Showing posts with label ex post facto. Show all posts
Showing posts with label ex post facto. Show all posts

Thursday, January 22, 2009

Recreating Segregation

"We hold these truths to be self-evident..."

Self Evident: evident in itself without proof or demonstration; axiomatic

"...that all men are created equal..."

All men: regardless of origin, faith, political alignment, age, race, sex, sexual preference, and even regardless of past crimes.

"...that they are endowed by their Creator with certain unalienable Rights..."

God (I'm sorry if you don't believe in Him, but I do) gave us these rights, not man, nor a government created by man.

Unalienable: not to be separated, given away, or taken away; inalienable

"...that among these are Life, Liberty and the pursuit of Happiness."

Life and Happiness are somewhat obvious, so I won't take the time to spell them out. But Liberty on the other hand, now that is a subject that few people truly understand. If you care to read about some of the ideas behind Liberty, read this, and this.

"That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..."

"Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security."

Despotism:

1. the rule of a despot; the exercise of absolute authority.
2. absolute power or control; tyranny.
3. an absolute or autocratic government.
4. a country ruled by a despot.

When a government, under the guise of protecting it's citizens, actively removes and abolishes the rights of others, it creates a scenario similar to that of when the pilgrims left England. That little shift in peoples perception of government led to the creation of the United States of America. The quotes from above are taken directly from the text of the Declaration of Independence.

In today's society, we are still recovering from the Civil Rights movements, Woman's Rights movement, and more recently, Gay and Lesbian Rights movements. What people forget, or sometimes were not aware of, is that when the government loses control over a previously subdued and segregated entity, they go and find another one to pick on.

Having a common enemy gives the government purpose. It helps the general public feel justified in giving the government it's money. Without a common enemy, the people would cease to bend to the wishes of the government.

The latest common enemy is criminals. And much more specifically, sex offenders. (I would like to clarify that I am not supporting the behavior of any sex offender, or the abolition of the sex offender laws by any means) Sex offenders have become the latest and greatest common enemy the government has seen.

Sex Offender legislation is reaching a fervor the likes of which I doubt this country has ever seen. Every single legislative season is crammed with S.O. bills. Bills that restrict how far an offender can live from another offender, or bills that put large bold type on a S.O.'s drivers license, or legislative bills that uniformly categorize and offender regardless of when it happened or the details, and lets not forget about legislative bills that speak of offenders getting their rights back and allowing them to become contributing members of society, except for S.O.'s.

Everyone loves to hate sex offenders. But, they are still human. In spite of what the government tries to preach about them being sub-human and worthless. Sex offenders have Civil Rights too. They were created equal, and they also have the same unalienable rights as those that never committed a crime.

Unfortunately, sex offenders are considered to be so sub-human, that even after they have served their time in jail, completed their treatment, and payed their debt to society, they continuously get shoved farther and farther down the ladder of society.

So far as to almost rival that of the slaves back in the 1800's. How could I possible say that you ask? Let me explain.

"Slavery", as defined by the Slavery Convention of 1926, is (1)the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and "slave" means a person in such condition or status, (2) the slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves.

The government uses the "right of ownership" (via the DOC) to tell an offender where he can live, with whom he can live, how close he can live to another offender, how close that offender can live to a daycare, nursing home, park, school, bus stop, etc.

And good ol' Uncle Sam uses that "ownership" to come up with new ways to further suppress sex offenders every year.

Sex Offenders are being segregated out of society, for life! And all under the guise of "Regulatory". But, Liberty being an unalienable right, creates a Constitutionality issue with Uncle Sam's ideas of late.

I believe it was the thirteenth amendment that abolished slavery. And, I believe that there is a law about segregation as well.

In the thirteenth amendment, it talks about "except as a punishment for crime whereof the party shall have been duly convicted". When a criminal is "convicted", there is a sentence attached. If you continuously add to that sentence, you are going outside of the courts to attach punishment for a crime that is already ruled on. That creates another issue that we'll have to discuss at another time.

Here is a quote from a man I've quoted many times before:

"The right of voting for representatives is the primary right by which other rights are protected. To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case.
- Thomas Paine.
"

Criminals lose their right to vote, and according to law, they get it back when their time is served. Except for Sex Offenders.

When will this country learn that segregation will only lead to hardship? Not only for the person being segregated, but also by the very government itself when it has to fight it out in court at a later time.

