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For those that are not clear, here is a little break down of Smith v. Doe:
Smith v. Doe is a case that made its way to the US Supreme Court and was decided in 2003.
The question at hand was, "Does the Ex Post Facto Clause of Article I Section 10 prohibit the Alaska Sex Offender Registration Act's registration requirement as a retroactive punishment?"
In a 6-3 decision, the Supreme Court held that because sex offender registration is non-punitive it does not violate the Ex Post Facto Clause. (1)
Now that we have a brief idea of what the case was about and what was decided let's look at the justices and see what they decided and see if we can gleam any opinion on future decisions based on where they lean politically. In order to do this we must have a basic understanding of the ideologies of the Supreme Court justices back in 2003 when Smith v. Doe was decided and now in 2015.
2003: The Supreme Court in 2003 had 4 conservatives (Rehnquist, O’Connor, Scalia, and Thomas), 4 liberals (Souter, Breyer, Ginsburg, Stevens), and one swing vote (Kennedy) (2)
2015: The Supreme Court in its current iteration has 4 conservative justices (Scalia, Thomas, Roberts, and Alito), and 4 liberal justices (Ginsburg, Sotomayor, Kagan and Breyer), and one swing vote (Kennedy) (3).
Now in 2003 the 6 justices who declared that the registry is not punishment so it does not violate the Ex Post Facto Clause were the four conservatives, (Rehnquist, O’Connor, Scalia, and Thomas), the swing vote (Kennedy), and one liberal (Souter).
So if we look at who is still on the court today, we can see we would lose again because it is 3-2 against us. The 3 justices who voted against us in 2003 that are still on the court are Scalia, Thomas, and Kennedy. The 2 justices who voted for us in 2003 that are still on the court are Ginsberg and Breyer.
This is next part requires some extrapolation, this is where we may disagree, but I think it should be plain to most people how the newly appointed Supreme Court Justices will vote. And if you believe otherwise I would love to hear what evidence you have to support such conclusions.
Let’s look at the 4 other Supreme Court justices who made the bench since 2003 and took the place of four of the justices in Smith v. Doe.
Alito: Appointed by George W. Bush in 2006, is the most conservative person on the bench. Would most likely follow lines with the majority and vote to keep the registry. (3)
Roberts: Chief justice, appointed by George W. Bush in 2005, he argued for the government in Smith v. Doe, so there is literally zero doubt on his stance, he is clearly a no vote for the registry being against the constitution. (3)
Kagan: Appointed by Barack Obama in 2010, the most liberal of all justices on the court. There is little doubt in my mind that she would side with the other liberals and say the registry is an Ex Post Facto violation of the constitution. (3)
Sotomayor: Appointed by Barack Obama in 2009, the 2nd most liberal justice on the court. I also have little doubt that she too would support the liberal opinion and join Ginsburg and Breyer. (3)
Conclusion: If we took another sex offender registry case to the Supreme Court in its current iteration, we would most likely lose a 5-4 decision split right down ideological lines of liberal versus conservative.
Works cited:
1. http://www.oyez.org/cases/2000-2009/2002/2002_01_729#sort=vote
2. http://www.targetpointconsulting.com/scotusscores-labels.html
3. http://www.nytimes.com/2014/06/27/upshot/a-more-nuanced-breakdown-of-the-supreme-court.html?_r=0&abt=0002&abg=1
Smith v. Doe is a case that made its way to the US Supreme Court and was decided in 2003.
The question at hand was, "Does the Ex Post Facto Clause of Article I Section 10 prohibit the Alaska Sex Offender Registration Act's registration requirement as a retroactive punishment?"
In a 6-3 decision, the Supreme Court held that because sex offender registration is non-punitive it does not violate the Ex Post Facto Clause. (1)
Now that we have a brief idea of what the case was about and what was decided let's look at the justices and see what they decided and see if we can gleam any opinion on future decisions based on where they lean politically. In order to do this we must have a basic understanding of the ideologies of the Supreme Court justices back in 2003 when Smith v. Doe was decided and now in 2015.
