Tuesday, May 20, 2008

A Letter.

To Whom It May Concern:

The topic of this letter is to ask for the help of the ACLU. My intention in writing this letter is to try and find a way to change some laws that are currently on the books. Both on the State level, as well as Federally.

There are several major parts to my idea/argument.
· The Civil Rights Act of 1871
· The Contract Clause after 1934
· The Fourteenth Amendment
· Ex Post Facto Law

There is also one minor part of my idea/argument.
· Punitive Damages

These laws are set in place to create a way for someone to fight a law/ regulation that they feel is unjust. By utilizing these laws, we can get the laws that are currently on the books changed into something more uniformly just.

I’m talking about Sex Offender Registration and Residency Laws.

My intent is not to ask for the laws to be abolished, but more to be smoothed out. To create a way that will more seamlessly mesh with the ideals of the Constitution of the United States of America. By this, I mean that the wording, the structure, and tone of the Laws be changed to create a system that will more equally represent the position of all involved.

In the next few pages, I will show you what it is that I am getting at. I hope that my meanderings make some sense. Also that we can work together to forge ahead in the pursuit of Justice.

The Civil Rights Act of 1871 1

This law was created to “allow individuals to sue state actors in State or Federal Courts for civil rights violations.” Section 1983 allows them to gain the jurisdiction of the Federal Court.

The document reads:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In the case of Monroe v. Pape: The Supreme Court decided that there are three purposes that underlay the statute: 1) 'to override certain kinds of state laws'; 2) to provide 'a remedy where state law was inadequate'; and 3) to provide 'a federal remedy where the state remedy, though adequate in theory, was not available in practice.

Section 1983 of the Civil Rights Act provides a way individuals can sue to redress violations of federally protected rights, like the First Amendment, Fourteenth Amendment and Equal Protection Clause of the Constitution. Section 1983 can be used to enforce rights based on the federal constitution and federal statutes.

The point that I’m attempting to make with the Civil Rights Act, is that as Sex Offenders, we are subjected to “regulatory” statutes that require us to not live in certain areas or to be in certain areas. Although I truly and fully understand why these laws were put in place, unfortunately, they strip us of our rights due to us by the Constitution. Again I state that these laws were intended well, but need to be rewritten. I will submit my proposal to you at the end of this letter.

The Contract Clause After 1934 2

A little history:
In Home Building & Loan Association v. Blaisdell 290 U.S. 398 (1934), the Supreme Court upheld a Minnesota law that temporarily restricted the ability of mortgage holders to foreclose. The law was enacted to prevent mass foreclosures during a time of economic hardship. The kind of contract modification performed by the law in question was exactly the kind that the Framers intended to prohibit. However, Chief Justice Marshall famously said in McCulloch v. Maryland, "It is a constitution we are expounding." By this, he likely meant that the constitution must adapt to the times. This statement is also interpreted to mean that the "framers' intent is not controlling." The Supreme Court held that this law was a valid exercise of the state's Police Power. It found that the temporary nature of the contract modification and the emergency of the situation justified the law.

Further cases have refined this holding, differentiating between governmental interference with private contracts and interference with contracts entered into by the government. Succinctly, there is more scrutiny when the government modifies a contract to alter its own obligations. (See United States Trust Co. v. New Jersey, 431 U.S. 1 (1977).) [1]

Modification of Private Contracts After 1934
The Supreme Court laid out the test for whether a law violates the Contract Clause. The test is a three part test. First, the state regulation must substantially impair a contractual relationship. Second, the State "must have a significant and legitimate purpose behind the regulation, such as the remedying of a broad and general social or economic problem." 459 U.S. at 411-13 Third, the law must be reasonable and appropriate for its intended purpose. This test is similar to rational basis review.

Modification of Government Contracts After 1934
In United States Trust Co. v. New Jersey, the Supreme Court held that a higher level of scrutiny was needed for situations where laws modified the government's own contractual obligations.

Application of the Contract Clause Barbri Bar Review (2004)
The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights. The Contract Clause applies only to state legislation, not court decisions.

Private Contracts

The Contracts Clause prevents only substantial impairments of contract, i.e. destruction or loss of most or all of a party's rights under an existing contract. However, not all substantial impairments violate the Contracts Clause.To determine whether state legislation is valid under the Contracts Clause, the following three part test applies:

(i) Does the state legislation substantially impair a party's rights under an existing contract? If it does not, the state legislation is valid under the Contracts Clause. If it does, such impairment will be valid only if it:

(ii) Serves an important and legitimate public interest; and

(iii) Is a reasonable and narrowly tailored means of promoting that public interest.