Segregation will ultimately lead to the destruction of this country as we know it. The very methods that help to create these laws will be used to separate and compartmentalize the very citizens that it's supposed to protect.

Few people realise that 93% of all sex offenders were known (either relatives, or close friend of the family) to the victim.

What if that was your son, your daughter, your wife, or your husband? Would you be able to watch them get treated like that? Would you feel that the system was just then?

Or would you come back and reread this post looking for ideas to fight it?

Monday, September 8, 2008

The Bill of Attainder Argument

I wrote this in late July. For some reason I forgot to post it. So here you go...


July 30th, 2008
To Whom It May Concern:

I write this letter with the intent of bringing to light some constitutional issues that have arisen in our country in the last decade. Congress has begun the eroding of our rights, one at a time. They are hoping to establish a precedence of the people relying on the government for protection of all rights. This gives an air of an implied or awarded rights and not an inalienable right. This is against the very nature of the constitution that we hold as the basis of all laws in this nation. This matter has come to a boiling point in the last 2-3 years. No longer are people sitting by and complaining. Now we are starting to see an emergence of advocates on many different issues. All of which are in regards to Civil and Human Rights.

In writing this letter, I hope to evoke some thought as to the erosion of Human Rights in this country, mostly, in the arena of criminals. That is where Congress is starting, most specifically, with Sex Offenders.

According to Federalist Papers #57:

“The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

This shows that Congress was meant to show wisdom and discernment in the making of new laws. They were also supposed to stay “virtuous” while still in office.

It goes on to say:

“I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.”

This shows that the Congress is not supposed to pass any law that is not applicable to them as well. And if they try to, how is it to be combated? Here is the response:

“If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America, a spirit which nourishes freedom, and in return is nourished by it.”

And with the tolerance shown by today’s society, here is the response to that as well:

“If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.”

We have shown that Congress is there to create laws for which we are all to live by. Originally, Congress helped in the creation of the Constitution. The Constitution was put in place to help govern the people. It was set up to give us the structure we needed, but also the freedoms that we would live by. It was signed by the Framers as a contract between the citizens and the government sworn to protect them. With the passage of laws in the last four decades, we have started to get away from the intent set forth by the Framers. The government was created as an entity of support and protection. Not a tyrannical establishment bent on seizing the rights of the free, and especially those that have sinned against the common good.

In the Contract Clause of this very Constitution, it states:

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.

Never has our Constitution “substantially impaired” our contractual relationship. Never has there been a “significant legitimate purpose” for “remedying” our Constitution. The Bill of Rights, yes; the Constitution, NO! The new “laws” have proven themselves to be unreasonable and inappropriate for their “intended purpose.” These laws are proving themselves to be more punitive in nature than the regulatory one that the States would have us believe it to be.

What is the difference between punitive and regulatory you may ask? I’ll answer your question.
But first, a little background on the two stages we will be talking about.

Regulatory Action

According to http://www.wikipedia.org/,

Civil law courts provide a forum for deciding disputes involving torts (such as accidents, negligence, and libel), contract disputes, the probate of wills, trusts, property disputes, administrative law, commercial law, and any other private matters that involve private parties and organizations including government departments. An action by an individual (or legal equivalent) against the attorney general is a civil matter, but when the state, being represented by the prosecutor for the attorney general, or some other agent for the state, takes action against an individual (or legal equivalent including a government department), this is public law, not civil law. In public law the objective is usually deterrence, and retribution. The victim, or people secondarily harmed by the wrong, do not get compensated, except with that vague notion called 'closure.'

So, as we see here, Civil Law is for disputes with contracts. Torts, contract disputes, probate of wills, trusts, property disputes, administrative law, commercial law, and private matters are all between two “people” and are set with no punishment (aka no punitive action).

Criminal Law on the other hand…

According to http://www.wikipedia.org/,

Criminal law is distinctive for the uniquely serious potential consequences of failure to abide by its rules. Every crime is composed of criminal elements. Capital punishment may be imposed in some jurisdictions for the most serious crimes. Physical or corporal punishment may be imposed such as whipping or caning, although these punishments are prohibited in much of the world. Individuals may be incarcerated in prison or jail in a variety of conditions depending on the jurisdiction. Confinement may be solitary. Length of incarceration may vary from a day to life. Government supervision may be imposed, including house arrest, and convicts may be required to conform to particularized guidelines as part of a parole or probation regimen. Fines also may be imposed, seizing money or property from a person convicted of a crime.

