it IS punishment. Even some lawmakers agree. But the last time public registration was challenged all the way to the US Supreme Court, that court decided registration was NOT punitive. And at that time, it probably wasn’t. You mailed in an update once a year, and your picture was on the Internet. That’s it. But much has changed since then, and a new case must be taken to the Supreme Court to change that decision.

They don’t make murderers register, or robbers, or arsonists register. Why just sexual offenders?

Actually, some states do register other categories of offender. There was even a push for registries for animal abusers recently. This is another strong reason why we must stand up and fight. Once the public has grown to accept such a terrible infringement on one group’s liberties, the government will feel free to take that liberty from others – all in the interest of public safety and the common good, of course!

What does the public have a right to know?

The public has a genuine right to have access to a person’s conviction records. These have always been public, and are increasingly easy to locate as states and counties move to online data storage. AFTER supervision is complete, however, does the public have the right to:

  • Track a person’s every move?
  • Receive constant updates of personal information?
  • Receive notifications when a former offender moves into the neighborhood?
  • Know what vehicles a person owns or drives?
  • Know where that person attends school?
  • Know where that person is employed?

The constitutionally-correct answer is a resounding “NO.” Until former offenders take a stand against these encroachments on their liberties, however, things will continue to get worse.

 

PLEAS AND SENTENCES

I took that plea because I was assured that conviction did not require registration (or only required X years). How can the State now tell me it’s more?

As long as registration is considered to be a civil regulatory scheme, the State is allowed to change the registration requirements whenever it sees a “public safety” need. Unlike the courts, lawmakers have not made any agreements with the person convicted of the sex offense. If lawmakers believe that changing public registration requirements will keep children safe, they can simply draft a law to change those requirements, and the law is presumed to be constitutional.

I didn’t actually commit a crime! My attorney said I had a choice between taking that plea or facing an unsympathetic judge/jury and getting huge amounts of jail time. Can’t I withdraw my plea?

In a word, no. In multiple words, withdrawal of a guilty plea is possible but extremely difficult. You would have to be willing to hire a lawyer, present lots of solid evidence that establishes your actual innocence that was not available at the time of your plea, and hope that the judge/jury is more sympathetic than your original lawyer predicted. In other words, it’s a crap shoot.

My judge sentenced me to X years of registration. Shouldn’t that be all I have to do?

You aren’t going to like this answer: In most instances, your judge actually did not “sentence” you to a particular period of registration. He/she merely pointed out that the duty to register would be a consequence of your conviction. In most jurisdictions, a judge has no control over the duration of your registration. The Court merely advises that the conviction itself will trigger registration requirements at the time it imposes the sentence.

I don’t have huge amounts of money for a lawyer. Won’t anyone take my case out of the goodness of their heart?

It is not impossible. But it is very unlikely. Think of it this way: How much of your time would YOU be willing to give? Say you’re lucky, and are putting in 50-60 hours a week as an independent businessperson. Would you willingly set aside 10 or more hours each week, for several weeks or more, and pay significant out-of-pocket expenses, to get a stranger out of a tough situation? The state will vigorously defend these laws; therefore, any challenge requires financial resources that most small law firms simply cannot provide pro bono. If you still want to try, expect to spend many hours searching for an attorney, and to get numerous rejections.

Can you recommend a lawyer who would help me? I have a little money left, but not much.

That depends on what you want the lawyer to do. If you simply want to complain about having to register, there is nothing he/she can do. If you want to challenge some constitutional aspect of registration, there might be an attorney in your state interested in pursuing that angle. You might also check out THIS ANSWER.

My lawyer told me I’d better plea bargain, so I did. Now I’m regretting it. Can I do anything about it now?

Not likely. Withdrawal of a plea is extremely difficult in most situations You would have to prove that your plea was not “knowingly and intelligently” entered, and that is all but impossible because of the string of questions you were asked at the time of the plea. Those questions were asked for the sole purpose of preventing you from having “buyer’s remorse” later.

