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A 10-year-old boy accused of forcing a 7-year-old to perform oral sex while riding on a Howell Public Schools' bus last year was sentenced to two years probation this afternoon and ordered to undergo counseling and random drug testing in Livingston Juvenile Court.
The boy pleaded no contest to a single charge of gross indecency between males in an agreement with prosecutors last month that dropped a first- and second-degree criminal sexual conduct charges just days before the case was to go to trial. He would have been ordered to register as a state sex offender until age 30, if found guilty.
The victims' mother and boyfriend spoke at the court hearing, telling how the assault by the child and another pre-teen has affected their family.
"He told my son if he ever told he'd kill him," the mother said.
Her son, now 8, is undergoing treatment for depression and anxiety, she said. He's constantly frightened, reluctant to share his feelings, and has nightmares, she said.
The mother's boyfriend called the sentence "a smack on the wrist."
The other boy, an 11-year-old, was sentenced to two years probation and counseling in a similar plea agreement in March.
You can reach Valerie Olander at (517) 552 5503 or firstname.lastname@example.org.
Friday, May 23, 2008
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The jury had the day off. The judge—and possibly a few witnesses—weren't so lucky.
While court was adjourned Friday, Cook County Judge Vincent Gaughan spent the day hearing arguments from both sides after he was informed that R. Kelly's camp wants charges brought against some of the prosecution's witnesses.
The R&B singer's lawyers are claiming that, if the people who testified they possessed a copy of the sex tape—which Kelly is accused of making with an underage girl years ago—did not ever alert authorities, then they are guilty of child pornography. (Despite the fact that the defense has argued that the tape may have been doctored and that the illicit intimate encounter never occurred at all.)
Prosecutor Shauna Boliker didn't reveal which witnesses the defense is looking at and she and Kelly's team met with Gaughan in closed chambers, but the Chicago Sun-Times questions whether Kelly's team is planning to point the finger at a woman who's planning to testify she had a threesome with Kelly and the girl said to be on the tape.
The defense has also requested a subpoena for Sun-Times reporter Jim DeRogatis, who first received the tape from an anonymous source and turned it over to police in 2002. Kelly's people are suggesting the journalist may have committed a crime by making and keeping a copy of the lewd video.
Meanwhile, adding to the four people who have already positively identified the alleged victim, another relative of the girl's (and a former Kelly protégé), Stephanie "Sparkle" Edwards, testified Thursday she was the one who introduced her young relative to Kelly.
An attorney arranged for her to see the tape in 2001, she said.
Edwards also warded off the defense's accusation that she was testifying against the Grammy winner because she was bitter about the end of their business relationship after he produced her eponymous debut album in 1998.
"He was my homeboy. We were still cool," Edwards said.
Testimony is scheduled to resume Tuesday morning.
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After two cases this week in which children fabricated reports of crimes, the Boston Police say they're working with the city schools to develop an educational awareness program highlighting the serious consequences of such actions.
- What consequences? That an innocent man/women gets their lives ruined for a long time over hearsay?
Police also urged parents to have a conversation with their children about the two incidents.
"The department puts a tremendous amount of resources and energy into creating a safe environment for our local youth. Obviously, it is frustrating for us when these resources are squandered," Police Commissioner Ed Davis said in a statement.
On Monday, a 12-year-old boy reported that someone had tried to abduct him. Police said they later learned that he had made up the story.
On Thursday, police searched frantically for a 14-year-old girl who had sent her mother text messages that she was in trouble and being held against her will. Police found the girl and determined that she, too, had fabricated her story.
Police said they would work with the families of the children to get them any social services they need. They also said they would seek to get the children involved in community service.
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A 28-year-old Maywood police officer was arrested Wednesday at his Riverside County home and charged with sexually assaulting three women while on duty, a news release from the Los Angeles County district attorney's office stated.
Ryan Allen West is charged with 12 felonies, including rape, assault by a public officer, sexual assault and burglary, the release stated.
The incidents happened between September 2006 and May 2007 while West was in uniform, the release stated.
One of the women went to a hospital last year and reported an officer raped her, the release stated. Authorities investigated the incident and found two more victims. West was listed as a K-9 officer until March.
The arraignment date has not been set. If convicted on all counts, West faces up to 24 years, six months in prison, the release stated.
Attempts to reach West were not successful.
Spokeswoman Shiara M. Davila said she is not allowed by law to reveal the city of West's residence because he is a peace officer.
Reach Jessica Logan at 951-368-9466 or jlogan@PE.com.
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And yet another short article about a cop busted on sex charges.
A worker at the state prison at Dallas was arrested Thursday and accused of having a sexual relationship with an inmate.
According to court papers, Ann Carroll of Duryea was a library assistant at the prison when she began the relationship. She admitted having sex with the inmate in the prison library on a number of occasions.
The relationship was discovered when the inmate was calling Carroll's cell phone which is listed on employee's phone list.
Carroll is free on bail.
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Short as usual!
A Hempstead County reserve deputy was arrested on a charge of rape.
He's identified as 47-year-old Jeffery Mayle.
A Hempstead County woman told investigators she and her boyfriend had a fight, and that she got out of his car and started walking home.
She says she was picked up by Deputy Mayle while walking along a stretch of Highway 355, near the Saratoga Schools.
She told investigators that Mayle took her to Millwood Lake and asked her to perform a sexual act. The woman says she refused, but later complied.
Mayle has been fired from his job.
We're told he'd been with the force since August of last year.
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See the comments from a person who lives under the Julia Tuttle bridge, where the 7th person was arrested.
MIAMI -- Miami-Dade Police made seven arrests in an overnight sweep Wednesday aimed at sex offenders and sexual predators.
Officers from the Miami-Dade Police Department's Sexual Crimes Bureau, along with the Florida Dept. of Law Enforcement, U.S. Marshalls and Florida Department of Corrections performed unannounced spot checks at the homes of 73 registered sex offenders.
In several cases, they were not living at the addresses they'd provided to authorities, something that is required by Florida law.
Officers made six arrests for violating the registration requirements, or for failure to have their status as sexual offenders noted on their driver's license.
A seventh person was arrested on a probation violation.
Officers who took part in the late-night sweep say the spot checks are essential to ensure that sexual offenders are monitored and not allowed to disappear into society.
From a source under the bridge:
Last night a total of (12) officers went to conduct a sweep at the Julia Tuttle causeway. The officers were a combination of both the department of corrections and Miami-Dade police. They were searching every residents belongings high and low, from personal I.D. to see if there were no outstanding warrants on any of the residents. Also to make sure the statutes were on their I.D.'s
One arrest was made though.....One of the residents sleeps inside of a tent that belonged to another offender whose probation had been violated a while back, and was not being used by anyone at the time. Now get this!!!! Because they found medication belonging to the offender that is currently in jail inside the tent. Along with all the other offenders belongings.....this resident gets charged with "5 counts" of having medication without a prescription....therefore being "violated".
The guy works the greater part of the day and just sleeps in the tent for a few hours until he has to get up and live the same routine again day by day....Yet for just holding on to the offenders belongings until his probation is reinstated. He was arrested and when it was explained to the officers......well as always...It fell on deaf ears.
Maslow's hierarchy of needs is a theory in psychology that Abraham Maslow proposed in his 1943 paper A Theory of Human Motivation, which he subsequently extended to include his observations of humans' innate curiosity.Maslow studied exemplary people such as Albert Einstein, Jane Addams, Eleanor Roosevelt, and Frederick Douglass rather than mentally ill or neurotic people, writing that "the study of crippled, stunted, immature, and unhealthy specimens can yield only a cripple psychology and a cripple philosophy." Maslow also studied the healthiest one percent of the college student population. In his book, The Farther Reaches of Human Nature, Maslow writes, "By ordinary standards of laboratory research...this simply was not research at all. My generalizations grew out of my selection of certain kinds of people. Obviously, other judges are needed."
Maslow's hierarchy of needs is often depicted as a pyramid consisting of five levels: the four lower levels are grouped together as being associated with Physiological needs, while the top level is termed growth needs associated with psychological needs. Deficiency needs must be met first. Once these are met, seeking to satisfy growth needs drives personal growth. The higher needs in this hierarchy only come into focus when the lower needs in the pyramid are satisfied. Once an individual has moved upwards to the next level, needs in the lower level will no longer be prioritized. If a lower set of needs is no longer being met, the individual will temporarily re-prioritize those needs by focusing attention on the unfulfilled needs, but will not permanently regress to the lower level . For instance, a businessman at the esteem level who is diagnosed with cancer will spend a great deal of time concentrating on his health (physiological needs), but will continue to value his work performance (esteem needs) and will likely return to work during periods of remission.
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PLANO — A suburban Dallas district attorney says there's not enough evidence to uphold the conviction of a man on death row for the child slaying that led to the creation of "Ashley's Laws."
Collin County District Attorney John Roach said in a statement Friday that new DNA evidence does not connect Michael Blair to the 1993 killing of 7-year-old Ashley Estell.