Five objectives are widely accepted for enforcement of the criminal law by punishments: retribution, deterrence, incapacitation, rehabilitation and restitution. Jurisdictions differ on the value to be placed on each.

Retribution - Criminals ought to suffer in some way. This is the most widely seen goal. Criminals have taken improper advantage, or inflicted unfair detriment, upon others and consequently, the criminal law will put criminals at some unpleasant disadvantage to "balance the scales." This belief has some connection with utilitarianism. People submit to the law to receive the right not to be murdered and if people contravene these laws, they surrender the rights granted to them by the law. Thus, one who murders may be murdered himself. A related theory includes the idea of "righting the balance."

Deterrence - Individual deterrence is aimed toward the specific offender. The aim is to impose a sufficient penalty to discourage the offender from criminal behavior. General deterrence aims at society at large. By imposing a penalty on those who commit offenses, other individuals are discouraged from committing those offenses.

Incapacitation - Designed simply to keep criminals away from society so that the public is protected from their misconduct. This is often achieved through prison sentences today. The death penalty or banishment have served the same purpose.

Rehabilitation - Aims at transforming an offender into a valuable member of society. Its primary goal is to prevent further offense by convincing the offender that their conduct was wrong.

Restitution - This is a victim-oriented theory of punishment. The goal is to repair, through state authority, any hurt inflicted on the victim by the offender. For example, one who embezzles will be required to repay the amount improperly acquired. Restitution is commonly combined with other main goals of criminal justice and is closely related to concepts in the civil law.

The word punishment is found many times in the Criminal Law. Punishment is not a Regulatory Action. It is punitive in nature.

So, back to the question at hand.

What is the difference between punitive and regulatory?

Regulatory is meant to do just that, regulate. There is no “punishment” associated with regulation. Regulations provide direction and information on how to do something. If a regulation has a “punishment” attached to it, it ceases to be regulatory and becomes punitive. Punitive is meant to punish and rehabilitate. Punitive does not show you how to do something, or even direct you. It is there for one purpose only. Punish.

If a punitive law is passed and it is meant to be retroactive, it falls under the Ex Post Facto Clause of the Constitution.

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.

The constitution has a strict policy on this. It says “No Bill of Attainder or ex post facto Law shall be passed.” In theory, this should stop any bill from being passed retroactively. Unfortunately, this is not what happens in the creation of today’s laws.

Another piece that these laws are inhibiting is Due Process of Law.

Due Process of Law has two parts to it, Substantive and Procedural.

Substantive Due Process:

Substantive Due Process is the inherent freedoms mentioned in the U.S. Constitution and the Bill of Rights. It also takes into consideration those secondary rights allotted by these same documents.

In the words of www.answers.com/due%20process the definition is as follows:

“Substantive due process concerns specific behaviors of individuals that, according to the Court, are generally beyond the reach of government power, such as the free exercise of religion or participation in private organizations that petition the government about public problems and issues. The government may not regulate these actions, not even by the use of the fairest legal procedures, because to do so would violate the most fundamental rights of individuals in a constitutional government, such as rights to liberty, property, and equality under the law. If government officials want to regulate these kinds of usually protected actions, they must demonstrate that they cannot achieve a legitimate public purpose by any other means.”

Some of these rights are:

· Freedom of Association
· Freedom to Participate
· Freedom of Movement
· Freedom of Privacy
· Freedom of Choice

This is just a partial list of the Rights we have that Substantive Due Process provides for.

Procedural Due Process:

Procedural Due Process is the process by which our rights are maintained. Precedence and procedures are the basis for this right.

According to www.answers.com/due%20process the definition is as follows:

“These rights of the accused are examples of procedural due process, and they are constitutional limits on the power of government designed to protect the rights and liberties of individuals.Procedural due process—the idea that government must follow fair and generally accepted legal procedures in its actions against individuals—has been traced to the great English charter of liberty, the Magna Carta (1215). By signing this document, King John of England agreed to “obey the law of the land.” This idea developed into the legal guarantee of procedural due process of law to protect people against arbitrary or lawless punishments or penalties imposed by the government.”