The reason that I gave you that information, was to highlight the areas that I felt proved my argument. My argument states that during a court hearing, the defendant and the State’s Prosecuting Attorney, enter into a “Contract” when the defendant signs a plea bargain set forth by the prosecuting attorney. The Judge ratifies this contract when he follows the recommendation of the prosecuting attorney. Therefore, when new Legislation is enacted that effectively breaks that contract, the State is then in violation of said contract. Such as Residency Restrictions.
Here is some information about the Fourteenth Amendment that shows the correlation between the Contract Clause and the Civil Rights Act.

The Fourteenth Amendment 3

The amendment requires states to provide equal protection under the law to all persons (not only to citizens) within their jurisdictions.

A legal person 4, also called juridical person or juristic person, is a legal entity through which the law allows a group of natural persons to act as if they were a single composite individual for certain purposes, or in some jurisdictions, for a single person to have a separate legal personality other than their own. This legal fiction does not mean these entities are human beings, but rather means that the law allows them to act as persons for certain limited purposes—most commonly lawsuits, property ownership, and contracts. This concept is separate from and should not be confused with limited liability or the joint stock principle. Also note that basic rights (like the rights to free speech and due process of law) do not necessarily follow from legal personhood. A legal person is sometimes called an artificial person or legal entity (although the latter is sometimes understood to include natural persons as well).

So, on one hand we have the Civil ramifications that come of unjust Legislation. On the other hand, we have the Federal ramifications of said Legislation that falls under the Ex Post Facto Law due to the retroactivity of said Legislation. Here is what I mean.

Ex post facto law 5

An ex post facto law or retroactive law, is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. In reference to criminal law, it may criminalize actions that were legal when committed; or it may aggravate a crime by bringing it into a more severe category than it was in at the time it was committed; or it may change or increase the punishment prescribed for a crime, such as by adding new penalties or extending terms; or it may alter the rules of evidence in order to make conviction for a crime more likely than it would have been at the time of the action for which a defendant is prosecuted. Conversely, a form of ex post facto law commonly known as an amnesty law may decriminalize certain acts or alleviate possible punishments (for example by replacing the death sentence with life-long imprisonment) retroactively.

A law may have an ex post facto effect without being technically ex post facto. For example, when a law repeals a previous law, the repealed legislation no longer applies to the situations it once did, even if such situations arose before the law was repealed. The principle of prohibiting the continued application of these kinds of laws is also known as Nullum crimen, nulla poena sine praevia lege poenali.

Generally speaking, ex post facto laws are seen as a violation of the rule of law as it applies in a free and democratic society. Most common law jurisdictions do not permit retroactive legislation, though some have suggested that judge-made law is retroactive as a new precedent applies to events that occurred prior to the judicial decision. In some nations that follow the Westminster system of government, such as the United Kingdom, ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a written constitution, ex post facto legislation may be prohibited.

Ex post facto is the uncomplimentary characterization of law and legislation that applies retroactively (i.e. "from a thing done afterward").

United States

In the United States, ex post facto laws are prohibited in federal law by Article I, section 9 of the U.S. Constitution and in state law by section 10. Over the years, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in the Calder v. Bull case of 1798, in which Justice Chase established four categories of unconstitutional ex post facto laws. The case dealt with Article I, section 10, since it dealt with a Connecticut state law.

However, not all laws with ex post facto effects have been found to be unconstitutional. One current U.S. law that has an ex post facto effect is the Adam Walsh Child Protection and Safety Act of 2006. This law, which imposes new registration requirements on convicted sex offenders, gives the U.S. Attorney General the authority to apply the law retroactively. The U.S. Supreme Court ruled in Smith v. Doe (2003) that forcing sex offenders to register their whereabouts at regular intervals and the posting of personal information about them on the Internet does not violate the constitutional prohibition against ex post facto laws, because compulsory registration of offenders who completed their sentences before new laws requiring compliance went into effect does not constitute a punishment.

Another example is the so-called Lautenburg law where firearms prohibitions were imposed on those convicted of misdemeanor domestic violence offenses and subjects of restraining orders (which do not require a criminal conviction). These individuals can now be sentenced to up to 10 years in a federal prison for possession of a firearm, regardless of whether or not the weapon was legally possessed at the time the law was passed. Among those that it is claimed the law has affected is a father who was convicted of a misdemeanor of child abuse despite claims that he had only spanked his child, since anyone convicted of child abuse now faces a lifetime firearms prohibition. The law has been legally upheld because it is considered regulatory, not punitive - it is a status offense.