The girl's death prompted the Legislature to pass tough laws, called "Ashley's Laws," that require longer prison terms and public registration for sex offenders.
At the time of the slaying, Blair was on parole after serving only 18 months of a 10-year sentence for burglary and indecency with a child.
Last month, The Texas Court of Criminal Appeals asked a trial court to determine the significance of new DNA testing in the Blair case.
Even if Blair is formally exonerated in the capital murder case, he has been sentenced to three consecutive life sentences in the sexual assaults of other children in the early 1990s.
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Governor M. Jodi Rell (Email) today in a ceremony signed a bill that toughens the state’s law dealing with sex offenders. The governor signed into law House Bill 5033, An Act Concerning Sexual Offender Name Changes.
There is currently no provision in the law that prohibits name changes by sexual offenders. There is only a requirement that they report the change.
“This legislation, which I introduced in February, closes a big loophole in our sex offender laws,” Governor Rell said. “By changing their identities, sexual offenders can avoid detection by authorities and continue to commit crimes that usually claim the most vulnerable in our society.
We are now barring offenders from legally changing their names to escape police attention or to avoid registration.
“This is a simple, common-sense fix to our law that will eliminate the possibility of a registered offender using legal means to remain anonymous. Connecticut residents deserve to have every bit of information that is available to them on sex offenders. This new law provides heightened protection to all of Connecticut’s residents and requires increased accountability for offenders.”
The new law prohibits Superior or Probate courts from allowing anyone who is required to register as a sex offender from changing his or her name unless they notify the commissioner of public safety and provide a sworn statement of intent. The applicant must state that the name change is not being sought to avoid the legal consequences of a criminal conviction, including registration as a sex offender. In addition, sex offenders must include in their notice the new name being sought.
The bill gives the commissioner of public safety standing to challenge the application in the court where the name change is being sought. The court may deny the application if it finds, by a preponderance of the evidence, that the applicant is seeking the name change to avoid the legal consequences of a criminal conviction.
The current law, unchanged by the bill, requires people required to register as sex offenders to notify the commissioner of any name change in writing and without undue delay. It also requires the clerk of any court to notify the commissioner whenever the court orders a name change for a person required to register.
By law, anyone convicted or found not guilty by reason of mental disease or defect of a criminal offense against a minor, nonviolent sexual offense, sexually violent offense, or felony committed for a sexual purpose must register as a sex offender with the Department of Public Safety.
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Shop owner not allowed to work at his store because it is too close to building used as a church
Less than a week after Gov. Sonny Perdue (Contact) signed a revamped version of a law limiting where convicted sex offenders may live and work, a challenge has been filed asking the Fulton County Superior Court to declare the law unconstitutional.
According to a complaint filed May 19, Jefferson shopkeeper Narinder Chahal, whose business is within 1,000 feet of a church, has been ordered by the Jackson County sheriff not to mind his store unless he's ready to go to jail.
According to the complaint filed by his attorney, L. David Wolfe, Chahal pleaded guilty in 2003 to one count of transporting obscene matter to a minor in federal court in Atlanta. He served 21 months in prison and three years of supervised release, and was required to sign up with the Georgia's Sex Offender Registry.
The conviction involved “e-mailing a picture over the Internet,” said Wolfe.
Chahal and his wife subsequently acquired Chicken King, a convenience store across the street from a building that hosts church services on Sundays and Wednesday nights, according to the suit.
According to public notices and the secretary of state's office, the business was chartered in February 2007.
“They didn't know about the quote-unquote church at the time,” said Wolfe. But a few months ago, he said, Jackson County Sheriff Stan Evans notified Chahal that he was not permitted to work in the store under Georgia law.
Under a 2003 law, sex offenders are barred from living within 1,000 feet of a school, playground, gym or other site where children are likely to gather. In 2006, the Georgia Legislature passed a new law adding swimming pools, school-bus stops and churches to the list and—for the first time—barring such individuals from working within 1,000 feet of a church, school or child-care center.
Challenged in a federal class action by the Southern Center for Human Rights and the American Civil Liberties Union, some of the residency provisions pertaining to bus stops and churches were temporarily halted in 2006, but were then allowed to resume.
Lawsuits were also filed around the state by people who had been forced out of their homes and jobs by the law, and last November the Georgia Supreme Court struck down the residency restrictions regarding property owners. But the court left in place the business restrictions, ruling in Mann v. Georgia Department of Corrections, 282 Ga. 754, that a person can own a business and still not be in violation of actually working within 1,000 feet of the prohibited sites.
The General Assembly this year re-wrote the law, exempting property owners or workers who already lived or worked within a restricted area but prohibiting any offenders from moving into or taking a job at a business within the off-limits areas.
But the legislation, Senate Bill 1, only grandfathers in such individuals who worked or lived in the restricted areas prior to July 1, 2006—which places Chahal in violation.
“I had been waiting to see what the governor would do,” said Wolfe, who said he had prepared the suit “a while back” but refrained from filing until Perdue's May 13 signing of the bill.
According to the complaint, the Chahals have two hired employees to operate the Chicken King from 5 a.m. to 2:30 p.m. Monday through Saturday; afterward—until the sheriff issued his warning—Chahal would take over until the store's 8 p.m. closing time. His wife works another full-time job and is unable to work at the store, which is closed on Sundays.
The early-shift employees cannot work past 2:30 p.m., writes Wolfe, and Chahal and his wife cannot afford to hire another employee to work in the afternoons.
Since it has had to close in the afternoons, says the complaint, the store has lost a “substantial portion of its income,” and the wife's income cannot meet the household's expenses.
Chahal has also recently undergone heart surgery and is “unable to find other suitable employment,” is says.
Wolfe's filing challenges the law on two grounds. Because, he says, the store is closed during the times the nearby building is serving as a church, his client should not be considered in violation because the building is not a “church” for the purposes of the law.
And, he writes, Chahal has been deprived of his right to “possess, use, enjoy and dispose of” his property, in violation of the Georgia Constitution.
Chahal was unaware that the store was near a church when he bought it, said Wolfe, and the business was up and running before the sheriff contacted him. Chahal's federal probation officer also tried to intercede on Chahal's behalf, said Wolfe, and has spoken to the sheriff's office about the case, but had been unable to resolve the issue.
“It's like those mandatory minimum cases where the judge really can't decide based on the facts of an individual case,” he said.
A call to the Jackson County Sheriff's Department was referred to Maj. David Cochran, who did not respond to a detailed message left on his voice-mail.
Chahal's is the only case Wolfe has handled challenging the law, he said. But Sarah Geraghty, an attorney with the Southern Center, reviewed the suit at the Daily Report's request and said is seemed to raise convincing arguments.
“I'm impressed,” she said. “This is a very well-written brief, and I'd say it has a good chance of succeeding.”
Geraghty and the Southern Center filed an amended complaint in federal court challenging the new law moments after it was passed, arguing that the legislation discriminates against renters who can be forced to move, and are not grandfathered in; that it treats all sex offenders the same, whether they are serious threats to children or simply teenagers who engage in consensual sex; and that it unduly burdens nursing home residents or other aged or ill individuals who may pose no threat to the community.
The Chahal case, she said, illustrates another problem area with the law.
“Here's a man, gainfully employed, owns his own business, who can't work because he's near a church that's not even open when his business is,” she said.
“It's further evidence of a poorly drafted, overly restrictive law,” said Geraghty.
The case is Chahal v. Georgia Department of Corrections, No. 2008CV150901.
Staff Reporter Greg Land can be reached at email@example.com
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Hingham - I respond to Carolyn White’s commentary, Bad Information Can Be Harmful (Journal, May 1). Time and time again I read articles or listen to reports relating to the Sex Offender Registry, which is divided into levels one, two and three. Level three includes several types including those that seem to be compelled to seek contact with underage youth or even pre-puberty children, also those who could care less of the law and intend to seek out youth for sexual contact. There are probably also level three’s who have had enough trouble and will never be a problem again.
A problem I see is that the public appears to put all so-called sex offenders in one basket. I often hear all sex offenders referred to as perverts. I think that some are but many are not. I think that we must not get so fired up that we relive the 17th century witch trial delusion. Some level twos (for example) came from DYS homes. Some of these sex offenders became sexually immature adults making them more prone to having an affair (often mutual) with an underage girl. I know of more than one case where a provocative underage female was a weekly babysitter and had an affair with an adult male in the house. This is not uncommon.
Some men are turned on by physically mature beautiful women even if some of those females are underage. When I was in college the dorm was as good a place as any to get a good look into the young adult males mind.
I was a boy from a divorced home. As I physically matured my mother realized she could not handle me alone. In the very month I turned 13 (September 1947), I was sent to a distinguished boys school where I was sexually abused in my 13th and 14th years. This later had an extremely traumatic effect upon my stability and nearly led me to self-destruct. Many in like situations have self-destructed. I, by my sheer determination, crawled out of the black hole. I have survived successfully having served my community as well as enjoying expertise as a historian, wetland scientist and a naturalist of sorts.