Some of these rights are:

· Freedom of Assembly
· Freedom to Vote
· Freedom to Travel
· Freedom from Search and Seizure
· Freedom of Property
· Freedom from Bodily Invasion

Basically, if Congress doesn’t follow “fair and generally accepted legal procedures,” then it is not following the law of Procedural Due Process.

This leads us to the issue of Civil Rights and how they are allotted.

In the Civil Rights Act of 1871, they were specific as to what would happen, or be allowed to happen, if Congress were to take one of our rights away.

“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.”

Later, the United Nations also came out with a Bill of Rights that the United States of America signed.

The document can be found at http://www.unhchr.ch/udhr/lang/eng.htm. But the basic gist of the document reads that no Nation shall usurp the Rights of its citizens as these are inalienable rights handed down by God.

Some of our inalienable rights can be found in the Constitution, and some in our own Bill of Rights.

One of the main inalienable rights is Liberty.

“Liberty is divided into four types: natural, personal, civil and political. The first two are inalienable; the latter two are government granted. Natural liberty is absolute freedom, limited only by the laws of nature. It is exercised upon one's private property or upon unclaimed property (anywhere else would be a trespass). Personal liberty is the right of locomotion, the freedom to travel upon public roads and waterways; limited only by the requirement to not infringe another's right to travel. Civil liberty is the permission from government to do that which would otherwise be a trespass, a tort or not allowed by law. A license to practice medicine is an example of a civil liberty (inflict injury without criminal liability). Political liberty is the permission to vote and hold office. In countries with socialist / communist governments that abolish private property rights, natural and personal liberty does not exist. Permission (license) is required for most activities and actions.”

Other inalienable rights have already been discussed in this letter.

To take these rights away, there has to be a great reason for doing so.

The problem lies not so much in surrendering your rights once you have broken the law, it’s the continued loss of these rights as well as new ones after the fact. This continual loss of rights is a punishment greater than that set aside for us in any plea bargain we may sign or have signed.
To punish someone like that, creates a punitive action. Any bill that is passed by Congress with the intent to punish, or has punishing capabilities is illegal. Congress’ right is to create laws, not enforce them. That is the job of the Judiciary Branch of the Government set forth in the very Constitution of these United States of America.

Some examples of Congress’ intent for punitive action:

Rep. Virginia Brown-Waite [R-FL]:
“That is what this bill is all about; it is going after those, as someone once described, pond-scum predators.”

Sen. Orrin Hatch [R-UT]:
“The bottom line here is that sex offenders have run rampant in this country and now Congress and the people are ready to respond with legislation that will curtail the ability of sex offenders to operate freely.”

Sen. Charles Grassley [R-IA]:
“Child sex offenders are the most heinous of all criminals. I can honestly tell you that I would just as soon lock up all the child molesters and child pornography makers and murderers in this country and throw away the key.”

Rep. James Sensenbrenner [R-WI]:
“…the bill increases criminal penalties to punish and deter those who prey on children.”
As well as this:

“The bill also increases criminal penalties to punish and deter those who prey on children…” (Stated in two different parts of his speech)

Here we have a bill that is Civil, yet creates and intent of punishment, which is Criminal.
Any time Congress creates a law that is meant to punish (either with intent by the legislators creating the law, or in fact with the wording of the law) it falls under the Bill of Attainder Clause found in the Constitution under Article 1, sections 9 and 10.

Bills of Attainder:

According to http://www.findlaw.com/

''Bills of attainder . . . are such special acts of the legislature, as inflict capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. If an act inflicts a milder degree of punishment than death, it is called a bill of pains and penalties. . . . In such cases, the legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence, or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.'' The phrase ''bill of attainder,'' as used in this clause and in clause 1 of Sec. 10, applies to bills of pains and penalties as well as to the traditional bills of attainder.

Basically, if Congress passes a law that has a punishment attached to it, and it singles out a person or “easily ascertainable group,” then it falls under a Bill of Attainder. This is providing that the punishment is handed out without the benefit of a Jury Trial.

Also, this comes to mind:

“They inflict punitive sanctions in disregard of judicial methods of proof designed to insure fairness in fact‐finding. The history of bills of attainder has also shown that their passage was often induced by popular passion or motivated by unproved suspicions.”

