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June 16, 2014

Second Circuit rejects array of challenges to lengthy extension of sex offender registration requirement

For a number of years, sex offenders consistently lost in state and federal courts when challenging various sex offender registration requirements and other restrictions on various grounds.  In recent years, however, it seems at least a few registered sex offenders are having at least a little success with court challenges to new sex offender registration requirements that seem especially punitive or onerous.  But a Second Circuit panel ruling today in Doe v. Cuomo, No. 12-4288 (2d Cir. June 16, 2014) (available here), provides a useful reminder of the uphill battle registered sex offenders face in court. Here is how the opinion starts: 

John Doe appeals from the judgment of the United States District Court for the Eastern District of New York (Amon, C.J.) granting summary judgment in favor of the Governor of the State of New York and the Acting Commissioner of the State of New York Division of Criminal Justice Services on Doe’s as-applied constitutional challenges to the enforcement of certain amendments to the New York State Sex Offender Registration Act. The amendments we are asked to review were enacted after Doe pleaded guilty to misdemeanor attempted possession of a sexual performance by a child, as a result of which he was classified as a level-one sex offender required to register under SORA. The amendments extended the registration requirement for level-one sex offenders from ten years to a minimum of twenty years and also eliminated the ability of level-one sex offenders to petition for relief from registration.  Doe argues, among other things, that requiring him to comply with these post-plea amendments violates the Ex Post Facto Clause and the Fourth Amendment, and deprives him of due process and equal protection under the Fourteenth Amendment, in violation of 42 U.S.C. § 1983.  We disagree and affirm the judgment of the District Court.

Notably, the defendant Doe in this case seems reasonably sympathetic for a registered sex offender: his offense was a misdemeanor charge stemming from possessing a few CP images back in 1999, and he fully complied with all registration requirements for a decade.  But, though the defendant presented an array of constitutional claims to argue he should not now be subject to a new extended registration requirement, the Second Circuit said he was Doe out of luck.

June 16, 2014 at 12:55 PM | Permalink


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My god...what a HORRIBLE decision, not just the result but in the way the justices supposedly reasoned their opinions! I cannot believe that NO valid, documentable studies were presented with regard to the low recidivism danger of registrants, which leads me to believe the case was not argued competently by the litigants for the registrant, but the judges were biased going in on this one.

This case somehow got by me, but now I will have to go back and see if I can get the case arguments, either by document, or preferably an audio recording. The bottom line: If Janice Bellucci of CA RSOL were arguing this case, I suspect that many of the reasons given by the judges would not have been cut and dried against the registrant. Truly another blow to Constitutional adherence.

Posted by: Eric Knight | Jun 16, 2014 1:26:13 PM

Eric Knight:

Please continue to use your experience and knowledge to expose the lying government apologists who continue to speak out their backsides and use extremely dishonest and extraordinary mental gymnastics to find these types of laws Constitutional. They are nothing more than an expelling of an unpleasant turd from government idiots in black robes which we are then to examine and admire. Growing disrespect for the government is the subsequent result for those who can walk and chew gum.

What cowards, and the legal "profession" which eats it up!

Posted by: albeed | Jun 16, 2014 3:25:51 PM

@ Eric:

I agree, it seems like a poorly reasoned decision and perhaps -- as you suggest -- that is reflective of perhaps lackluster lawyering on the part of the plaintiff.

What strikes me about these decisions are court's unwillingness to examine the appropriateness of relying on prior precedent dealing with SORA laws when the laws themselves have been rapidly changing. When Smith was decided SORA laws were decidedly less onerous and punitive -- and now sex offender registration carries with it collateral consequences that are much more significant than they were when Smith was before the Court.

And I fully understand that stare decisis is a necessary doctrine, but we've reached a point where the reasoning in Smith and cases like it no longer apply to modern registration schemes. In short, it is disappointing to see the court engage in such hollow reasoning.

Posted by: Guy Hamilton-Smith | Jun 16, 2014 3:49:34 PM

This sudden extension of the duration and severety of the registration requirement for some registrants may one day cause some registrants to go off the deep end and lash out at those who carry out these laws. It would be horrifying to read one day about a disgruntled registrant venting his or her frustration against registry officials or against other law enforcement personnel in a violent and deadly way. Less than a week ago in Las Vegas, NV, we learned of a deranged married couple who killed two police officers and draping their bodies with the flag of some half-crazed extremist group before turning their weapons on themselves.