Having been sexually abused over a long period of which resulted in many unstable years, you might assume I would be a raging force against all sex offenders, but I am not. Many offenders classified as either levels one or two, had one-time affairs and are not the least bit dangerous to society. I think that we should insert a level 3.5 for adultery/infidelity. Adultery/infidelity are one of the forces tearing this society apart and may be responsible for creating generations of unstable adults who may, in some cases, become level three offenders.
99 Fort Hill St.
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Organization Fights Residency Restrictions Against Sex Offenders
DOVER -- The New Hampshire Civil Liberties Union is renewing its effort against ordinances that limit where sexual offenders can live.
The organization has filed motions with Dover District Court arguing charges against registered sex offender Richard Jennings should be dropped. The organization is arguing that the city does not have the power to restrict where sex offenders can live, that state criminal law dealing with sex offenders pre-empts the local ordinance and that the ordinance violates constitutional guarantees of due process and equal protection.
The city's ordinance bans registered sex offenders from living within 2,500 feet of a school or day-care center. It was adopted by the city council in October 2005.
Jennings was charged with violating the ordinance.
Civil Liberties attorney Barbara Keshen said the case probably will be appealed to the state Supreme Court, which could throw out Dover's ordinance and others like it in the state.
"The basic concept is one of fairness -- that the state ought to deal with sex offenders in their population equally and that cities and towns shouldn't be able to, on their own, simply opt out," said Keshen.
Franklin, Tilton, Northfield and Boscawen have adopted similar residency restriction ordinances.
Keshen said sex offenders deserve the same protections under the law as other citizens.
"For Dover, for Tilton, for Franklin, for those communities to say, 'We don't want sex offenders in our jurisdiction,' means that sister cities and sister towns are going to have open doors to them. You can't close the state off to them," said Keshen.
She said the ordinances are too broad and aren't based on evidence they will make children safer.
Dover officials said they will defend their ordinance.
Last month, Jennings was charged with failure to report, a felony, for allegedly continuing to live in Dover even though he had registered at his parents' in Epping after he was forced out of the city.
He served four years in prison after pleading guilty in 2000 to two counts of felonious sexual assault for having sex with a 15-year-old girl.
Over the last 24 hours, news about U.S. torture has been leaking out:
- A former prisoner testified to Congress that he was beaten, hung by his arms for five days, subjected to electrical shocks and, "They stuck my head into a bucket of water and punched me in the stomach," he said. "I inhaled the water. ... It was a strong punch."
- The FBI was so disturbed at what they saw at Guantanamo that FBI staff created a "war crimes file" to document accusations against American military personnel at Guantanamo. For example, the head of the FBI's national security law unit wrote in July 2003: "Beyond any doubt, what they are doing (and I don't know the extent of it) would be unlawful were these enemy prisoners of war"
- The U.S. military not only tortured prisoners for themselves, but also did the "dirty work" of "softening up" prisoners for Chinese interrogators
The U.S. has also tortured prisoners to death in Guantanamo, Afghanistan, Iraq and elsewhere.
Not bad enough for you?
Well, the U.S. has imprisoned 2,500 children since 9/11 as "enemy combatants", in violation of the Geneva Convention against classifying children as POWs.
Still not disgusted?
Okay . . . Pulitzer-prize winning reporter Seymour Hersh says that the U.S. Government has videotapes of boys being raped at Abu Ghraib prison (see also this and this).
This doesn't come as a complete surprise, given that assistant deputy Attorney General John Yoo has publicly argued that the president can order the torture of a child of a suspect in custody – including by crushing that child’s testicles.
Congratulations, America. This is being done in your name.
If you're not sick to your stomach by learning that your government has been killing and torturing people - including children - then you are a psychopath or a pervert.
Don't try to tell me that torture is a necessary evil. It is well-known by professional interrogators that torture doesn't work. Experts on interrogation say that torture actually interferes with the ability to gather useful information.
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Seventh grader says she was propositioned for sex
LA GRULLA - The La Grulla police chief has been suspended without pay. This is after Alfredo Hernandez was charged with soliciting sex from a minor.
A seventh grader claims the incident happened at an after-school function. Hernandez has been booked and is already out of jail.
NEWSCHANNEL 5 wanted to know what he had to say to the accusations. Hernandez tells us, "I've been advised by my lawyer not to say anything."
But residents in La Grulla are saying a lot. People we spoke to say the police chief's arrest is an embarrassment to the city. And the Starr County district attorney says the incident has happened more than once.
The city's mayor tells us Hernandez will be off the job, pending the outcome of his trial. Meanwhile, an interim chief is watching over the police department.
NEWSCHANNEL 5 learned if Hernandez is convicted, the state could revoke his peace officer's license.
- Is that all?
IN THE SUPREME COURT OF THE UNITED STATES
DELBERT W. SMITH AND BRUCE M. BOTELHO, Petitioners v. JOHN DOE I, ET AL.
November 13, 2002
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:04 a.m.
APPEARANCES: JOHN G. ROBERTS, JR., ESQ., Washington, D.C.; on behalf of the Petitioners.
THEODORE B. OLSON, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the United States, as amicus curiae, supporting the Petitioners.
DARRYL L. THOMPSON, ESQ., Anchorage, Alaska; on behalf of the Respondents.
CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 01-729, Delbert Smith and Bruce Botelho versus John Doe.
ORAL ARGUMENT OF JOHN G. ROBERTS, JR.
ON BEHALF OF THE PETITIONERS
MR. ROBERTS: Thank you, Mr. Chief Justice, and may it please the Court:
Alaska's Megan's Law makes available to members of the public who seek it certain truthful information about convicted sex offenders. The State makes this information available to help protect against the risk that the convicted sex offender will offend again. It says that in the law. Sex offenses are crimes of opportunity, and the purpose of making the information available is to allow the members of the public to take steps to reduce those opportunities.
QUESTION: One -- one line that I -- I think there is respondents seek to establish in this case is that this information has to be generated by acts that occur after the conviction. You have to fill out the form some -- four times a year, et cetera.
I -- I've read in the brief -- I'm sure my colleagues have too the -- the problem about going to the police station. Just assume hypothetically that you had to go to the police station four times a year. Would that change the case?
MR. ROBERTS: No, it wouldn't, Your Honor. That's the case in -- in about 14 States that -- that a quarterly verification has to be in person. It is not the case in Alaska. And simply going to the police station four times a year, which is reserved only for the most serious sex offenses, the aggravated offenses -- in all other cases it's just annually -- doesn't rise to the level of a burden that is at all tantamount to what we think of as punishment under the Ex Post Facto Clause.
QUESTION: I have forms I have to fill out four times a year for the Government. I'm always afraid I'm going to miss the deadline. If I had to present myself to a -- a policeman, which is itself I think demeaning, I -- I just don't know any analogue for -- is there any analogue for that in -- in regulation of --
MR. ROBERTS: In-person registration?
QUESTION: -- the regulation of regulated industries or things like that?
MR. ROBERTS: I'm not sure of one where you actually have to show up in person, but the question is whether that in-person requirement is rationally related to a legitimate regulatory purpose. That's the standard under cases like Flemming.
QUESTION: Well, Mr. Roberts, do they in Alaska have to go personally or not?
MR. ROBERTS: They do not. It clearly --
QUESTION: Even for aggravated offenses?
MR. ROBERTS: Even for aggravated offenses.
QUESTION: And it can be filed by mail. or how?
MR. ROBERTS: Expressly can be filed by mail. The instructions make that clear.
QUESTION: Could -- could the administrative authorities interpret the statute so that you would have to go to the station without amending the statute?
MR. ROBERTS: I don't think so, because the statute says the initial registration has to be in person. Typically it's in -- in prison. And then it says the later verification has to be in writing. So I think it would be an unreasonable reading of the statute to say that the later verification had to be in writing.
QUESTION: Do we have an issue here because this law was passed after a number of the people affected by it had already been convicted, and so there are allegations of retroactivity concerns?
MR. ROBERTS: The question is whether the burdens that the law imposes constitute punishment. If it's not punishment, then it's perfectly valid to apply it to people who were convicted prior to the effective date. And this is not --
QUESTION: Mr. Roberts, the only challenge in this case is to the retroactivity. Is that correct?
MR. ROBERTS: Only the ex post facto challenge is before the Court in this case.
QUESTION: And that's because these people were tried, convicted, served their time before the passage of the act.
MR. ROBERTS: That's correct, and --
QUESTION: And their principal complaint, as I understand it, is that this is punishment because we can't get out. There's no escape from it. We can prove with expert testimony that we are cured. Nothing will get us out from under this demeaning regime, that much more than the burden of going to a police station, that that's what it's about, that we're locked into this for life and it has a devastating effect on our lives.
MR. ROBERTS: Well, for life, again only for aggravated; for 15 years for other sex offenses. And yes, that is one of their arguments, that they can't get out of it.