With Congress and the media continually misquoting recidivism rates for the sex offenders, it’s no wonder that these laws are flying through our Legislative system. One bill that I know of, from introduction to the Senate, to the passage in the House of Representatives, was a total of eight and a half months. This time included only 120 minutes of total discussion time collaboratively between the House and the Senate. It was brought under a suspension calendar which is only supposed to be used for the mundane things like the naming of post offices. It was never meant to be used for major controversial issues of the current day. Those need to be debated thoroughly to make sure that no rights are infringed upon. But in this case, that was purposefully pushed aside in an attempt to rush the bill to vote.

Specifically, we are talking about the Adam Walsh Act. This is a collection of popular issues with the focus being on sex offenders. The issue of sex offenders was used to piggyback the other topics. Then the bill was placed on suspension calendar which didn’t allow for amendments, or debate. Many times over, according to the Congressional Record, it was shown that the intent was to “punish” the “pond-scum predators.” Congress was intent on finding ways to “regulate” these offenders by giving them greater “punishments.” That’s a mix of Civil Law and Criminal Law. Also against the Law they are sworn to uphold.

On one hand, it’s a Bill that needs to be voiced. But, on the other hand, the way in which it was passed, the lack of Congressional Record to the final vote cast, or the submission of the passed bill to the President, screams of something foul.

There were Legislators for and against. We’ve heard from some that were for it a moment ago.

Now let’s hear from some that are against it.

Rep. Fortney Stark [D-CA]:
“Once again, this Congress is attempting to address very serious and complicated problems with a law that substitutes the talking points of "tough on crime" politicians for the wisdom of judges, prosecutors, treatment professionals and child advocates.”

That seems to say that Congress is trying to institute themselves as the Judge and Jury while pushing out those that are supposed to cover that arena.

Also from Rep. Stark:
“I cannot violate my Constitutional duty to protect our independent judiciary nor can I support extreme, dangerous policies, so I will vote against this bill.”

Rep. Barney Frank [D-MA]:
“…it is being dealt with in a manner in which no amendments are allowed, in which only 40 minutes total of debate are allowed. And it is a bill brought forward because the committee leadership didn't like what happened when the House actually voted on it in a democratic manner.”

Also from Rep. Frank:
“This is a shameful example of the degradation of the democratic process that has befallen this House. What happens is what has happened in the past: things get put in here that cannot be individually examined, they cannot be debated. Members will feel pressured to vote for the overall package. Members, and this is the goal, put a lot of things in here that are very important and very good, many of which I have voted for in the past, many of which I want to vote for. But Members have put in a few other things that are very controversial and do not allow this House to approach looking at things individually and saying an amendment here, yes or no. And then if Members do not buy the whole package, then you go after them.

The Republican majority has decided to legislate in the same manner in which you give a pill to a dog: you take something that the dog wants and you stick a couple of pills in it and you ram it down its throat. That is an inappropriate way for this democratic House to proceed.”

Here he is speaking of the underhanded tactics of some people in Congress to slyly pass this highly controversial bill. He speaks of a lack of following procedure in the House and how it shames said House.

Rep. Robert Scott [D-VA]:
“Now, with no more basis than we had before, just the name of the crime and the continuing political appeal of appearing tough on sex offenders, we are again greatly increasing penalties with more death penalties and increased mandatory minimums, including more mandatory minimums for teenagers having consensual sex.”

On one hand, he is referring to the ridiculousness of having consensual sex teenagers having to register. But, on the other hand, he shows the intent of the Congress to gain more votes by the passage of new Sex Offender Laws for the mere appearance of being “tough on predators.”

This effort to appear to be tough on predators has launched a barrage of laws that have created serious problems in our society. Many studies show that offenders without support networks, jobs, friends, family, significant others, and the basic human right of self esteem, are at an increasingly high risk to reoffend. When an offender has nothing to lose, he can become dangerous indeed. These new laws are creating that effect, whether intentional or not.

