Is it time, time for a new substantive challenge?

Is it time?

Has enough happened to RSOs and their families as the result of sex offender registries to warrant a new challenge on substantive grounds.

If a list were made of everything that is happening, nationally, would that be enough to sway the U.S. Supreme court to declare, if not unconstitutional, at least, stop or limit the collateral effects of sex offender registries?

What makes me think it is even possible?

Two cases went to the U.S. Supreme court:

CONNECTICUT DEPT. OF PUBLIC SAFETY V. DOE (01-1231) 538 U.S. 1 (2003)

SMITH V. DOE (01-729) 538 U.S. 84 (2003)


Quotes from the Connecticut case:

Justice Souter, with whom Justice Ginsburg joins, concurring.
I join the Court’s opinion and agree with the observation that today’s holding does not foreclose a claim that Connecticut’s dissemination of registry information is actionable on a substantive due process principle. To the extent that libel might be at least a component of such a claim, our reference to Connecticut’s disclaimer, ante, at 3, would not stand in the way of a substantive due process plaintiff. I write separately only to note that a substantive due process claim may not be the only one still open to a test by those in the respondents’ situation.

Quotes from the Alaska case:

Justice Souter, concurring in the judgment.
I agree with the Court that Alaska’s Sex Offender Registration Act does not amount to an ex post facto law. But the majority comes to that conclusion by a different path from mine, and I concur only in the judgment.

As the Court says, our cases have adopted a two-step enquiry to see whether a law is punitive for purposes of various constitutional provisions including the Ex Post Facto Clause. At the first step in applying the so-called Kennedy-Ward test, we ask whether the legislature intended a civil or criminal consequence; at the second, we look behind the legislature’s preferred classification to the law’s substance, focusing on its purpose and effects. See United States v. Ward, 448 U.S. 242, 248—249 (1980); Kennedy v. Mendoza&nbhyph;Martinez, 372 U.S. 144, 168—169 (1963). We have said that “only the clearest proof” that a law is punitive based on substantial factors will be able to overcome the legislative categorization. Ward, supra, at 249 (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)). I continue to think, however, that this heightened burden makes sense only when the evidence of legislative intent clearly points in the civil direction. See Hudson v. United States, 522 U.S. 93, 113—114 (1997) (Souter, J., concurring in judgment). This means that for me this is a close case, for I not only agree with the Court that there is evidence pointing to an intended civil characterization of the Act, but also see considerable evidence pointing the other way.


Justice Ginsburg, with whom Justice Breyer joins, dissenting.
As Justice Souter carefully explains, it is unclear whether the Alaska Legislature conceived of the State’s Sex Offender Registration Act as a regulatory measure or as a penal law. See ante, at 1—2 (opinion concurring in judgment). Accordingly, in resolving whether the Act ranks as penal for ex post facto purposes, I would not demand “the clearest proof” that the statute is in effect criminal rather than civil. Instead, guided by Kennedy v. Mendoza&nbhyph;Martinez, 372 U.S. 144 (1963), I would neutrally evaluate the Act’s purpose and effects. See id., at 168—169 (listing seven factors courts should consider “[a]bsent conclusive evidence of [legislative] intent as to the penal nature of a statute”); cf. Hudson v. United States, 522 U.S. 93, 115 (1997) (Breyer, J., concurring in judgment) (“[I]n fact if not in theory, the Court has simply applied factors of the Kennedy variety to the matter at hand.”).1

Measured by the Mendoza-Martinez factors, I would hold Alaska’s Act punitive in effect. Beyond doubt, the Act involves an “affirmative disability or restraint.” 372 U.S., at 168. As Justice Stevens and Justice Souter spell out, Alaska’s Act imposes onerous and intrusive obligations on convicted sex offenders; and it exposes registrants, through aggressive public notification of their crimes, to profound humiliation and community-wide ostracism. See ante, at 3—4, and n. (Souter, J., concurring in judgment); ante, at 1—2 (Stevens, J., dissenting in No. 01—729 and concurring in judgment in No. 01—1231).

Justice Stevens, dissenting in No. 01—729 and concurring in the judgment in No. 01—1231.*
These two cases raise questions about statutes that impose affirmative obligations on convicted sex offenders. The question in No. 01—729 is whether the Alaska Sex Offender Registration Act is an ex post facto law, and in No. 01—1231 it is whether Connecticut’s similar law violates the Due Process Clause.

The Court’s opinions in both cases fail to decide whether the statutes deprive the registrants of a constitutionally protected interest in liberty. If no liberty interest were implicated, it seems clear that neither statute would raise a colorable constitutional claim. Cf. Meachum v. Fano, 427 U.S. 215 (1976). Proper analysis of both cases should therefore begin with a consideration of the impact of the statutes on the registrants’ freedom.

The statutes impose significant affirmative obligations and a severe stigma on every person to whom they apply. In Alaska, an offender who has served his sentence for a single, nonaggravated crime must provide local law enforcement authorities with extensive personal information–including his address, his place of employment, the address of his employer, the license plate number and make and model of any car to which he has access, a current photo, identifying features, and medical treatment–at least once a year for 15 years. If one has been convicted of an aggravated offense or more than one offense, he must report this same information at least quarterly for life. Moreover, if he moves, he has one working day to provide updated information. Registrants may not shave their beards, color their hair, change their employer, or borrow a car without reporting those events to the authorities. Much of this registration information is placed on the Internet. In Alaska, the registrant’s face appears on a webpage under the label “Registered Sex Offender.” His physical description, street address, employer address, and conviction information are also displayed on this page.

The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the “[w]idespread public access,” ante, at 12 (opinion in No. 01—
729), to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7—21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. Wisconsin v. Constantineau, 400 U.S. 433 (1971).

It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender’s liberty, (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction.

.....

No matter how often the Court may repeat and manipulate multifactor tests that have been applied in wholly dissimilar cases involving only one or two of these three aspects of these statutory sanctions, it will never persuade me that the registration and reporting obligations that are imposed on convicted sex offenders and on no one else as a result of their convictions are not part of their punishment. In my opinion, a sanction that (1) is imposed on everyone who commits a criminal offense, (2) is not imposed on anyone else, and (3) severely impairs a person’s liberty is punishment.

....

Accordingly, I would hold that the Alaska statute violates the constitutional prohibition on ex post facto laws. Because I believe registration and publication are a permissible component of the punishment for this category of crimes, however, for those convicted of offenses committed after the effective date of such legislation, there would be no separate procedural due process violation so long as a defendant is provided a constitutionally adequate trial. I therefore concur in the Court’s disposition of the Connecticut case, No. 01—1231, and I respectfully dissent from its disposition of the Alaska case, No. 01—729.

If 3 out of 7 found what is mentioned above, THEN, would we have enough paper to print what they would find today?

Is it time?

eAdvocate (A smattering of my thoughts)