2003: The Supreme Court in 2003 had 4 conservatives (Rehnquist, O’Connor, Scalia, and Thomas), 4 liberals (Souter, Breyer, Ginsburg, Stevens), and one swing vote (Kennedy) (2)
2015: The Supreme Court in its current iteration has 4 conservative justices (Scalia, Thomas, Roberts, and Alito), and 4 liberal justices (Ginsburg, Sotomayor, Kagan and Breyer), and one swing vote (Kennedy) (3).
Now in 2003 the 6 justices who declared that the registry is not punishment so it does not violate the Ex Post Facto Clause were the four conservatives, (Rehnquist, O’Connor, Scalia, and Thomas), the swing vote (Kennedy), and one liberal (Souter).
So if we look at who is still on the court today, we can see we would lose again because it is 3-2 against us. The 3 justices who voted against us in 2003 that are still on the court are Scalia, Thomas, and Kennedy. The 2 justices who voted for us in 2003 that are still on the court are Ginsberg and Breyer.
This is next part requires some extrapolation, this is where we may disagree, but I think it should be plain to most people how the newly appointed Supreme Court Justices will vote. And if you believe otherwise I would love to hear what evidence you have to support such conclusions.
Let’s look at the 4 other Supreme Court justices who made the bench since 2003 and took the place of four of the justices in Smith v. Doe.
Alito: Appointed by George W. Bush in 2006, is the most conservative person on the bench. Would most likely follow lines with the majority and vote to keep the registry. (3)
Roberts: Chief justice, appointed by George W. Bush in 2005, he argued for the government in Smith v. Doe, so there is literally zero doubt on his stance, he is clearly a no vote for the registry being against the constitution. (3)
Kagan: Appointed by Barack Obama in 2010, the most liberal of all justices on the court. There is little doubt in my mind that she would side with the other liberals and say the registry is an Ex Post Facto violation of the constitution. (3)
Sotomayor: Appointed by Barack Obama in 2009, the 2nd most liberal justice on the court. I also have little doubt that she too would support the liberal opinion and join Ginsburg and Breyer. (3)
Conclusion: If we took another sex offender registry case to the Supreme Court in its current iteration, we would most likely lose a 5-4 decision split right down ideological lines of liberal versus conservative.
Works cited:
1. http://www.oyez.org/cases/2000-2009/2002/2002_01_729#sort=vote
2. http://www.targetpointconsulting.com/scotusscores-labels.html
3. http://www.nytimes.com/2014/06/27/upshot/a-more-nuanced-breakdown-of-the-supreme-court.html?_r=0&abt=0002&abg=1
To put it another way the Supreme Court will always decide this way until a case is brought before them that actually forces them to address the question of whether the actual registry is punitive or not. In the case you mentioned that does not happen.
The Supreme Court very rarely likes to lead public opinion, but they tend to make decisions more in line with public opinion. I wish I could post this article:
http://onlinelibrary.wiley.com/enhanced/doi/10.1111/j.1540-5907.2010.00485.x/
This is why I always harp on the positive stories. We need a lot more of these stories to start turning public opinion and eventually see the supreme even willing to rule on it again.
There is enough difference between our current schema of registering to distinguish it from the Supreme Court Smith Case in 2003. Social Media has significantly changed the distribution of data and is now akin to public shaming. Part of overcoming the 2003 Supreme Court case is proving the difference. In 2003 the SC ruled that registering was civil and therefore not a punishment and therefore able to be applied ex post facto.
In considering whether something is "punishment" or not "Mendoza-Martinez" factors are used.
The Mendoza-Martinez factors :
1. Affirmative Disability or restraint - back in 2003 the SC failed to find the AK registry to be restraining, but with new laws requiring in person reporting, high fees, reporting of travel, cars, email addresses, etc, the process of registering is now restraining. It causes housing problems both because of residency restrictions and discrimination against renters who are SO's. It also affects employment because companies don't want to hire anyone whose crime is so visibly public because it may impact their business.
2. Retribution and Deterrence- If a civil scheme aims to be retributive or deterrent then it's more punishment than regulatory. I know you don't need me to expound on IL's "deterrence" motive for keeping sex offenders out of parks, schools, trails, McDonald's, etc. This argument may or may not be effective but I think it's one we need to work into the greater lawsuit or challenge.