With Congress using the suspension calendar to review and vote on so sensitive a topic as sexual abuse, it flies in the face of tradition. Due Process of Law by procedure is a valuable tool in the assurance of rights for all. Are we not afforded the same courtesy when a new law is being written as well? Are we not allowed the right to have laws passed by tradition and precedence? The AWA was passed without that consideration. And on the Substantive side of things, it takes away several of our human rights set forth in the constitution. The law is applied to ALL sex offenders, regardless of when they were convicted. This falls under the Ex Post Facto Clause of the Constitution. The Supreme Court has ruled several times that according to Smith v. Doe (Alaska ruling) that the Registry is “regulatory” and not “punitive.” Well, just recently, Alaska ruled in Doe v. Alaska, that the registry when used to apply to someone convicted prior to the passage of the law is in fact a punitive action. Therefore, the AWA is punitive for anyone convicted prior to its passage and target effect date. The AWA also falls under the Bill of Attainder clause found in the Bill of Rights as well as the Constitution. This law was passed with the intent and the effect of punishing hundreds of thousands of people in an “easily identifiable class” and their families as well. This can also be seen as a cruel and unusual punishment as well as falling under the Double Jeopardy Clause for punishing those offenders after they served their sentence and time.

Congress has the moral obligation to protect ALL of the citizens. These laws need to be written to help the offenders get rehabilitated, not solely to punishing them at every turn. Congress has gotten away from its intended purpose of creating legislation for the greater good of all. They are bent on finding ways of using hot topics to further their careers and ride the backs of those people who have made poor choices in life. They ceased to be a party of the people, by the people, and for the people. They are now a party of greedy people looking to cement their names in history.

Lately, there has been a strong call to restore the original intent of the Constitution and the ideas for which it stands for. This letter is intended to help facilitate that action. Repeal the AWA and send the message that people of these United States of America are tired of being deceived and lied to for political gain. The people are tired of oppression, and they are tired of corruption. Now is the time to stand and fight for our God given rights as human beings. If we continue to sit back and allow things to happen, no longer will be allowed our basic human rights. No longer will this be a Free Nation, but one of Dictatorship and Tyranny.

Now is the time to cement your name in history by creating a just and fair law that will stand the test of time. Create a law that works towards the rehabilitation and reunification of sex offenders into our society as productive members. Create groups that will offer support for offenders in need of counsel. Show that this country can be not only just, but compassionate as well. We need fairness and equality more than ever in our Legislation. Use the true facts, not just the ones made up to create a fear factor among the public. Show them the true colors that make up America. Show them the greatness that lies within. Show them, before it’s gone forever.

Thank you for your time.



A List of Resources:

The Federalist Papers:
· http://www.foundingfathers.info/federalistpapers/fedindex.htm


Bill of Attainder:
· http://en.wikipedia.org/wiki/Bill_of_attainder
· http://www.answers.com/topic/bill-of-attainder
· http://caselaw.lp.findlaw.com/data/constitution/article01/47.html
· http://frontpage.brightok.net/~sempai/billofattainder
· http://legal-dictionary.thefreedictionary.com/Sanctions
· http://www.independent.org/pdf/tir/tir_06_4_manweller.pdf

Congressional Record:
· http://www.govtrack.us/congress/record.xpd?id=109-h20060308-32&bill=h109-4472#sMonofilemx003Ammx002Fmmx002Fmmx002Fmhomemx002Fmgovtrackmx002Fmdatamx002Fmusmx002Fm109mx002Fmcrmx002Fmh20060308-32.xmlElementm48m0m0m
· http://www.govtrack.us/congress/record.xpd?id=109-s20060719-13&bill=h109-4472
· http://www.govtrack.us/congress/record.xpd?id=109-s20060720-7&bill=h109-4472
· http://www.govtrack.us/congress/record.xpd?id=109-h20060725-33&bill=h109-4472
· http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=71&invol=277

Due Process:
· http://www.usconstitution.net/consttop_duep.html
· http://en.wikipedia.org/wiki/Due_process
· http://www.answers.com/due%20process
· http://members.aol.com/abtrbng/sdp.htm


A list of further resources is available upon request.

Tuesday, July 8, 2008

Sex Offender Regulations: Punitive v. Regulatory

Sex Offender Regulations
Punitive v. Regulatory

Evidence of Laws since Smith v. Doe
July 7, 2008



To whom it may concern:


This letter is sent in the effort of shedding some light on the recent laws that have been passed in the effort of protecting our Nations children from Sex Offenders. In Smith v. Doe, it was put forth by the Supreme Court that the Sex Offender Registry was considered to be a “Regulatory action and not a punitive consequence.” But, in the years since that verdict, several states have gone so far as to pass new laws that restrict our Nations Sex Offenders to ever farther reaching boundaries. Lately, many of these have come under fire for being “Unconstitutional.”