But this Court's cases haven't drawn that line. The question is whether the burdens are pursuant to a legitimate regulatory objective, or whether they're punitive. For example, in cases like Kansas against Hendricks, couldn't get out of that, and yet that didn't make it a violation of the Ex Post Facto Clause. Flemming against Nestor. You couldn't avoid the sanction there, and yet it did not rise to the level of punishment.
QUESTION: But there was a -- there was a determination, at least in Hendricks, that you fit -- currently fit into a certain category.
MR. ROBERTS: A -- a particular subclass, yes. It was an individualized determination required because the depravation there, actual confinement, was far more severe than the depravation at issue here. But neither an individual determination, nor a chance to get out of it is required to avoid the categorization as punishment. Cases like Hawker and De Veau make clear that a -- a reasonable legislature can treat a category -- a category of sex offenders. They don't --
QUESTION: But in Hawker, you didn't have to do anything. Here --
MR. ROBERTS: Hawker was --
QUESTION: -- I don't like to use the word "affirmative action," because that has a connotation in some other -- but you have to take an -- affirmative steps for the rest of your life in -- in some cases. And this -- and this seems to me very, very burdensome and to differentiate this class.
MR. ROBERTS: Not true, of course, in Hendricks or Flemming or Salerno, no opportunity to avoid it there. You didn't have to do anything to get the sanction applied to you. Now --
QUESTION: No, no, no. I was -- I was saying but the requirement of the statute is that for the rest of your life you have to take affirmative steps to -- to re-register --
MR. ROBERTS: You have to register.
QUESTION: -- and to list all your automobiles and -- and to show that you've --
MR. ROBERTS: You -- you have to fill out --
QUESTION: -- shaved your beard or something.
MR. ROBERTS: -- one -- one side of one page. That's the form that's involved here. That in itself cannot be punishment. We -- as Your Honor mentioned -- we do that all the time in -- in today's society. So it must be something else that makes this punishment.
Now, what the Ninth Circuit's -- Ninth Circuit thought was that it was publishing it on the Internet, that that made it punishment. But that's simply the most -- most efficient and most economical way of making information available.
It also is passive. It's not displayed to people who have no interest in the information, and in that sense is far less invasive.
The publication on the Internet will -- yes, it may cause adverse consequences when members of the community learn this public fact about someone's past. But the State is certainly free to weigh the convicted sex offender's interest in keeping that public fact from being widely known against the interest of those in the position of, say, Megan Kanka's parents.
QUESTION: Well, "waive" -- "waive" isn't quite the word, Mr. Roberts. I mean, "waive" is something a person does --
MR. ROBERTS: "Weigh." I'm sorry. "Weigh."
QUESTION: Oh, I thought you said "waive."
MR. ROBERTS: I'm sorry. Weigh the convicted sex offender's interest in keeping a public fact about his past secret against Megan Kanka's parents' interest in knowing that their new neighbor across the street had twice been convicted of sexually abusing young girls. That's a determination for the legislature to make.
There are costs --
QUESTION: But you could get that from the record of conviction.
MR. ROBERTS: Yes, and all the State is doing --
QUESTION: But under the statute we have here, you have affirmative steps that have to be taken for the rest of the person's life if he's a violent offender, to report four times a year. I just don't know any analogue for that.
MR. ROBERTS: Well, there are countless analogues in the regulatory regime where people have to file quarterly reports. If -- and -- and the question is whether that requirement serves a valid regulatory purpose. It can't rise to the level of punishment just because the legislature has determined that the triggering event --
QUESTION: Well, but I suppose that's because you choose to be in a regulated industry, or you choose to have this withholding regime. And it's -- it's not imposed on a class of citizens by reason of their criminal past.
MR. ROBERTS: There are -- there are many disabilities that are imposed as a result of a prior conviction that the Court has found don't constitute punishment.
QUESTION: None which require affirmative steps.
MR. ROBERTS: Well, the affirmative steps -- it -- that has never been the test. The test has been whether it rises to the level of punishment. Yes, the affirmative step of filling out one side of one page with the sort of information that you'd -- would put on your application to join the Price Club requires. There's nothing burdensome about that. It must be in their argument the use that that information is put to.
QUESTION: What is our test for whether it rises to the level of punishment?
MR. ROBERTS: Well, when the --
QUESTION: Didn't the Ninth Circuit found -- find there was no intent to make it punitive, but looked to the effects?
MR. ROBERTS: That's right.
QUESTION: Is it an effects test and how do we apply it --
MR. ROBERTS: Well, it's called the intent effects test. You'd first see what the intent is, and that is so critical, and nearly controlling because the same sanction can be punitive or civil depending on the purpose. Even confinement can be civil if the purpose is protective. So that's why purpose is so controlling.
Now, once you determined that there's a regulatory purpose, as every court has -- not just every Federal court -- every court to look at these laws has determined they have a valid civil regulatory purpose -- then the one challenging that determination carries the heavy burden of establishing, by the clearest proof, with unmistakable evidence, that the effect is so punitive that the purported purpose must, in fact, be a charade. And --
QUESTION: But why isn't the evidence that this is -- is a face plastered on the Internet, that in modern times that is the equivalent of the town square where you're shaming the bad actor? And here, you have a person's face, and you have only the bad information. You don't get the information that this person has successfully completed a rehabilitation course. You don't get the information that this was on the scale of sexual offenses on the lighter side. The -- am I wrong about that?
MR. ROBERTS: Yes. That information is available. The circumstances, the crime for which the person is convicted, is available. So --
QUESTION: Is it -- that's on the page -- the page with the photograph says what the crime was?
MR. ROBERTS: That's my understanding, Your Honor, yes, that -- that -- I'm not sure what it is in every State, but the -- the circumstances of conviction is -- it's one of the things that has to be registered, and is available to the public. So if it -- you can find out what the conviction was for.
Now, I don't -- I'm sorry.
QUESTION: In addition, on that page, what the viewer will see -- you don't see on the page with the face any disclaimer, any statement that the State is not branding this person as dangerous. The State is simply making a statement that there was a conviction in the past.
MR. ROBERTS: It conveys simply the truthful, objective information that this individual was convicted of this crime, and the public is free to take appropriate action if they think that's -- that's appropriate under the circumstances. It is different from the historic shaming penalties because of the purpose. And again, purpose is the nearly controlling factor. The purpose of the shaming penalties was not to inform. Everybody in the colonial village knew the circumstances of the offense. The purpose was to shame. Here, the purpose is to inform.
QUESTION: Mr. Roberts, on that point you said this is truthful information, and it is. My question is, isn't -- it's not the whole truth because the successful rehabilitation in one case is not known. It's not known in the other case that a judge determined this -- this person had been cured to the extent that he could have the custody of a -- a minor child. That information is not known. So the -- the public is getting only the bad, and not the good. Its judgment is being skewed. And that's why it has a punitive flavor.
MR. ROBERTS: Well, it conveys the information that the legislature thought was pertinent for people to take action to protect themselves if they think it's warranted. Nothing prevents them from finding out more if they want to -- if they think that's pertinent --
QUESTION: But nothing would prevent anybody from going to the court, or the police station and getting a record of a particular person. It's made easy for them by the State -- access is made easy -- but only access to the bad information.
MR. ROBERTS: Well, access to the information that the legislature thought was pertinent and that people wanted to learn. There is no requirement --
QUESTION: Mr. Roberts, would it be possible for a defendant to include additional information on the form, and if so, would it appear on the Internet?
MR. ROBERTS: There's no provision for that under Alaska's laws. I am aware of situations where -- where they have a more active notification, where the offenders have taken steps to say, well, here's my side of the story, but there's no provision for that on the Internet.
QUESTION: Suppose they had the same statute, but instead of it -- applying it to people who were convicted, they applied it to people who had been arrested, or alternatively, they applied it to people whom a policeman said he had gotten suspicious information about that he believed was accurate, no arrest -- now, suppose it's exactly the same, but they just do -- they apply it not in that way. What part of the Constitution, if any, would that violate?
MR. ROBERTS: Well, it might violate the Due Process Clause if there's not a rational connection between --
QUESTION: Well, it's rational in the sense that a -- a reasonable person would think that these -- it's a way of stopping these, you know, criminals. They're suspicious. They're -- they're -- suspicious people against whom there are suspicions are more likely to commit crimes than people who are not suspected.
MR. ROBERTS: The legislature would have to show a rational basis for its categorization. That's the standard --
QUESTION: All right. Your answer is it violates substantive due process or nothing.
MR. ROBERTS: Or -- it may or may not, depending on what it shows.
QUESTION: All right. I've got that. I --
MR. ROBERTS: Here the legislature had a solid basis, a basis that this --
MR. ROBERTS: -- Court has recognized, as recently as last June in the McKune case, for the conclusion that those convicted have a high rate of recidivism.
QUESTION: Well, are you assuming from Justice Breyer's hypothesis, Mr. Roberts, that the policeman who has spotted some suspicious -- that these people have previously been convicted, or that this is just the -- the beginning of the whole story is that a policeman spots someone?
