Very unique argument: Lawyers claimed, that since the U.S. Court held -SORNA- cannot be retroactive, that means it is punishment. Then the lawyers -in state court- claimed their clients, who likely had similar circumstances as the one in the U.S. Supreme court, should not be required to register, hence remove them from the registry. This is a clever construction using federal law to control state law.7-18-2010 Indiana:
UPDATE 7-18: Addressing my construction of "punishment" mentioned by our reader in the comments: In Carr the court said "Having concluded that §2250 does not extend to pre enactment travel," is a way of saying, you cannot criminalize that act. When an act is criminalized, punishment follows, hence I still believe this is what Burrough's lawyers put forth in their argument in state trial court (an appeal may follow). True, they may also have mentioned Indiana's residency cases, but they do not explain the U.S. Supreme court usuage in their construction, as I mentioned above.
Appeals Follow High Court Ruling On Retroactive Listings
INDIANAPOLIS -- Three Indiana sex offenders who claimed they should never have been on the state's registry had their names removed on Thursday.
Attorneys for the men argued that the crimes were committed and the convictions handed down prior to the creation of the Indiana Sex Offender Registry in 1994, and, therefore, their clients' names should not be listed, 6News' Derrik Thomas reported.
The defendants petitioned the court, saying that having their names on the registry has hurt their chances of getting jobs and finding housing.
"Before, it was never considered punishment. It was a civil sanction, like a parking fine," said Kathleen Sweeney, the attorney for Fred Gaither, 39, who received an eight-year sentence for rape in July of 1992. "Now they are saying this is so significant and invasive and you can never get rehabilitation, and so now they are saying that it's punishment."
The challenges follow a recent ruling by the U.S. Supreme Court that the 2006 Sex Offender Registration and Notification Act, which requires sex offenders to register, did not authorize retroactive enforcement.
The Indiana Attorney General's Office said it will be vigilant in overseeing similar cases.
"Our interest is ensuring that the registry has integrity and people are on the registry that are required to register," said Attorney General Chief Deputy Gary Secrest.
There are about 70 cases in Indiana of sex offenders appealing their registry listing. There are more than 13,000 sex offenders currently on the registry. ..Source.. TheIndyChannel.com
6 comments:
I was tried and convicted in 1990, and sentenced in 1991. This was prior to there being a registry in my state, yet they not only make me register, but this year put me under a whole new set of rules. Now, instead of registering by mail once a year for 7 years I have to register in person every three months for life, and have to do any and all updates in person within three days, even if I was just in the office the previous week for my regular verification. Because I have been caught up in a retroactive situation, I believe I should also be expunged (but can't afford a lawyer).
I too was convicted in my state in 1992. Back then, there was no registry at all and no requirement to be on one.
I finished my sentence. Completed all my requirements and finished therapy too. I have not re-offended in over 10 years.
However, when BUSH signed the AWA, I am now on a "Brand New Sentence" FOR THE SAME CRIME...and this time it's for LIFE. This in NO WAY is right!!!!!
It's not right. If conviction was before SORNA was implemented and now need to register under SORNA, it is DOUBLE JEAPORDY. My fiance was convicted in 1995, he was forced to plea bargain. When he was leaving the prison, he was told to sign register or he goes back to prison, this was not part of plea. This rigestery started while he was doing time. It's not fair to be convicted again for same case. We don't see murderers and spouse beaters on this registery when they are the one who should be. We are trying to fight his case but no luck so far. Good luck with yours, I would fight this, you can have an attorney pointed to you( Public Defender)
Well I am sorry to say if Carr held that it was punishment then I would have picked that up in a heartbeat. That is not what Carr held at all:
http://www.scotuswiki.com/index.php?title=Carr_v._United_States
Just that the word travel is used in the present tense.
And they did not hold that congress could not change the wording if they so wished ....
If in fact Carr had held that mere registration was punishment that would be a huge huge plus for us but thats sadly just not the case.
But if this state's high court were to hold that just being on the registry is punishment then that is sure a good thing, and although not precedence except in that state it could be cited for example purposes, and some Courts have held that some of the restrictions beyond registration are punishment iirc.
To the guy from Nebraska look up cases from your state with google scholar.google.com (check nebraska) and when you find a case that holds that others like you were taken off the registry as their crimes were committed before its inception you can file yourself or do a search for "pro bono" in your city/state. But wait until someone else has made a case for you. Or contact your attorny general's office as when such a case occurs they will then contact all registerants that might be effected.
Ok I just read the Indiana case:
http://scholar.google.com/scholar_case?case=16221469615790431832&q=sex+offender+retroactive&hl=en&as_sdt=800004&as_ylo=2010
As expected they base it upon the residency restrictions based upon only the Indiana Constitution.
Still thats not precedence but when one states highest court holds that residency restrictions are punishment that a big step to getting it nationwide.
So if you are retroactivly subjected to a residency restriction, and I am not an attorney and give legal advise, I would contact one (or your attorney general) and see what is the status in your state.
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