Police and other law enforcement personnel have a dangerous enough job without having to perform petty duties that serve only to violently provoke the very offenders that registration laws claim to protect us from. Provoking a former sex offender into hostility toward authority only rubs salt into old wounds. Many police officers question the effectiveness and safety of these sex offender registration, residency restriction, and civil commitment laws. Most police feel they would be more effective in stopping "real-time" crimes instead of in waisting valuable time on processing persons who have not only completed their sentences but who are currently NOT committing any new crimes.

Save and protect our valuable law enforcement resources by going only after real criminals instead of harrassing those who have completed their sentences and who are not currently endangering anybody!

Posted by: william r. delzell | Jun 16, 2014 6:47:15 PM

Well, yes, this clearly is a bad decision -- based not on reason but on opinions designed to lie.

Nonetheless, Eric Knight, on your first comment, you must understand, the court was not deciding the questions you raise. The court is limited to deciding the question before it. And the lawyers for the parties in the case are similarly limited in what they can argue, it must be limited to that question. The question here was not whether someone who has shown rehabilitation should have to continue registration, but whether harsher collateral disabilities can be added after a plea bargain, and one in which the defendant was told he would not be subject to more disabilities.

Whether registrants have a high recidivism rate or not and whether the registrant is rehabilitated or not was not pertinent to this question. But that might make a good question for another case -- although in California at least, the courts have already ruled that it is not for them to decide that but for the legislature.

Posted by: Mark | Jun 17, 2014 12:50:21 AM

In Doe, the restrictions placed on that very un-sympathetic petitioner were light years less onerous than what has been implemented since that case in 2003. However, I don't believe that lower court judges (with only a few exceptions) would be willing to rule against SCOTUS in the Smith v. Doe decision.

To really get a second bite at that apple (where the apple has morphed into something completely different), and get a ruling that SORNA conditions as-applied have become punitive in effect would require SCOTUS to grant cert in a case that directly addresses these issues again. Kebodeaux, Paroline, and other cases of their nature nibble around the edges, but SCOTUS hasn't taken on a direct Ex Post Facto assault to SORNA cases since.

Posted by: Eric | Jun 17, 2014 9:57:08 AM

This is yet another call to war. I trust that all families that are listed on these criminal regimes' Registries are heeding the call.

The Registries are not acceptable and any person harassed by them SHOULD NOT LET A SINGLE DAY SLIP BY without delivering appropriate retaliation.

First and foremost, a listed person should ensure that the SORs do nothing useful. A listed person should live a normal life and do anything normally. If a listed person lives in any moderately sized city it is trivial to completely ignore and never see ANYONE who knows that you are Registered and live a very full social life with only people who do not know. I will spend this entire summer around families that have no idea that I am Registered. It is the moral thing to do.

The other key thing is to never allow employees, especially law enforcement employees, of the criminal regimes to interact with you. I give the criminal regime the information that I am forced at the point of a gun to give them and then I allow no more. I will not speak to them. I will do anything I legally can to undermine them.

The SORs bring daily contempt and disrespect for government and law enforcement. People who support nanny big government are so arrogant that they want to believe that doesn't matter. It doesn't matter in Registry Fantasy Land, but it does in reality.

Posted by: FRegistryTerrorists | Jun 19, 2014 12:43:08 PM

It's not new news, challenges have repeatedly failed, however 3 supreme court justices did agree with the plaintiff's reasoning, and 2 are still
on the court. I don't blame the courts entirely because if they rule in a favor the SC will immediately reverse the ruling.

Given the severity of many other crimes with high recidivism rates, I don't see how the registry is useful or warrants usefulness, of course
the SC should use that analogy not to "second guess state legislatures" but to force states to justify whey they need them as a "quarantine policy", which is the absurd because the folks don't carry disease, have lower recidivism rates, and are mentally insane for the most part, and new fines and talk of mandatory community service for those who can't afford to pay seems to violate the 13th amendment,

Everybody believes that punishment should fit the crime and that folks should not spent a lot of time in prison for non-violent offenses.

The fact that states don't register violent criminals even private registrations (not visible to public) for assault and gang crimes, arson, drug crimes related to trafficking, robbery,murder,etc should give pause, one possible way is to make public registries be considered "punishment", that may make a ruling less "controversial".

Posted by: Kris | Jun 19, 2014 1:22:34 PM

A plea agreement is a contract, (Ohio Supreme Court), I wonder if the lawyers were aware of that.

Posted by: freedomwriter | Feb 27, 2015 12:05:20 AM

Send me more info on challenges to the SORA laws pursuant to the 13 th Amendment. Thanks.

Posted by: Randell Owens | Nov 20, 2015 11:52:26 PM

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