MR. ROBERTS: Well, I understood the question to be it's just the beginning of the whole story, and in that case, I'd question whether --
QUESTION: Well, there's certainly no ex post facto problem there, is there?
MR. ROBERTS: No, there wouldn't be --
QUESTION: No, what I was driving at is suppose that this statute too is -- I -- suppose I were to believe it was excessive in light of its purpose in respect to some -- some people, but not to others. What part of the Constitution would it violate, if any?
MR. ROBERTS: Certainly not the Ex Post Facto Clause because in Seling against Young, the Court said you look at the law on its face, not as applied. Halper had started looking at laws as applied to determine whether they're punishment, and in Hudson and in Seling, the Court said we're not going to do that.
I'd like to reserve the remainder of my time, Your Honor.
QUESTION: Very well, Mr. Roberts.
General Olson, we'll hear from you.
ORAL ARGUMENT OF THEODORE B. OLSON
ON BEHALF OF THE UNITED STATES,
AS AMICUS CURIAE, SUPPORTING THE PETITIONERS
MR. OLSON: Thank you, Mr. Chief Justice, and may it please the Court:
Congress and the legislatures of 50 States have agreed that citizens should have access to truthful information concerning the identity and location of convicted sex offenders.
QUESTION: Well, I suppose that the public in theory has access to it anyway because convictions are a matter of public record, and presumably any citizen who wanted to dig deep enough could find out who had been convicted of what.
What this scheme involves is getting a big megaphone, in effect, making it more readily available. Is that what we're talking about here?
MR. OLSON: I don't agree with the characterization of this as a megaphone. What I -- what I would characterize it instead of saying it is the least intrusive, most passive way to provide information that is already available to citizens, and can be obtained by citizens, but to make it more accessible to them because the people have decided that they want this information.
QUESTION: But it isn't passive because you have a lifetime obligation to update it.
MR. OLSON: Yes, but it's --
QUESTION: It is not passive.
MR. OLSON: But it's -- but it's minimally passive and -- and minimally --
QUESTION: Now we're up to minimally passive.
MR. OLSON: Well, Justice Kennedy, we have to register to vote. We have to register to marry. We have to register to get a driver's license. We have to disclose our homes when we buy a car, when we get a divorce, when we fill out a census form.
QUESTION: And most -- most of those do not involve -- involve shame or ridicule. This does.
MR. OLSON: Well, the -- that is a separate question. I'm -- what I'm saying is that the burden of registration or of keeping information current is a minimally intrusive burden.
Now with respect to the question of shame, that arises, to the extent that it exists at all, from the conviction of violating a sex offense. There is due process in connection with that -- that -- to the extent that process is due -- and we'll get to that I know in the subsequent case, but --
QUESTION: Well, but precisely, but that -- that shows that there's an added burden here that was added by the State after the conviction.
MR. OLSON: Yes, but that -- that is true of many regulatory measures. You can lose your right to practice in the securities field -- and that's been held -- because of a conviction or to practice banking or the right to vote. There are other consequences. This Court has repeatedly said --
QUESTION: If a banker or securities dealer were convicted of -- of -- of a crime, could the Government after the fact -- prospective -- pardon me -- retroactively -- retroactively require that he or she file their -- their earnings statements for the rest of their life with some regulatory agency?
MR. OLSON: Well, I don't -- I -- I don't -- the Court has never addressed that question, but the Court has held that after the fact, it can -- the -- the legislature can prevent those persons from practicing that profession, including the practice of medicine, being a fund raiser for a union, losing the right to vote. The fact that this -- what the -- this --
QUESTION: But, General Olson, there's a -- a difference in those -- those restrictions that affect one part of one's life. I can't practice a particular profession, but I can go out and get a job. I -- I'm not affected in where I live. My neighbors know that I've committed a crime, but they don't -- the same reaction -- the notion that I am being labeled not a convicted offender -- which I am -- but a sex offender, a current status -- a current status with no opportunity to get out.
MR. OLSON: Well, the -- well, the fact of registration and disclosure relates to the conviction of a sex offense. The public in 50 States and the legislature and Congress have determined in response to the requests of the people -- as Mr. Roberts said, the test, according to this Court's jurisprudence, is the intent. The intent here is not to punish. The intent is to respond to citizens who have --
QUESTION: Well, I think it's -- it's easy for a legislature to say that, and in part, it's right. But in part, it seems to me that there are many indicia of punishment here as well. That's why you just don't rest when the legislature says it's regulatory. You must go beyond that.
MR. OLSON: Yes. This Court has said that only -- you would go beyond that only if the evidence was the clearest proof, unmistakable evidence that the intent or effect was punitive as opposed to regulatory. In this case, there is no affirmative restraint on motion. There is no confinement. There is no restriction on travel or employment or recreation, no obligation to submit to searches, intrusive supervision or questioning.
QUESTION: Well, there's no formal restriction on employment, but it -- in many of these cases, these people have terrible times renting a place to live, getting a job.
MR. OLSON: Well, the empirical evidence is not great that that is indeed a significant statistical problem, but the problem, to the extent that it may exist, results from the conviction of a -- of an -- of an offense --
QUESTION: No. With -- with --
MR. OLSON: -- about which an employer may want to know.
QUESTION: With respect, Mr. Olson, I mean, I think that's what's bothering us. The -- the offense has resulted in a conviction and a penalty. Each is a one-time event, as it were, or a one-time status and each is over. What this is doing is, in effect, imposing a status of public shame for a period of 10 years, or whatever it is, or a period of life in -- in the case of certain offenses. And that is not merely the consequence of the conviction for the crime which was defined, is over, and done with. This is something new.
MR. OLSON: Well, to apply the seven -- to the extent that the Court would apply the Kennedy Mendoza-Martinez factors, there is no affirmative disability or restraint. Registration or publication has never been considered historically as punishment. The -- the -- there is a regulatory purpose. The -- even the Ninth Circuit --
QUESTION: May I ask you a question about that? I -- I understand that the -- the percentage of sex offenses in Alaska with children is extremely high, and what is -- has been the effect of this scheme if it's been employed? Has it had some effect there --
MR. OLSON: I --
QUESTION: -- in reducing the number of sex offenses?
MR. OLSON: I do not know the answer to that, and perhaps Mr. Roberts does.
But what this is -- and I think this is a proper way to think of this statute -- in connection with a class of offenses, where the -- where the rate of recidivism is significantly higher -- as this Court has held very recently -- than any other crime, people are asking their government please allow us to know when we have someone in our neighborhood. When we -- when we're hiring a new --
QUESTION: Could -- could the State require a special mark on your license plate?
MR. OLSON: No, I -- well, I don't know, Justice Kennedy, but I would say that would be considerably different than what's here because that would --
QUESTION: I don't think it's very different.
MR. OLSON: Pardon me?
QUESTION: I don't think it's very different.
MR. OLSON: I -- I respectfully submit that it's a great deal different. That mark on your license plate, or mark on your forehead would go wherever you would go. It would require you to carry the government's message rather than the government supplying the message.
QUESTION: Well, this statute requires you to make the government's message four times a year.
MR. OLSON: It only -- it doesn't require you to make the government's message four times a year. The government's message, I respectfully submit, is made when a citizen submits an inquiry to the State through the Internet listing. All -- it is required four times a year is to advise the government of a current location or current information so that the information on the registry is accurate and -- and up-to-date.
This is information that citizens have requested of their government. Their government has the information of people who have committed certain types of crimes, who society has perceived as particularly dangerous. It's a self-protective mechanism. The -- not only the --
QUESTION: But they -- the Megan's Laws are not all one size and shape. I mean, some of them have the disclaimer right on the page saying we're not labeling this person dangerous and -- and have a chance for a person to get off it. Here, because there's no give, it does have a punitive feel.
I mean, as far as the Federal legislation is concerned, a State that tells the whole truth -- is that -- that kind of law is totally acceptable within the Federal requirement, isn't it?
MR. OLSON: It -- it would seem to -- well, I think the answer is that yes, it would because the Federal statute simply prescribes a floor.
It's going to be virtually impossible and quite burdensome for the State to supply what you suggest would be complete information about any individual. What the parents and the --
QUESTION: It doesn't -- at least to say what -- whether the crime was a misdemeanor or a felony, the disclaimer certainly to -- to say, now we are not labeling this person a forever sex offender. We are labeling this person a convicted --
MR. OLSON: Well, and that is all that the registry does, and I submit that to the extent that your question goes to any of the seven Kennedy Mendoza-Martinez factors, it's excessiveness is -- on -- on the scale.
MR. OLSON: And I would submit that this registry and this information, providing truthful, public record, readily accessible information is -- is minimal.
QUESTION: Thank you, Mr. Olson.
Mr. Thompson, we'll hear from you.
ORAL ARGUMENT OF DARRYL L. THOMPSON
ON BEHALF OF THE RESPONDENTS
MR. THOMPSON: Mr. Chief Justice, and may it please the Court:
We believe that the Alaska Sex Offender Registration Act imposes punishment because it possesses three features which are classically considered to be punishment, and not like any other civil or regulatory measure this Court has seen before.