3. Traditional Shame & Punishment - In colonial times offenders were held face-to-face with the public in the town square for shaming. Our social media and constant media attention / reporting on sex offenders is akin to the town square. More than that - the Mendoza-Martinez factors hold that if the regulatory scheme resembles traditional punishment then it's meant for punishment. Our restrictions in housing, schools, parks, forest preserves, celebrating holidays, going to privately owned but publicly accessed areas for kids, etc, are traditionally seen as temporary probation or parole restrictions not lifetime restrictions that IL creates.
4. Rational Connection to Non-Punitive Purpose - All the restrictions and registry in general is meant to promote public safety. That's the "non-punitive purpose". So is it working? Do the residency, school, etc, restrictions really create a safer environment? There are many many studies that point to a big fat "NO".
5. Excessiveness - are the restrictions excessive in relation to its non-punitive purposes? It doesn't account for an individual's risk of recidivism - all sex offenders are lumped into categories. There is no way to EVER remove the restrictions. I've been off the list for years and can't go to the park to watch a t-ball game or drop my kids off at school (without a lot of hassle and scrutiny). In addition to excessivness in nature of restrictions there is also excessiveness in punishment for failing to register / being present somewhere. Criminal punishments / jail / felonies are applied to what is a civil regulatory scheme. The stigma also makes it excessive - the stigma of being a sex offender (and so publically known) is so harsh it prevents both the offender and their family from living a normal life.
The factors above are clearly indicative of punishment not "regulatory"
My point is we should win from a logical point of view. I think Ivy did a great job of outlining the punishment factors and this is clearly punishment. However, this is just not a logical issue but an emotional one. You mix fear and emotion together with out a good helping of logic and this RSO mess is what you get. Dysfunctional laws that are increasingly more and more draconian.
So yes the facts should support the registry going away or at least the ex post facto requirements, but I just do not see how they would make that decision. If you believe that all of the conservative justices who decided against us would turn around and support thus ending of the registry, you have more faith in them than I do. Especially with the lawyer who argued for the government as the Chief Justice. I don't have that much faith.
From 2009.
firstamendmentcenter.org/initial-look-at-sotomayors-first-amendment-record
"What tips the scale for me is the presumption of constitutionality normally accorded a State's law. That presumption gives the State the benefit of the doubt in close cases like this one, and on that basis alone I concur in the Court's judgment."
Who's to say another liberal justice wouldn't come to that very same conclusion?
On top of that Smith v Doe only discussed whether or not the Alaska Sex Offender Registration Act violated the ex post facto clause not SORNA, the registry in any other state or the overall Constitutionality of any registry. In this specific case the Alaska statute does not mandate any specific procedures or criminal process but instead delegates the authority to implement regulations to the Alaska Department of Public Safety. While that department handles both civil and criminal matters its regulatory rule making authority is purely civil which makes for a strong indication the Alaska legislature did indeed implement its registry as a civil scheme. Had the legislature turned everything over to the Alaska State Troopers the inquiry could very well have ended there because that would be a strong indication that the Alaska legislature was implementing the registry as a criminal scheme. As it is the court still did an analysis using the Mendoza-Martinez factors, Using those factors to analyze registration legislation in another state or even at a different time could very well lead to a completely different result.
In this case the appellate court reasoned that periodic in person updates imposed an affirmative disability. The problem the Supreme Court had with this reasoning is there is nothing in the statute that requires in person updates and there was nothing in the record showing Alaska was requiring offenders to make updates in person. Whether or not Alaska actually does impose in person updates is immaterial without evidence on the record that it does and no court should make blind assumptions like that. Since the majority took the time to point this out it is likely the analysis would have gone differently had there been evidence on the record.
The appellate court also reasoned that registration was similar to probation or supervised release. This argument was rejected by the majority but even they admitted it had some force. Had there been evidence on the record of an in person requirement it is likely that force would have been greater. The majority went on to hint that there might even be other possible constitutional objections that could be raised but also noted that those objections would be beyond the scope of this opinion since the specific question the Court was answering was solely about an Alaska statute violating the ex post facto clause.