 

I WANT TO GET OFF!

This whole business is insane! What can I do to get off the public registry?

As an individual? Not much. Because the courts have deemed public registration regulatory, rather than punitive, most states do not provide any means for appealing your registration status. As a collective, we do have several options. First, we can initiate a legal challenge on various constitutional grounds. Second, we can build a coalition of like-minded community people and propose new laws that correct some or all of the most egregious problems with public registration. Third, we can find ways to educate the general public on the truth about registered persons, and dispel the media hype that is largely responsible for that Scarlet Letter.

I never even touched anyone! Somebody like me doesn’t need to be on that list! But isn’t it okay for people who actually touched a child?

Nobody – absolutely NOBODY – deserves the humiliation of public registration. It is simply a government-sponsored form of harassment, and there is no clear evidence that public registration has been effective in preventing sexual abuse of minors or adults. Those of us who are in this fight must ALL pull together to fight public registration. If someone needs to be supervised in the interest of public safety, that supervision should be a part of his/her actual sentence, and does not need to be publicized to be effective.

It was totally consensual! Somebody like me doesn’t need to be on that list! But isn’t it okay for those people who forcibly harmed someone?

Nobody – absolutely NOBODY – deserves the humiliation of public registration. It is simply a government-sponsored form of harassment, and there is no clear evidence that public registration has been effective in preventing sexual abuse of minors or adults. Those of us who are in this fight must ALL pull together to fight public registration. If someone needs to be supervised in the interest of public safety, that supervision should be a part of his/her actual sentence, and does not need to be publicized to be effective.

I did something really stupid. It hurt a lot of people. I know it was wrong, I will never, ever do it again, and my record proves it! I really don’t need to be on that list! But isn’t it okay for people who are repeat offenders?

Nobody – absolutely NOBODY – deserves the humiliation of public registration. It is simply a government-sponsored form of harassment, and there is no clear evidence that public registration has been effective in preventing sexual abuse of minors or adults. Those of us who are in this fight must ALL pull together to fight public registration. If someone needs to be supervised in the interest of public safety, that supervision should be a part of his/her actual sentence, and does not need to be publicized to be effective.

Why can’t we just put the really bad, dangerous predators on the registry? That makes so much more sense!

Once again – NOBODY deserves the humiliation of public registration, and we in this cause must work together as EQUALS to fight it. If someone needs to be supervised in the interest of public safety, that supervision should be a part of his/her actual sentence, and does not need to be publicized to be effective. As an interim measure, it would certainly be more practical and cost-effective to have only those with truly predatory histories on a registry. This would eliminate the need for up to 80% of former sexual offenders having to register!

Where can I move where I don’t have to register?

Moving to other jurisdictions to avoid registration is probably not an option. Most states have catch-all provisions in their registration laws that require a new arrival to register if that person is obligated to register in the convicting state. If you move and choose not to register, it is possible that the feds would prosecute you under the AWA’s “Interstate Travel” clause, which states that a person who travels across state lines (after enactment of the AWA) must keep his/her registration current. The federal penalty for a conviction is quite severe.

What’s the best state for me to live in? I’m a (Tier 1/2/3.)

We don’t get into the referral business. Here’s why:

  • What looks like green pastures one day will turn into Hell the next with our ever-changing laws. It’s impossible for anyone to keep totally accurate information on all 50 states plus territories.
  • What seems like an “easy” burden for one person could be a deal-breaker for another. Say, one person is a homebody but another travels frequently for work. Reporting all travel in advance or providing itineraries would be harsh for the second person, but not the first.
  • Every state has differences in how it tiers or levels registrants. A “tier 1” with 3 years left in a 10-year term could move to another state and find himself to be in “level 2” and on the list for lifetime. If you are contemplating a move, the best recommendation we can give is for people to visit the “Megan’s Law” section of KlaasKids.org. RSOL does not approve of all their content, but they do try to keep updated lists of registration requirements for every state.