First of all, the sanction attaches automatically and inescapably solely on a basis of a prior conviction, without any determination of present dangerousness at all.
Secondly, the sanction is a pervasive regulation of the person themselves. There is no attempt to try to regulate an activity or a profession here. It's a regulation of the person himself.
QUESTION: Well, to what extent do you -- do you mean, Mr. Thompson? You said to regulate the person himself. I mean, he is not circumscribed in his activities, is he?
MR. THOMPSON: He has to report four times a year.
QUESTION: But not in Alaska --
MR. THOMPSON: Just like they do on probation.
QUESTION: In Alaska, not in person, I take it.
MR. THOMPSON: Well, we respectfully disagree with Mr. Roberts' characterization of the statute. The statute gives unfettered discretion to the Department of Public Safety -- the police -- to administer it in a way that it deems appropriate.
QUESTION: How -- how has it been administered?
MR. THOMPSON: Regulatorily they have done it by mail. But I can cite you instances, with affidavits in a parallel case, of people that were mandated to report to the police. They can do it and --
QUESTION: Well, but that's not part of -
MR. THOMPSON: -- have the discretion to do it.
QUESTION: That's not -- that's not part of the record here, is it?
MR. THOMPSON: That is not part of the record here. But they have --
QUESTION: At least -- at least --
MR. THOMPSON: -- the unfettered discretion by the pure statutory language.
QUESTION: When the -- they have to replace the photographs periodically.
MR. THOMPSON: They do, and -- and they're required to -- on their quarterly report to report any changes in their physical characteristics, they gain weight, they grow gray hair, they get lasix surgery, don't have glasses, grow a beard, get fat. Whatever it is, they've got to report that information. And you know that's going to be a triggering event. I mean, if they look different, the police are going to have them come back in and get a new photograph --
QUESTION: Well, but I mean, how is that different? Everybody -- you're sort of turning this on whether you have to walk to the police station or not. I mean, a lot of people have to go in and report different things, send in forms, give their pictures, even give their fingerprints.
I would think that the problem is what happens to that information later, that everybody in the neighborhood knows it, that they're likely to shun the people, that -- that it may be too broad. I mean, is that -- is it really the police -- having to walk somewhere and write something as opposed to sending in a report that makes all the difference?
MR. THOMPSON: No. I mean, what I -- what I -- the third characteristic is -- is the stigmatizing characteristic, which I want to -- want to talk about here. But it's not just --
QUESTION: Well, what about someone who is truly a dangerous sex offender, who poses a real risk to children in that area? Now, what about that? Are -- is this a -- a scheme that is applied to such a person that poses constitutional problems, do you think, or does public safety rise to the level where it can be responded to in this fashion?
MR. THOMPSON: Well, unlike the -- the Kansas situation, Kansas v. Hendricks, there's no effort to weed out those who are dangerous from those who are not.
QUESTION: Yes. That's not the question I asked you.
MR. THOMPSON: I apologize.
QUESTION: I asked you whether, as applied to someone who is exceedingly dangerous, in your view does the scheme survive?
MR. THOMPSON: Well, no. It's still an evasive regulation of the individual just like probation and it's still a stigmatizing system that labels them as dangerous.
QUESTION: Maybe he deserves stigmatization if -- with the high recidivist rate under the facts that Justice O'Connor gave you. The person is still dangerous.
MR. THOMPSON: But not all of them are. And that's the problem with this statute. It applies to those people that are demonstrably not dangerous.
QUESTION: If that's the problem --
QUESTION: But your --
QUESTION: -- how -- how -- this is -- what is your response to Justice -- to the argument that was made on the other side? It said simply this, that you're -- you're raising an ex post facto claim. Now, we don't want to be nitpicking about this, but an ex post facto claim is a question of whether this is punishment, and they're saying it's not seen as punishment. It wasn't their intent to punish. It was their intent to inform so that the thing won't happen again. That's not a punitive intent.
And therefore, your claims about how bad this is may be right. And suppose I accept them. Suppose I think they're right. Should I not, nonetheless, wait until somebody raises a substantive due process claim? That way you can decide if the problem with the statute is overly broad, if the problem is that some people should have it applied to them and others shouldn't. All the things that you mentioned would come into play. But as far as punitive intent is concerned, that's not the legislature's --
MR. THOMPSON: Well, we -- I'm sorry. We disagree --
QUESTION: I mean, that's the argument.
MR. THOMPSON: Yes.
QUESTION: And I'd like to -- but tell me what about the relation of the substantive Due Process Clause -- about why isn't that the better vehicle to make your argument? Now, that's what I'd just like to hear you discuss.
MR. THOMPSON: I mean, it certainly is a vehicle, you know, to talk about whether or not it's narrowly tailored to -- to a specific regulatory goal. I think that is a proper challenge, and it was challenged at the lower court level.
But we're here today on an ex post facto question before the Court, and the question is, is it punishment, or is it not? And we -- we respectfully disagree that this is intended to be purely a regulatory measure. And we disagree because the State's sole reliance is on the language found in the preamble of the statute, that it's designed to protect the public. That's one of the penal goals under the constitution in the State of Alaska for criminal justice system.
QUESTION: Of course, that's true, but in my mind rings a case, in which I was in dissent, but the majority has the law, and that's Hendricks. If, after all, it's not punishment to put a person in a cell -- and I thought it was, but the majority thought it wasn't -- why is it punishment, following the law, to simply require the person to make reports four times a year?
MR. THOMPSON: Well, it is -- it is -- probation requires the exact same thing, and that's our point.
QUESTION: And it -- it required less than putting the person in what was, in effect, a jail cell. I'm -- I'm looking at the precedent on ex post facto.
MR. THOMPSON: Certainly. And -- and -- and you know, Hendricks and Salerno present the types of cases that are steeped in the pedigree of this Court looking to the need to protect the public from those people that are actively dangerous now, and that's why it was important in Hendricks that there was, in fact, those protections afforded to the individual. I mean, it doesn't happen automatically that Hendricks was going to be put in jail. There had to have been a jury trial, or trial by a judge with a preponderance beyond a reasonable doubt, and he's allowed an annual review. He can petition at any time. The secretary, at his own discretion, can remove that restriction. So the duration of that is solely limited and -- and looks to the purpose to protect the people from those -- the public from those people that are dangerous.
None of those protections are here. In fact, this is a wide-sweeping statute that takes everybody in. And -- and we have to look --
QUESTION: I -- I guess that one of the problems I have with -- with your side of this case is that this is public information insofar as a conviction is concerned. Insofar as addresses, credit card companies, and driver's license bureaus have this stuff all the time. It would seem to me that if the Court were to strike down these laws, some private business could have a web -- a web page, just like credit card companies do. There may be some Privacy Act concerns, but still, this is truthful information.
MR. THOMPSON: It's not truthful information, and respectfully, I -- I agree with what Justice Ginsburg was saying earlier. I mean, it's -- it's false --
QUESTION: It's -- it's truth as far as it goes. There's nothing false in the information reported. I questioned whether it was the whole truth because it has the bad side, but none of the good.
MR. THOMPSON: It's sort of the sin of omission, particularly when we look -- we look to --
QUESTION: Well, I -- I suppose a lot of credit --
MR. THOMPSON: Well, and -- and it goes further than that.
QUESTION: -- the credit reports are misleading too. Maybe the person is now very successful, and is paying all their bills. You don't know.
MR. THOMPSON: But the legislatures made it clear that they are telling the public that these people weren't just someone who once had a conviction. They're telling the public that these people are actively dangerous now, presently dangerous to be actively avoided.
And how do they do that? If you know someone is on the registry -- and the idea being make my own informed choice. Now that I know this information, get some more information. And if you know they're on the registry and you get the rest of that information, you know they're cured, you know they've been great --
QUESTION: Well, does -- does any entity in a society, a -- a nursery school have an interest in -- in knowing the background of their employees?
MR. THOMPSON: Readily available, and it has always been available and it was available before the statute.
QUESTION: Well, they have an -- they have an interest in knowing that. That isn't -- that isn't somehow punitive or -- or half the truth. They make the -- they make the inference that there's -- that there's a hazard here, a risk they don't want to take.
MR. THOMPSON: What I was getting at earlier was -- is that the State of Alaska makes it a crime, felony child endangerment, if you leave your kid alone with someone who's on the registry. And it doesn't matter that that person is safe. It doesn't matter that that person is not dangerous. So the State is telling you that they are to be avoided.
QUESTION: Well, but that -- that issue is not -- not before the Court, and if that's so, this -- this just shows that it's a regulatory scheme which has another valid purpose.
MR. THOMPSON: We disagree. What we think that demonstrates is that it's a clear proclamation because it came at the same time as the amendments in '97, a clear proclamation of a legislative intent to tell the public that everyone on that registry is currently, presently dangerous.
QUESTION: Well, you disagree with -- you disagree with the court of appeals then when they said it was not a punitive intent on the part of --
MR. THOMPSON: Yes, we do disagree with that and we -- we briefed that in our brief.
