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May 7, 2012

Stressing AEDPA deference, split Ninth Circuit upholds 3-strikes sentence for failing to register

Late Friday, the Ninth Circuit issued a notable habeas opinion in Crosby v. Schwartz, No. 10-17726 (9th Cir. May 4, 2012) (available here), which rejects a defendant's Eighth Amendment attack on his three-strikes prison sentence of 26-years-to-life based on his failure to register as a sex offender.  Here is an excerpt from the majority opinion:

Taken together, these three cases [involving similar Eighth Amendment claims] emphasize a consistent principle found in the sex offender registration context — whether the crime is a de minimis crime for which a life sentence is disproportionate is related to how closely the violation is tied to helping achieve the purposes of the sex offender registration statute. See Gonzalez, 551 F.3d at 884-85; Carmony, 127 Cal. App. 4th at 1078-79; Meeks, 123 Cal. App. 4th at 708-10. Thus, the state court was not objectively unreasonable when it concluded that Crosby’s failure to register after he moved was not a mere technical offense. Crosby was no longer living at his last registered address at the time of his arrest, and his failure to register impeded the police’s ability to find him for surveillance.  The state court’s decision is even more reasonable because, unlike the defendant in Carmony, there was evidence that Crosby was actively attempting to evade his obligation to register through the theft and falsifying of stolen identification cards.

Additionally, the California Court of Appeal found that Crosby’s prior convictions were serious and violent crimes.  It noted that during the incident resulting in the rape and forcible copulation convictions, Crosby engaged in multiple acts of violence and threatened the life of the victim.  It was further noted that during the prior robbery conviction, Crosby and an accomplice robbed a restaurant at gunpoint.  The use of violence in Crosby’s prior convictions distinguishes his case from those in which the inference of disproportionality was found to be met by the court....

Crosby’s challenge arises under AEDPA, and we must give the appropriate deference to California Court of Appeal’s decision.  In light of the various cases that have dealt precisely with sex offender registration convictions under the gross disproportionality principle, it was not an unreasonable application of clearly established federal law for the California Court of Appeal to affirm Crosby’s sentence under the Eighth Amendment.

An intriguing partial dissent by Judge Noonan expresses deep concern about arguments from California's lawyers that he sees as advancing the "remarkable contention ... that there is no limit to the punishment that the state may prescribe for any recidivist." He goes on to lament the implications of this argument with a notable classic reference:

In California’s sweeping gloss, proportionality in sentencing a recidivist has been eliminated.  The repeat felon, however technical his felony, is to be “incapacitated.”  With a severity worthy of Sparta, the state of California will bring to book those who thrice fall afoul of any felony provision in its legislation.

I do not believe that the humane restraint of the Eighth Amendment has been so removed from its role in measuring the proportion of the penalty to the offense.

May 7, 2012 at 09:40 AM | Permalink


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Typical nazi decison of our current crop of Nazi Retards in Robes!

Posted by: rodsmith | May 7, 2012 11:31:56 AM

Lucky for him registration isn't punishment.

Posted by: Anon | May 7, 2012 11:34:11 AM

   [pyoo-ni-tiv] Show IPA
serving for, concerned with, or inflicting punishment: punitive laws; punitive action.
Also, pu·ni·to·ry  [pyoo-ni-tawr-ee, -tohr-ee] Show IPA.

1615–25; < Medieval Latin pūnītīvus of punishment, equivalent to Latin pūnīt ( us ) (past participle of pūnīre to punish) + -īvus -ive