To simply assume any challenge to the registry heard by the Supreme Court today would be split along political lines is incredibly short sighted and this case is a good example of why. All the clues on how to achieve a different result are in the majority opinion and the dissents but it will never happen if you don't pay attention and make blind assumptions.
I understand the nuances of concurring opinions, dissenting in part, separate opinions etc and you are right in that respect, that those parts of the decisions are more nuanced. However, if there is a split, it is almost ALWAYS 5-4 split along party lines.
http://www.theatlantic.com/politics/archive/2012/06/the-incredible-polarization-and-politicization-of-the-supreme-court/259155/
http://supremecourtreview.com/default/charts/creator
The most common decisions are 9-0, second most common is 5-4.
---------------
Aladdin: “The majority went on to hint that there might even be other possible constitutional objections that could be raised but also noted that those objections would be beyond the scope of this opinion since the specific question the Court was answering was solely about an Alaska statute violating the ex post facto clause.”
And yes Aladdin, the justices were alluding to what may have been a better avenue to bring this case forward instead of Ex Post Facto, which was substantive due process. I disagree with them though in this case. I think if a family court gives control of a minor child back to someone previously convicted of a sex offense, there must be a VERY good reason to believe they are rehabilitated. That is unheard of in family court. And then to have these restrictions placed on him after the fact he has served his time and been rehabilitated, I think that was a great way to go for him.
Substantive Due Process: “A doctrine holding that the 5th and 14th Amendments require all governmental intrusions into fundamental rights and liberties be fair and reasonable and in furtherance of a legitimate governmental interest. The U.S. Supreme Court during the middle of the 20th Century used substantive due process to give added force to the 4th, 5th and 6th Amendments of the U.S. Constitution by constraining certain actions by law enforcement, prosecutors, and judges."
https://www.law.cornell.edu/wex/substantive_due_process
Aladdin: “To simply assume any challenge to the registry heard by the Supreme Court today would be split along political lines is incredibly short sighted and this case is a good example of why. All the clues on how to achieve a different result are in the majority opinion and the dissents but it will never happen if you don't pay attention and make blind assumptions.”
I am not making blind assumptions, I want to stack the deck so to speak. I want to make sure when we can get a great case to the Supreme Court we will win it. It has been the opinion of most on here that our political leaders from both parties are equally bad when it comes to supporting rights for sex offenders. I agree that both parties are not our friends, but I see a greater potential for liberal politicians to potentially help us in the future. My opinion that liberal politicians may be more likely to help us in the future is conjecture. However, you could not say the same thing of the Supreme Court. Go back and look at sex offender cases in the Supreme court and you will see the conservative block is not our friends.
Kansas v. Hendricks: Basically this case asks is civil commitment okay and not a violation of a person’s substantive due process rights under the 5th and 14th. It was a split 5-4 decision, 4 conservatives and 1 swing vote versus 4 liberals.
Kansas v. Crane: Basically asked can the state throw a person in civil commitment even if they do not have a finding of lacking self control. This was a 7-2 decision in our favor the two opposing justices are still on the bench today, Scalia and Thomas.
Smith V. Doe: See original post, 4 conservatives, 1 swing vote, and 1 liberal vs 3 liberals.
Paroline v. United States: In a 5-4 decision held that CP victims should get restitution but viewers of CP should only be held liable for their own conduct. In other words the restitution amount per CP offender was much too high, this limits damages a victim can receive. Split 1 conservative (Alito), 1 swing vote, and 3 liberals versus 3 conservatives and 1 liberal.
.