Finding out what your registration level would be takes even more digging. You may need to contact the state’s registry office directly.

How can I get myself off the registry?

There is no way to just “get off the registry.” Most states do not even have an appeal process in place. You basically have two legal options, and one legislative option.

  1. You can file a personal challenge in the hope that you can get your original conviction overturned or reversed. This is an extreme long shot, especially if you entered a guilty plea bargain or Alford Plea. Withdrawing a plea is extremely rare. It will mean re-opening your case, and the probability of being convicted and sentenced. If you are convicted after a new trial, the sentence would most likely be more severe than the first one was. That is the risk you take.
  2. You can file a constitutional challenge, claiming a retroactive increase in punishment, prior restraint on travel, or whatever claim works best depending on your state’s laws. This is expensive, you will need a good lawyer who handles constitutional claims, and like any legal challenge, there is no guaranteed outcome.
  3. You can lobby to change or remove the registry laws and regulations in your state of residence.

 

BRINGING DOWN THE REGISTRY

Can’t we all just lay low and keep quiet? This insanity is bound to stop at some point, right?

No, it will not stop. “Sex Offenders” are the new lepers of modern society. Many people believe that they are no longer humans. Look at the Jews in the Holocaust. Look at the early Christians in Rome. We must stand up and stand proud, and let everyone know that once our punishment is complete, we deserve the same respect that any other human being deserves, and should receive the same treatment from our government as any other US citizen.

Why can’t we just explain to our lawmakers that these laws are unconstitutional? It’s so obvious any idiot can see it!

We can explain until we are blue in the face. If we are good at explaining, our lawmakers will “get it.” But then they have to be willing to propose changing the laws. And they are every bit as terrified of taking a stand against sexual offender registration, as are the registrants themselves.

Taking my case back to court to challenge the registry is scary! Someone might harass or threaten me/my family/my employer/etc. Is there any way to avoid that risk?

No. But there is also significant risk in doing nothing at all. As long as lawmakers and law enforcement think nobody cares what they do, they WILL continue to make things worse. But once we start to fight back we will begin to see change.

I don’t know enough about politics or government. What could I say that would persuade my representatives that they should change the laws?

As an individual, the biggest thing you can do is let your legislator know how these laws have impacted your life. Tell them what you have done to improve yourself as a person, how hard you have worked to move on, how certain you are that you are NOT a danger to ANYONE. Explain how doors are shut in your face when you apply for work, try to rent a room or apartment, or attempt to take classes at the local community college. If you are a member of your state’s advocacy group, they may be able to help you develop a public testimony for use at a hearing when a new law is introduced. Or perhaps there will be specific letters to write. The important thing is to GET INVOLVED. You can learn as you go along!

I’m afraid of speaking to my representatives. Couldn’t I get arrested/seen on TV/harassed?

It’s very unlikely that you will be arrested for communicating with an elected official, because that is your right. You are their constituent, and represent a potential vote for them in the next election. They will listen to you – even if they don’t much care for “sex offenders” as a whole. You simply can make an appointment with your representative, and talk with him/her in an office. Be on your best professional behavior, and share your message as concisely and clearly as possible. Will it change his/her mind? Maybe not – but no harm will come from it.

Public testimony does carry some risk but you will not be arrested just for testifying at a hearing. Even people under supervision have that right. However, you might be recognized or your face could be shown on television. If you aren’t “out” with your employer or neighbors, or if law enforcement in your jurisdiction tend to be unfriendly to registrants, that could mean trouble. If this is a show-stopper for you, consider sending WRITTEN testimony instead.

Why isn’t anyone attacking the Adam Walsh Act (AWA) at a national level?

Keep in mind that the federal government does not operate sex offender registries, the states do. Congress passed the AWA in 2006 hoping to convince the states to strengthen their registries, and offered them financial incentives to do so. At the same time it threatened them with a 10% reduction in their Byrne Grants if they did not. The only realistic challenge that can be mounted at the federal level is seeking the repeal of the AWA.