Posted by: Anon | May 7, 2012 11:37:04 AM

The Nazi Census: Identification and Control in the Third Reich

"There can be few complaints about The Nazi Census as a history of the Nazi period. It is regularly cited in published works for facts about dates of registration programs and change in citizenship policy. As part of Aly's attempt to augment the complicity of silence with the complicity of science, it is also an important work in an evolving historiography on Nazi world-making and -unmaking. The book is also fascinating as a revelation of the recent pedigree of many everyday practices of the state." H-Net Reviews in the Humanities and Social Sciences "The Nazi Census is a book of great historical originality and considerable topical urgency. The authors provide a chilling historical perspective to contemporary preoccupations with the logics and limits of identity registration and documentation. Unrivalled as a political history of population statistics and identity documentation in Nazi Germany, the book is also not afraid of controversy. Not everyone will accept the authors' grim message about the inherently dehumanizing effects of the statistical process, but their readable and quirkily original book makes a powerful case for seeing data collection as a threat to individual safety rather than a solution to problems of security in the modern world." --Jane Caplan, Marjorie Walter Goodhart Professor of European History, Bryn Mawr College and Fellow of St Antony's College, Oxford "Originally published in 1984, this controversial study challenges census-taking by examining how the Hitlerian regime pioneered both the concepts and the processes of modern statistics-gathering about populations. No reader of this fascinating study can fail to be moved by the coldly bureaucratic thoroughness and mechanical efficiency with which the Nazis went about their business of targeting Jews, Gypsies, and other socially or biologically unwanted segments of German society." --Michael R. Marrus, Chancellor Rose and Ray Wolfe Professor of Holocaust Studies, University of Toronto

Posted by: Anon2 | May 7, 2012 11:49:56 AM

The article notes:

"...Crosby was actively attempting to evade his obligation to register through the theft and falsifying of stolen identification cards.

"Additionally, the California Court of Appeal found that Crosby’s prior convictions were serious and violent crimes. It noted that during the incident resulting in the rape and forcible copulation convictions, Crosby engaged in multiple acts of violence and threatened the life of the victim. It was further noted that during the prior robbery conviction, Crosby and an accomplice robbed a restaurant at gunpoint."

The striking question about this case is why this guy was ever out to begin with. Just how careless do we propose to be with the lives and well-being of future victims?

Posted by: Bill Otis | May 7, 2012 12:19:57 PM

This is funny stuff. I think the real question is "What harm was caused by this person 'evading' Registration?" And the answer is, "Absolutely none." Further, since he was not Registered, he almost certainly was less dangerous than he would have been if he was Registered. If he was Registered, it is quite possible he would have murdered someone.

Good thing he had committed a sex crime though because otherwise no one would have cared that he was not in jail. They also would not have been able to convict him of a felony for something that doesn't matter. This does seem to be clear proof to me that we definitely need thousands more felony laws so that we can get people like this convicted of something. At the very least, we need many, many more types of Registries so that we can have all people convicted of crimes Registered. Then we won't have to rely on people like this committing sex crimes. It's common sense and it's for the children.

What I really don't understand is why people who have 2 "strikes" stay in that P.O.S. California. I would do everything possible to get away from their control so there wouldn't even be a chance that I would accidentally break one of their "laws", let alone any of their idiotic SEX OFFENDER witch hunt cr*p.

Posted by: FRegistryTerrorists | May 7, 2012 2:05:57 PM

In a number of other states, this guy's registration "offense" would have been a misdemeanor.

As alluded to in a post above, the courts have treated registration requirements as regulatory rather than punitive in order to avoid ex post facto problems.

Those who seek to justify sentences like this eschew reason and the law. Instead, they stomp their feet and holler about the offenses for which the offender has already served his time.

Posted by: Calif. Capital Defense Counsel | May 7, 2012 2:47:54 PM

CCDC, I don't have to justify it. The Ninth Circuit said so. That's good enough for me.

Let's see if all those who whine about me badmouthing judges will attack CCDC here--he's calling esteemed judges unreasonable. Quelle horreur.

Posted by: federalist | May 7, 2012 3:34:14 PM

I think the first comment is a tad over the top. It does not just say judges are "unreasonable" in certain cases [CCDC speaks of "courts" in the comment, so seems to think judges in various cases are "reasonable"] but uses over the top language. I'm sorry if this is "whining," but F. isn't talking about me, probably. I assumed that once before and was schooled on the point.

Posted by: Joe | May 7, 2012 8:13:30 PM

As I've said many times, I simply don't see how Failure to Register as a Sex Offender is a substantive crime, because an essential element of the crime is the existence of a prior conviction. California Cap Def counsel correctly states, in some places courts consider the statute to be regulatory. If that is the case, then its not a crime, which means it can't trigger the three strike law.