If you tallied up these four cases and broke it down by liberal and conservative that ruled against us:
Conservatives that ruled against us: 4 in Kansas v. Hendricks, 2 in Kansas v. Crane, 4 in Smith v. Doe, and 3 in Paroline v. United States. (*13 total or 76.47%)
Swing votes against us: 1 in Kansas v Hendricks, 1 in Smith v. Doe (*2 total OR 11.76%)
Liberals who voted against us: 1 liberal in Smith v. Doe, 1 liberal in Paroline v. United States. (*2 total or 11.76%)
If you tallied up these four cases and broke it down by liberal and conservative on who ruled for us:
Conservatives that ruled for us: 2 in Kansas v. Crane, 1 in Paroline v United States (*3 or 15.7%)
Swing votes that voted for us: 1 in Kansas v. Crane, 1 swing vote in Paroline v. United State (*2 or 10.5%)
Liberals who voted for us: 4 in Kansas v. Hendricks, 4 in Kansas v. Crane, 3 in Smith v. Doe, 3 in Paroline v. United States (*14 or 73.68%)
I am not trying to make the claim that this is a perfect representation of how they will vote in the future, but you can see by the past cases which block has supported us the most.
http://tinyurl.com/pjrdeza
rewdiazepam
"Writing on a different subject entirely, Eula Biss recently observed:
Risk perception may not be about quantifiable risk so much as it is about immeasurable fear. Our fears are informed by history and economics, by social power and stigma, by myth and nightmares. And as with other strongly held beliefs, our fears are dear to us. When we encounter information that contradicts our beliefs, we tend to doubt the information, not ourselves."
What a salient point!
For those that do not want to read the whole thing, the tl;dr version:
The label “sex offender” triggers fear, and disgust as well. Both responses breed beliefs that do not yield easily to facts. That’s why even those politicians now urging criminal justice reforms conspicuously omit mentioning sex offenses when they argue for less punitive policies that would facilitate the offenders’ reintegration into civil society.34 Unfortunately, the Supreme Court has fed the fear. It’s become the “go to” source that courts and politicians rely upon for “facts” about sex offender recidivism rates that aren’t true. Its endorsement has transformed random opinions by self-interested nonexperts into definitive studies offered to justify law and policy, while real studies by real scientists go unnoticed. The Court’s casual approach to the facts of sex offender re-offense rates is far more frightening than the rates themselves, and it’s high time for correction. Perhaps there’s now hope it may soon happen."
Here is to hoping, but I'm not holding my breath.
The standard of review is not was the legislature correct when it concluded sex offenders have a high rate of recidivism. The real question is simply could the legislature have reached that conclusion. The conclusion doesn't have to be logical, correct or even all that reasonable so long as it isn't based on an unconstitutional premise like say race or gender, just could it be reached. That's a very high bar to overcome so it wasn't worth anybody's time and effort to refute the claim because even if they had all it would take is one study showing that says sex offenders do have a high rate of recidivism to be able to say the legislature could have reached the same conclusion so on this point Doe's attorneys made the right move. Where they screwed up however was in not covering all the bases to begin with. Not getting any proof of in person reporting requirements on the record was utterly incompetent. Even the government assumed it was a requirement and the court seized on the lack of anything demonstrating that.
I don't disagree with you on the way it should be, I disagree with you on how it is. I won't believe they will ever let sex offenders off our leash until they actually do so. I want to do everything to stack the deck in our favor. Simply looking at all of the Supreme Court decisions onnsex offenders, it doesn't take a genius to realize we have more support from the liberal block than conservative block. If we could get another liberal on the court to replace Scalia or Thomas and keep liberals in Ginsburg and Breyer's spot, I would feel much better about our chances.
So in your view do the ideologies not mean much? Do you disagree with the idea a more liberal court would support sex offenders more so than a more conservative court?
Then there's Scalia who is politically conservative and takes an extremely literal approach to the law which is largely seen as being conservative but at the same his approach produces some surprisingly liberal sounding results. His track record on 4th amendment issues is very pro defendant and anti-government. This only makes real sense once you realize the political ideology is separate and distinct from the legal ideology.
Pure hypothetical - If there was ever going to be a case challenging the registry because the mandated compliancy checks had grown to include warrantless searches then Scalia would likely be a "liberal" vote and Sotomayor a "conservative" vote based on their past histories.
In this term there have been many odd results that don't follow the lines either. Thomas sided with the "liberals" over Confederate license plates. Scalia called Alito to the carpet because he felt Alito weakened a defendant's right to confront their accusers and three liberal justices claimed the majority went too far in the direction of free speech!
This is why I say it's short sighted to focus on liberal vs conservative because when it comes to anything dealing with registered citizens it won't always be decided along political lines.