QUESTION: Well, you would -- you would concede that it is least ambiguous because the legislature said our purpose is regulatory. So you're not going to say that's -- that's incredible.
MR. THOMPSON: Well, the legislature never said it was a civil regulatory measure. What the legislators said and what their sole reliance on intent is, is in the preamble where it says it serves to protect the public. And -- and it's clear that protection of the public in -- in Salerno was -- was viewed as a proper regulatory goal, but in -- in Brown it's also viewed as a proper criminal goal. And in Alaska, it's the goal -- one of the stated goals under article I, section 12 of the penal administration -- it is a criminal goal to protect the public. So I don't think that -- that's -- that's --
QUESTION: But it's a civil goal too, I --
MR. THOMPSON: It is a civil goal too.
QUESTION: You rely to some extent on the placement in the criminal code both that the information about this registry system has to be part of every criminal judgment and part of every rule 11 colloquy.
MR. THOMPSON: That's -- that's true. The legislature, you know, in our view considered it such an important component and consequence of any criminal conviction, that in fact, that's the only information that a judge has to give to someone convicted of a sex offense in writing.
QUESTION: So I thought it might be fair for you to say, well, it's -- it's mixed. It's ambiguous. In some respects, it's -- looks regulatory. In other respects it looks punitive. I thought that's what would you say instead of -- so we have to look further. But are you saying right from the very reading of this law, it is necessarily punitive?
MR. THOMPSON: We do believe that. I mean, it was intended, again, to protect the public, but when you look to a law that's -- that's geared directly at individuals or groups of individuals and not set out to regulate any kind of activities, you know, that is an intent in our view to -- to punish --
QUESTION: Would it affect --
MR. THOMPSON: -- solely based upon a prior conviction.
QUESTION: Your claim is an ex post facto claim, a retroactivity claim. Suppose this scheme, the Alaska scheme, did allow people -- like the parties here -- to say, I'm no longer dangerous. Here's the documentation of that. Take me off the list. Would you say, nonetheless, it's still punitive? Are you saying that even if someone made no showing at all of lack of dangerousness, this is -- it would be ex post facto and therefore must fall?
MR. THOMPSON: If I -- Justice Ginsburg --
QUESTION: You -- you are asserting that Doe I and II are people who are no longer dangerous.
MR. THOMPSON: Yes.
QUESTION: But I'm asking you about the people in this large category who are still dangerous, or at least have made no showing that they are not dangerous. You would have the same ex post facto argument with respect to those people? Or does it depend, to some extent, on the ability to show that you are not dangerous?
MR. THOMPSON: First of all, I think we would -- we would take the position that in the absence of any criteria of actual present dangerousness demonstrates that -- that the legislature is aimed at the prior conviction and tacking on certain responsibilities to the prior conviction as opposed to really trying to fit the goal here of protecting the public from dangerous people.
QUESTION: But if the legislature says we don't want this to be punitive, therefore we will give everyone who was a convicted sex offender an opportunity to show that they're no longer dangerous, and then there will be a determination made, yes, you are, no, you're not, would you still be making the ex post facto argument for the people who have not shown they're no longer dangerous?
MR. THOMPSON: I think it would certainly be a closer call, and --
QUESTION: Why would it be a --
MR. THOMPSON: -- and my clients would certainly invite that hearing.
QUESTION: Why would it be a closer call? Why would it be a closer call? Is everything that is bad regulation punishment? I mean, all that would show -- all you're claiming is that some people who are not dangerous are -- are wrongly covered by this regulatory measure. That still doesn't prove that the regulatory measure is punitive. It just shows that it's stupid.
QUESTION: That doesn't make it violate the Ex Post Facto Clause. Every regulatory measure that goes too far is -- is not criminal punishment.
MR. THOMPSON: It is if it looks just like probation and has the same consequences as probation because probation is historically --
QUESTION: That's -- that's -- the question Justice Ginsburg started with is every time -- you just replied to Justice Scalia -- and what I hear are words that seem to apply with equal force to a perfectly-tailored statute that would catch only the most dangerous sex offenders who everyone agrees are virtually uncontrollable and might repeat their offense many, many times.
See, if it applies -- if the argument -- the question people are asking you -- I'm simply repeating it -- is, on your argument why isn't that just as much an ex post facto law? What has it got to do with the matter that it's overly broad, et cetera, which sounds to me like a substantive due process argument, not an ex post facto argument? That's the same question. But I would like you to focus right on it.
MR. THOMPSON: Well, I apparently have not been doing a very good job of it, but I'll try.
When we look to whether or not the statute imposes a punishment, I think it's important that we look to whether or not it -- it's -- fits with the umbrella things which have historically considered to be punishment. And that's one of our starting points, and that's why I keep going back to the concept of probation and parole because historically there's no dispute that probation is a depravation of liberty. Not -- it's not like going to jail, but it's a depravation of liberty. And -- and it's been considered as punishment, and that's what this thing does to people.
Now, if it was a perfectly-tailored -- such that it could weed out the dangerous from the non-dangerous -- well, we would invite that because my clients wouldn't be here today. My client has been determined, you know, to be not dangerous by a superior court family judge.
But would it still be punishment? I think we'd have to look at the -- a little bit closer at it. But, you know, if there's a closer nexus between the public purpose and there -- there is a weeding out, maybe it wouldn't be punishment because maybe it's -- it's escapable, it -- it's --
QUESTION: But then -- then you might --
MR. THOMPSON: -- at that point, it's not regulating him for life.
QUESTION: Well, at that point at least there would be -- I -- I assume your -- your point would be that there -- there is at least a -- a credible basis to say that if it covers only those who are affirmatively shown to be dangerous, the object is simply to apprise the public to who is dangerous, and that doesn't sound very punitive. But if there is no attempt to weed out the dangerous from the non-dangerous, then the claim that the object is simply to apprise the public of who is dangerous is not so credible. I mean, isn't -- isn't --
MR. THOMPSON: That is my point.
QUESTION: -- that one of your points?
QUESTION: If that's your point, then how do you respond to their argument which is that that's just too tough to do? We don't know enough about it. It -- it would invite endless hearings. It would be impossible to administer this statute. I'm not making the argument. I'm repeating it --
MR. THOMPSON: Right.
QUESTION: -- for you to respond to.
MR. THOMPSON: I guess that would make the -- the due process hearing or the -- the hearing that is established in -- in Hendricks, and the hearing that's established in Salerno futile as well. I mean, judges are called upon every day to make determinations as to whether or not people are presently dangerous. They do it every day in the context of evaluating the sentencing criteria in the State of Alaska. It's called the Chaney Criteria. They have to look to whether or not someone poses a risk to the community. That's what they have to do in --
QUESTION: How many Megan's Laws have that regime? I -- I understand that some of them do. Some of them are like Alaska. They say this is based solely on your past conviction. Others say you have an opportunity to show that you're no longer dangerous. What -- in -- in the range of Megan's Laws that all the States have, how many treat this as something you can get out of by showing you're not dangerous?
MR. THOMPSON: You know, I don't have a -- a number for you. I can't tell you if it's 23 States or not. I don't -- I'm sorry. I don't --
QUESTION: What's wrong about --
MR. THOMPSON: I don't know that.
QUESTION: What's wrong about warning the public about who may be dangerous? You -- you seem to say that it's only -- it's only okay if the State warns the public about who is dangerous. What's wrong about warning the public about who may be dangerous? Let the public make -- you know, the later -- later determination.
MR. THOMPSON: I guess we get down to this who determines who they're -- who may be dangerous or not. I mean, what -- what's the criteria for that?
QUESTION: What is irrational or unconstitutional about warning the public about a category of people who may be dangerous as to whom -- as the entire category of whom, there's more likely to be danger than -- than with respect to other people? Where is it written that you can only warn the public about those whom you have -- are sure are dangerous?
MR. THOMPSON: Part of the problem with the statute, it's not just a warning of the public. I mean, it -- it's -- there are really various components. It's not just a notification statute. I mean, you know, the public right now has access to -- through another statute that we have -- to offender information. All they've got to do is request. And this is an unnecessary statute in -- in one sense. Does it broadcast it on the Internet? No. But the same information is available, and it's information that's available not just going to a courthouse, but you can actually request the State for that information. And -- and for some people, information may be limited. There are some restrictions.
QUESTION: I'm -- I'm not sure if it helps you or hurts you. It -- it indicates that -- that the most distressing and damaging fact that you have -- that you have the conviction is available to the public anyway. And this is just a regulatory scheme to -- to make that information more clear as to how many people are in the community have suffered that conviction.
MR. THOMPSON: What I was going to say is that the information as to serious offenses that are beyond 10 years is limited. There's some sense of limitation, some sense of it's been a long time. So that information is limited to those people that have a need to know, like for example, the day care providers and the teachers and -- and schools who want to know --
QUESTION: Well, but I take it under the registration form we're talking about, that the date of the conviction is there, and the -- the citizen can make up his or her own mind as to whether the conviction was so long ago that they're no longer worried about it.