What about a Class Action lawsuit? There are plenty of damages we could claim.

Class Action Lawsuits are vastly misunderstood. First, it is extremely difficult to have a case certified as a “Class Action.” The Plaintiff seeking such a certification must convince the Court that he/she can adequately represent the interests of all class members. This includes providing all class members written notice of the action along with their option to opt out of the class. Second, recovery of any damages would be most unlikely since there is simply no case law to support the theory that registration in and of itself inflicts additional damage beyond what is caused by the underlying conviction.

Is it better to challenge the registry at a state level?

Probably, but not necessarily. It varies greatly from state to state because some state constitutions provide greater ex post facto protections for state citizens than the U.S. Constitution does. In fact, there have been several (limited) ex post facto favorable decisions already handed down by state supreme courts.

I asked my lawyer about filing an Ex Post Facto claim. He’s all for it… but wants a five digit retainer just to START! Isn’t that excessive?

That is a large amount of money for most registrants, but it is not excessive due to what is involved in this type of litigation. Your state will diligently fight every challenge to registration, and it has unlimited financial resources to use against you. You can expect a long protracted battle, and if you should be granted relief, the state will almost certainly appeal.

Could a bunch of us file a constitutional challenge together, and share the cost?

That has been done in some jurisdictions. However, it can complicate the issue. Each Plaintiff has different facts surrounding his/her underlying conviction, e.g., date of commission, age of victim. Since it has already been determined that registration in and of itself is not facially unconstitutional, that means all the challenges will be on an “as applied” basis. More Plaintiffs mean that the case will proceed at a slower pace and that the Court’s overall analysis could be unfavorably impacted by a particular Plaintiff’s facts.

If we can get rid of the Adam Walsh Act and SORNA, wouldn’t that solve our registry problems?

No it would not. Repeal of the AWA would only (1) remove the feds’ ability to prosecute those that travel to other jurisdictions and fail to register or keep their registrations current, and (2) remove the threat of financial penalties for states that are non-complaint. Even if the AWA were repealed, all 50 states would still have sex offender registries. However, you can be certain that no state would rush to repeal its registration laws.

Shouldn’t there be a challenge to the “one size fits all” federal law, to get these things done on an individual basis with facts of the case considered?

We agree that challenges should be made where appropriate. However, there will never be a single federal case that will bring down the registry once and for all. Registration of sex offenders is not done by the federal government. There are 50 distinctly different registry schemes in operation around the United States. Some are more punitive than others. Some registrants only report by mail for 10 years and their street address is not published on the internet. For these people, registration has not been sufficiently transformed by crazy politicians to the point that it is unconstitutional.

Don’t interpret this as endorsement of registration schemes. We firmly believe that all registration schemes should be abolished. We also agree that it would be preferable if more states utilized a risk-based approach. However, that is a policy choice for our elected officials to make. The courts do not have the authority to save us from bad policy choices made by our elected officials. They can only strike down laws that clearly violate the constitution. In that situation, it is OUR burden as the challenging party to demonstrate by the “clearest of proof” that a law is unconstitutional.

When a particular state crosses that line and registration requirements become punitive, RSOL believes that the law should be challenged. Please understand that constitutional challenges are very expensive, because every state will vigorously defend its duly enacted laws. We would love to undertake challenges all over the United States but lack the financial resources to do so. Will you join and support us?

 

CAN THEY DO THAT?

I had to manage my mother’s funeral and was late registering. Now they’ve charged me with a new felony offense and tell me could spend up to five years in jail or on probation. What should I do? Is there any way out of this?

As a general rule, you should always have competent legal counsel when facing criminal charges. Maybe you will get a reasonable prosecutor who will consider the circumstances and choose not to proceed. Even if you are formally charged with and convicted of a registry violation, however, most courts do not impose the maximum sentence, and at the state level often impose probation.