Here are some examples of Sex Offender Laws being challenged across this Country:

“Utahn can ignore state sex-offender registry”
http://www.sltrib.com/news/ci_9761706

“Federal judge halts sex offender law”
http://www.lvrj.com/news/22752939.html

“Sex offender law goes too far, court rules”
http://www.indystar.com/apps/pbcs.dll/article?AID=/20080625/NEWS02/806250426

“Dover defends sex offender ordinance in NHCLU challenge”
http://www.unionleader.com/article.aspx?headline=Dover+defends+sex+offender+ordinance+in+NHCLU+challenge&articleId=56e6f675-a6f0-4d7a-8200-0983ab2e4d1d

“Deltona takes steps to relax residency rule for sex offenders”
http://www.news-journalonline.com/NewsJournalOnline/News/WestVolusia/wvlHEAD03WEST061708.htm


Apparently there is a lot of consensus these days that the Laws being passed by our Legislators across the Country are considered to be Unconstitutional.

If one believes them to be Unconstitutional, then that would lead one to believe that they were written to do more than Regulate. Might one then consider that they were in fact written to be Punitive? To the point that in Georgia, Sex Offenders are banished to ONE county out of 129!! How is that Regulatory? They even tell the Sex Offenders that they can’t use “homeless” as an address. They say that if you can’t afford a place to live, then you are in violation of the Registry and you will go to jail. This is being argued in court as you read this.


In Florida, they found that they needed to relax the city Residency Restrictions of 2500 ft (the States RR is only 1000 ft) to now exclude “bus stops.”


New Hampshire is fighting a battle right now. The NCHLU has determined that the RR’s in New Hampshire actually are against the States own Constitution.


Here are a few examples of Legislators who are bent on punishing Offenders beyond their terms:

“La. could allow confinement of sex offenders beyond prison sentences”
http://www.wwltv.com/topstories/stories/wwl070708cbsexoff.2ffefc40.html

“Jindal runs into voter backlash”
http://www.telegraphindia.com/1080630/jsp/frontpage/story_9482170.jsp

“Sex offender lawsuit”
http://abclocal.go.com/wtvg/story?section=news/local&id=6240568


In Louisiana, the Governor has come under fire for attempting to circumvent the Supreme Court. He even goes so far as to call their actions “atrocious.” He has vowed to pass as many laws as it takes to provide an equivalent Death Penalty in the hopes of getting around the Supreme Courts Decision.

In Ohio, the law has become so strong that a clerk at a Hustler store is suing the state. She is afraid that she might be forced to Register as a Sex Offender because she sells pornographic materials (which is seen as “obscene material”). Anyone possessing or distributing “obscene material” could be forced to register as a Sex Offender, even if they have no victim.

More and more, it is becoming apparent that the Legislators are attempting to pass laws to show the public that they are “tough on Sex Offenders” and that they want our votes. They create and try to pass laws (sometimes behind closed doors) to further box in the Sex Offender. New laws are being passed in Missouri that would keep Sex Offenders (even those that haven’t reoffended in decades) from participating in Social Networks (i.e. Facebook, MySpace, etc.). So, now they can’t live within 2500 ft of parks, schools, churches, daycares (Florida); but they also can’t go online to try to form socially acceptable relationships (for those that don’t target children). Tennessee now requires them to have a “special license” stating that they are Sex Offenders.

So my question is, where does the Regulatory action end and the Punitive Damages begin? With all of these laws, it become increasingly hard for Sex Offenders to find jobs, keep friends and family, and to acquire adequate housing. No longer does our Nations Legislators work to regulate. They now work with the intent of helping the Nation “feel” like it’s being protected. As in the case of Georgia, they will just send any law that gets knocked down back to have the phrase that got it rejected reworked. This shows a lack of concern for the “reason” that it was knocked down in the first place.

We appreciate your attention to this matter. We hope that you will look into this with an intent to see the true nature of the laws. Punitive!

Wednesday, May 21, 2008

Residency Restrictions becoming Unconstitutional.

There are alot of States that are starting to realise that it is Unconstitutional to restrict the area in which a Registered Sex Offender can live after his sentense period is up. Someone subject to the laws after they are written, will on the otherhand have to abide by them. But the ones that live there now, get grandfathered in. But, if they move, they now have to follow the laws.

I will find more cases where this is displayed.

I will also look for a way to get the Federal Government to see this logic and make it a Federal Law.

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.


Sincerely-









Resources:
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