MR. THOMPSON: They really don't have the right kind of information to make that decision. I mean, what they have is only the conviction --
QUESTION: You want -- you want more information on this form?
MR. THOMPSON: Absolutely not.
MR. THOMPSON: The -- you know, I don't. I don't want more information.
And the -- the tribunal that should be making the determination of dangerousness really ought to be in a thoughtful, rational process in front of a -- of a judge.
QUESTION: What -- what if the State simply decided we're going to put on the Internet, the same way that Alaska does here, the names of all the people who had criminal convictions of any sort without any more information in -- in the last 5 years? Now, if they applied that to people who were convicted after they passed it, would that be ex post facto?
MR. THOMPSON: I don't know that it would. It would probably have the same stigmatizing effect. I mean, I just -- I want to share with you the State has already done that in the State of Alaska. You can get information as to anyone in the State of Alaska by a click of a mouse by going on the Internet, if their convictions were in the State of Alaska. That information is already available.
QUESTION: If it had the same stigmatizing effect, why would your answer be different? Why -- why would it not be ex post facto in that case, whereas it is in this? I'm not sure what line you're drawing.
MR. THOMPSON: Well, the stigmatizing effect here is that these people are being currently labeled as -- as sex offenders.
QUESTION: No. I -- I realize that, but you said in answer to the Chief Justice's question that there would be the same -- in your judgment, there would be the same stigmatizing effect if they put every criminal conviction on -- on the Internet. And if -- if the stigmatizing effect would be the same and the information would be just as readily available, why would your answer be different, that that would not be ex post facto whereas this is? That would not be punitive. This is punitive.
MR. THOMPSON: Well, perhaps it would, but you know, our analysis of this ex post facto argument is really a composite of a variety of components of the statute and not simply the public notification provision.
QUESTION: Well, what --
MR. THOMPSON: It's certainly an important part.
QUESTION: You're tapping everything, the register and --
MR. THOMPSON: Yes.
QUESTION: So you would say even just the requirement that they register, even if it's just circulated to law enforcement people, that's impermissibly retroactive as well.
So there can be -- is there any scheme for keeping track of ex-offenders that would pass the ex post facto test in your judgment, or is it just they've served their time, they've done whatever, parole is given to them, and that's it?
MR. THOMPSON: You know, if -- if the requirements of the individual subject to the registration requirements alone were not as onerous as here where they have to report on every 90 days all kinds of personal information, and if they don't, then they're going to be -- go -- go to jail, it may be a closer call. I mean, there was the -- the history of the felony registrations, but they've never really been approved by this Court as somehow being a proper regulatory measure.
QUESTION: On the other hand, I don't know of any precedent -- perhaps you can tell us if there is -- from this Court saying that a measure with a declared regulatory purpose is, nonetheless, impermissibly retroactive. I don't know of any case that so holds.
MR. THOMPSON: Nothing is jumping out at me either.
QUESTION: Let me ask you to comment on -- on one thing --
MR. THOMPSON: But these are unique statutes.
QUESTION: I'm sorry. One -- one thing that makes it more difficult perhaps than it might be to see your side of the argument -- go back to the Chief Justice's question. What if they put every criminal conviction on the Internet?
Well, there's one difference between the situation that would obtain then and the situation that -- that you're objecting to here. That is, that there is not the same high recidivism rate for crimes generally that there is, apparently undisputedly, for sex crimes in the State of Alaska. And therefore, when you earlier made the argument that there is something very -- something less than credible in the State's claim that it's merely trying to inform the public when, in fact, it makes no differentiation between current dangerousness and un-current dangerousness, the answer is there is -- or an answer is -- there is a very high recidivism rate, and that high recidivism rate does support the claim that there is something that -- that it is credible to say that by publishing this information, we are simply trying to inform people of a probability of dangerousness, leaving them to do what they want.
What is -- is there any -- do you have any response to this claim that the high recidivism rate itself supports the argument that, in fact, this is nothing but a safety information kind of measure, whereas broadcasting all criminal convictions would not be justified as having a good fit between the object and what the State was doing? Do you have any response to that?
MR. THOMPSON: I certainly don't profess to be an expert on the statistical recidivist rates. I think that is --
QUESTION: You don't dispute the State's recidivism figure, do you?
MR. THOMPSON: Well, actually vis-a-vis the brief that was submitted by Massachusetts as an amici in this, sets forth a very different pattern of recidivist rates. I mean, when we say recidivist rates, are we talking about repeat sex offenses? Are we talking about repeated crimes? I mean, there are all different ways in which --
QUESTION: They're making specific -- they're making specific claims. They -- they set out specific percentages with respect to Alaska. Are you disputing those figures or not?
MR. THOMPSON: We do.
QUESTION: You do. All right.
MR. THOMPSON: We do, but I don't think we did it directly in our brief, but I think other -- other briefs --
QUESTION: That's -- that's the trouble. Yes.
MR. THOMPSON: -- do.
You know, even if we accept --
QUESTION: Do you take into account that the degree of harm, if you make a mistake? That is, suppose somebody is a pickpocket and you have a list and say, pickpockets have to register, the same thing as here. So if you make a mistake about a pickpocket, somebody is out of some change. If you make a mistake here about a person's dangerousness, the consequences could be very grave.
MR. THOMPSON: And there's a solution to that, and the solution is have -- is to look to the individualized determination of the person's present dangerousness. And, you know, in the McKune case, the --
QUESTION: Would it be all right to have the person report every 90 days to have a determination of present dangerousness?
MR. THOMPSON: It certainly wouldn't be necessary for John Doe I. He's already had a determination that he's not dangerous by a court. I don't know why you'd have to continue to redo that. I mean, the idea is you get progressively --
QUESTION: I'm interested in the Chief Justice's hypothetical.
MR. THOMPSON: No, it wouldn't be all right.
QUESTION: It wouldn't be all right?
MR. THOMPSON: No, not every 90 days. That's -- that's awfully burdensome to require someone not just to come into the police station or fill out a written form, but to require someone -- as a direct consequence of a prior conviction, to require someone to come and -- and be subject every 90 days to a judicial scrutiny as to whether or not you're still dangerous, that seems to be a pretty big disability.
QUESTION: It is a way out.
MR. THOMPSON: It is a way out.
QUESTION: And one of your complaints is this system provides no way out.
MR. THOMPSON: That's absolutely correct. It is a way out.
The Alaska Sex Offender Registration Act really is nothing other than tacking on -- for my clients -- a lifetime of probation, a lifetime of community supervision, having to report to the police -- my time is up.
QUESTION: Thank you, Mr. Thompson.
Mr. Roberts, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF JOHN G. ROBERTS, JR.
ON BEHALF OF THE PETITIONERS
MR. ROBERTS: Thank you, Mr. Chief Justice.
I think it is very important to place the various points that have been touched on this morning in the proper legal framework.
The question, Justice Kennedy, is not whether it's burdensome to require someone to fill out a form and verify it. The question is, is that so punitive that you don't believe the legislature when it says that we're doing this to prevent future harm?
The question, Justice Ginsburg, is not whether it might be a better system if it included other information, or whether that would be too burdensome for the State. The question is, does the failure to put on ameliorative information convince you that the legislature was simply not telling the truth when it said we're doing this to prevent future harm?
And the question is not whether you should have an individualized determination or a group determination. It is, is the group determination so irrational that you think the legislature was not really interested in preventing future harm, it was just doing this to punish? In fact, as Justice Ginsburg pointed out, this Court has never found a law with a civil regulatory purpose to violate the Ex Post Facto Clause.
QUESTION: Is the effects test used to impeach the finding that the legislature had a regulatory intent?
MR. ROBERTS: I think that is --
QUESTION: I -- I thought that it was an additional step that you had to take if you -- even if you find the legislature had the -- the permitted intent.
MR. ROBERTS: I think it only makes sense if you view it as impeaching the intent because, as Chief Justice Warren pointed out in Trop v. Dulles, the evident purpose is controlling because the same sanction can be civil or criminal. $10,000 civil penalty is not criminal. A $10,000 fine is. You don't look at the perspective of the individual because --
QUESTION: So long as the legislature has a pure intent, it can have as burdensome a regulation as it wants based on previous criminal convictions?
MR. ROBERTS: I think if the regulation is so burdensome that it causes you to doubt the intent, then you do have a problem, but that is the purpose.
MR. ROBERTS: But again, with respect to both the Ex Post Facto Clause and the Due Process Clause, the question is whether there's a rational connection between the sanction and the legislative purpose.
Now, if it is too extreme, it may cause you to doubt that connection. For example, it may be -- the legislature may say we think safe crackers present a risk of recidivism, so we're going to cut off their hands. There may be a rational connection there, but it's too excessive given the purpose.
There's no way in which this law can be regarded as too excessive. It simply makes available information that is already a matter of public record, and publicly available because criminal trials under our system have to be public.
Thank you, Your Honor.
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Roberts.
The case is submitted.
(Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)