Registry officers have come to my door, along with US Marshalls, and asked to inspect my home. I am no longer under probation/ parole supervision! Can I tell them “no?”

Absolutely you can tell them no, but only if you’ve completed all supervision. In order to enter a non-supervised person’s home, a law enforcement officer needs either a warrant, or the person’s permission. Remember, though, that your housemate or a family member might unknowingly open the door and invite them in. At that point, arguably they have been granted permission to enter the residence.

I am on probation, and officers are showing up at my home late at night, pounding on my door, scaring my spouse and kids, and doing a commando-style search of my home. Is that legal?

As a general rule, your probation/parole officer has the right to visit and enter your home with no notice. However, there may be departmental policies or case law in your state that limits their visits to reasonable hours. If your state’s probation/parole supervision policies are on the Internet, you can check there for specifics.

My parole officer is telling me I have to show up in her office within the hour, or she’s going to violate me. Problem is, I’m at work and need more time to arrange transportation. Can she really violate me for that?

The short answer is that there is not much you can do once such a directive has been issued. However, you can take steps to make such a difficult request less likely in the first place. Provide your supervising officer with a current copy of your work schedule. Make sure that you can prove you have given it to him/her! This is best accomplished by faxing a copy of it and keeping the confirmation sheet. Do not ask for a signed receipt from the officer. This will put him/her on the defensive.

My husband has come home on probation. He has no restrictions that prohibit him from being around children, but Protective Services comes around weekly, telling me I have to submit to a home inspection or else they will take away my children by a prior marriage, and put them in foster care. Can they really do that?

It is possible that they can – but in most jurisdictions the standard for removal of children is that Protective Services must be able to prove that the child is suffering some form of abuse or neglect. Simply having a registrant in the household would not meet that standard in and of itself. However, that might not stop Protective Services from contacting your supervising officer and requesting the imposition of restrictions.

I am receiving letters from someone who is threatening harm to me, calling me a pervert and worse. He has also posted signs all around my block ‘warning’ people about me. Should I call the police?

Many states have language in their registry laws that prohibit such conduct, and provide for both civil and criminal penalties. If you can prove that a particular person is engaging in such behavior, you should certainly file a complaint. Filing a police report provides documentation of the harassment which you might later need in court. However, do not expect a robust response from the police, due to your status as a registrant.

I know my picture is on the registry for all to see, but what about the many other sites out there that “borrow” my registry listing and add lots of incorrect information, and deliberately make me look like a world-class creep?

There is no good answer to this question, because there is no case law out there that offers guidance. These private listing sites think it’s okay to call all registrants predators, pedophiles, or child molesters. We disagree – but until there is a successful lawsuit that is upheld on appeal, they probably will not stop. Unfortunately, an attorney would hesitate to take this litigation on a contingency fee basis, because his/her chances of recovery are slim.

I am terrified to leave my home. It seems that everyone must know about my registry status. I gave up trying to get work several years ago because nobody would hire me. What can I do?

First, understand that you are not alone. Call the Hotline if you need to talk to someone who understands.

The next step is to take action! Check on this web site to find an advocacy group in your state and contact them. Try to attend a meeting if this is practical. Or, join a forum such as SOSEN’s. Become part of something bigger than just yourself. It makes a world of difference.

If you are feeling suicidal, or truly are unable to function, please – seek professional help as soon as possible. This cause needs YOU to be involved!

Our county sheriff is out grandstanding about getting tough on sex offenders. He says he wants to see every one of us either dead or behind bars! I’m both angry, and terrified. What can I do?

Certainly the fact that an elected official is out grandstanding is disappointing. However, grandstanding about sex offenders is not uncommon for an elected official, and the sheriff is entitled to his/her misguided views. This is precisely why educating our elected officials is so crucial. A sheriff of all people should already know that there are many people listed on registries that have never touched a child inappropriately or committed a predatory act.