The intent of this part is to show you how Residency Laws (for some offenders, this came into effect long after their probation/terms of the contract were met) have Retroactively punished offenders.

In this section, we will address the Supreme Courts ruling in Smith v. Doe.

Smith v. Doe 6

Smith v. Doe, 538 U.S. 84 (2003), was a court case in the United States which questioned the constitutionality of the Alaska Sex Offender Registration Act's retroactive requirements. Under the Act, any sex offender must register with the Department of Corrections or local law enforcement within one business day of entering the state. This information is forwarded to the Department of Public Safety, which maintains a public database. Fingerprints, social security number, anticipated change of address, and medical treatment after the offense are kept confidential. The offender's name, aliases, address, photograph, physical description, driver's license number, motor vehicle identification numbers, place of employment, date of birth, crime, date and place of conviction, and length and conditions of sentence are part of the public record, maintained on the Internet.

Smith v. Doe questioned the constitutionality of the Act's retroactive requirements. John Doe I and II were convicted of aggravated assault before the Act's passage and filed suit claiming the Act was punitive and violated the Ex Post Facto Clause of Article I of the U.S. Constitution. The District court ruled against the Does, saying that the Act was nonpunitive. The Appeals Court sided with the Does that the Act was in fact punitive and violates Ex Post Facto.

Supreme Court's Ruling

Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause.

The question is if the intention was to impose a punishment or "civil proceedings". If the intention was to punish, that ends the inquiry. If the intention was to enact a regulatory scheme that is civil and nonpunitive, the Court must examine whether the scheme is so punitive as to negate the State's intention to deem it civil. Because the Court ordinarily defers to the legislature's stated intent, only the clearest proof will suffice to override that intent and transform what has been denominated a civil remedy into a criminal penalty. The Court decided 6-3 that legislature's intent was to create a civil, nonpunitive program to protect the public and that the resulting dissemination of the registration information was not significant enough to declare as debilitating. The dissenting justices held the Act could only cover persons convicted after passage without violating the Ex Post Facto Clause.

My rebuttal to the Supreme Court’s decision:

Punitive damages 7 are damages not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.

So, by definition, punitive damages are set in place to deter and reform. The Residency Laws are punitive. To an extent, so is the Registration process. By pushing Sex Offenders out of their homes, you create a punitive law. Punitive Laws fall under the Ex Post Facto rulings. These punitive laws are effectively “segregating” us from the community as a whole. We Sex Offenders may not be described in the laws against Segregation, but we are “persons” under the jurisdiction of each individual state and the federal government as well. Being described as “persons” entitles us to “equal protection under the law.”

My Proposal:

I propose that the Residency Laws be marked as unconstitutional. They violated the contracts of those that were finished with/ started our contracts with the State prior to the Law being passed. That through the Registration process, we were stripped of our rights for equal protection under the law. And by passing retroactive and punitive laws, that Ex Post Facto be cited. This of course would be for those that were sentenced prior to the passing of said laws.

What I would like to see happen, is that the Registration process be reformed to allow the Sex Offender that can adequately display completion of treatment, be allowed to unregister. Those Sex Offenders that reoffend should be labeled as Sexual Predator. Sexual Predators should be subject to the current Residency Restrictions and public Online Registries. Persons in treatment, and those that have successfully completed treatment, should be allowed to get off of the public registry and be moved to a private registry. This registry would be for the law enforcement agencies to use in monitoring those still on the registry. Sex Offenders that meet certain requirements should be allowed to be removed from the registry (due process of law). As an offender shows progress and effort, they should be able to move from one registry to the next. Or, a lack of compliance to treatment would constitute a high risk behavior that might land them on the public registry. The general idea being that a person can achieve due process of law by following treatment, guidance from councilors, thus getting off of the registry all together. A person moves up or down the registries of their own accord.

I appreciate your time and diligence in reading my remarks. I hope that I have made some sense and that you will find a way to help me get these issues resolved.


1. http://en.wikipedia.org/wiki/42_U.S.C._%C2%A7_1983, http://www.familyrightsassociation.com/info/law/title42sec1983/
2. http://en.wikipedia.org/wiki/Contract_Clause
3. http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
4. http://en.wikipedia.org/wiki/Juristic_person
5. http://en.wikipedia.org/wiki/Ex_post_facto
6. http://en.wikipedia.org/wiki/Smith_v._Doe
7. http://en.wikipedia.org/wiki/Punative

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