One need look no further than the Apprendi Rule for support that a prior conviction is not a fact which has to be proven to a jury beyond a reasonable doubt.

In my view, failure to register can be punished as a failure to abide by a condition of a prior conviction for a sex offense, so it is more like contempt than a new, substantive crime, in my humble opinion.

Further, it is not persuasive to me for someone to say
"but what about Possession of Firearm by a Felon" which also has a prior conviction as an element. My response is that it is also not a crime either, but it simply describes a scenario in which a person can be punished because he did something he is not supposed to do after being convicted of a crime, possess a gun.

I started practicing law long before these recidivist offenses became commonplace, so this doesn't seem like such a hard concept to me. It is a straight up violation of double jeopardy to use a prior conviction as an element of a crime.

Posted by: bruce cunningham | May 7, 2012 9:04:13 PM

The real answer to all this stupidity is that people who are listed on these Registries (i.e. Registered Citizens) should have zero obligations at all to do anything, ever. If the criminal governments and their supporters want their nanny big government Registries, then it should be completely up to them to gather whatever information they want and publish it however they want to "inform" the dependent public. People who are listed on these Registries should have no obligation to do anything - not provide any of the information, update it, live here or there, stay away from this or that, nothing. That would also be a huge step toward helping to make the Registries less immoral. If it worked like that, Registered Citizens would never be *able* to break any law or be convicted of anything.

Think about it. How many times have we heard the terrorists whining that the Registries suck because they have to depend on "SEX OFFENDERS" providing the information themselves? Some of the terrorists have even said the information is provided "on the honor system". Further, the criminal governments have to "verify" all the information that is given to them, correct? Then why the H don't they just collect it themselves? Or are the great protectors simply not capable of such a difficult task? If they whine about it being too hard for them, they can just write themselves some special laws that make it easier.

One of the most immoral and infuriating aspects of the Registries is that the citizens listed on them have to live in constant fear of being arrested and having their freedom stolen from them because of some moronic, worse-than-worthless "law" that has been enacted by some criminal legislators. Consequently, people who are Registered should never accept that condition without retaliation.

In the state where I live, our criminal legislators passed some Banishment laws a long while back. Then they started forcing people to leave homes that they owned because they were suddenly "too close" to swimming pools and other moronic BS like that. One such person was a man named George Edenfield who had been living in his home without incident for over a decade. He was arrested, later tried, convicted, and sentenced to some rather lengthy probation term (think it was 10 years). Just a few days after that, he retaliated and murdered a 6 year old boy. He is not the only person who did that, including other murders.

I am a Registered Citizen and I retaliate every time I perceive the Registries cost me *anything*. I retaliate for every second and every penny they cost me. Doesn't matter if it is a two minute phone call or a million dollar contract. I have found many ways to do that completely legally. I try to follow all the "laws" of all the criminal governments but it's not easy. It takes time to learn and understand the laws and then even more time to retaliate for the cost of that time.

So, it would not surprise me if I would accidentally run afoul of some law some day. To me, it is not acceptable to live like that. I retaliate just for that as well. And believe me, I think getting arrested is a very big deal. I won't accept that even one time. Don't think for a second that if that happens, I will sit back and think I deserved it or that I will let it slide. I have come to understand myself very well during the past decade plus of being Registered. I have learned that I am someone who can and will attack back. I have said it many times that this war is one that the criminal governments have already lost. They are just too stupid to know it and/or too arrogant to care.

Posted by: FRegistryTerrorists | May 8, 2012 1:54:09 PM

i'm with you FT.

If anyone was stupid enough to show up at my home that i have owned for decades and informe me they had passed a new law and now i had x days to get out or go to jail.

Well there would almost immediately after be a dead govt flunky on my porch and i'd be on the way to whatever retard govt agent had been stupid enough to put thier name at the bottom of the order!

Posted by: rodsmith | May 8, 2012 2:03:20 PM

My reaction here is the same as Bill Otis. Its rare that i agree with him but it happens :)

maybe that means i'm wrong :P

erika :)

Posted by: Erika | May 10, 2012 11:46:09 AM

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