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The Tipping Point: Are We There Yet?

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  1. THE TIPPING POINT: Are We There Yet? june 2019

  2. What is a Tipping Point? “The tipping point is that magic moment when an idea, trend, or social behavior crosses a threshold, tips, and spreads like wildfire…” • Author Malcolm Gladwell • “The Tipping Point”

  3. Where is our Tipping Point? • It is not a location on a map • There are no directions, formula, recipe to “discover” it • In fact, it has never been seen

  4. Is It a Mythical Beast?

  5. What does Tipping Point look like?

  6. Or does it look like this? • There are no public websites listing people convicted of a sex offense • No one required to wear GPS device • Everyone able to access computers • Social media available to all

  7. Or does it look like this? (cont’d) • Registrants have a safe place to live • No “compliance checks” • Registrants can be active members of their family • Attend family gatherings • Participate in school activities

  8. Or does it look like this? (cont’d) • Registrants have good jobs • Paid according to skills, experience • Without fear of retaliation • From public • From co-workers • Registrants can join the military

  9. Or does it look like this? (cont’d) • Registrants may lawfully visit public places • Libraries and museums • Beaches and parks • Movie theaters and bowling alleys • Fast-food restaurants

  10. Or does it look like this? (cont’d) • Reparations paid to all registrants • Extra funding for those with “sex offender” on driver’s license • Children and spouses of registrants provided free college education or vocational training

  11. Where are we today? • State registries continue to grow • More than 900,000 individuals • Broad scope includes those convicted of non-violent, non-contact offenses - yet all treated equally • Many registrants unemployed, homeless • Some registrants targeted by vigilantes • Registry affects family members, too!

  12. Homeless Registrants

  13. How do we find the Tipping Point? • Education • Families and friends • Public, elected officials, policy makers

  14. How do we find the Tipping Point? • Legislation • Oppose bills that harm • Letters, phone calls, emails • Participate in hearings • Support bills that help

  15. How do we find the Tipping Point? • Litigation • Challenge existing laws • Identify “low hanging fruit” • Establish credibility • Move up the tree to “higher fruit” • Most cases settle

  16. What’s in our way? • U S Supreme Court – Smith v. Doe - 2003 • Registration is administrative requirement, not punishment – like application for Price Club • Annual registration by mail • No presence or residency restrictions • No affirmative disability or restraint • Notification system “passive” • Doesn’t resemble shaming

  17. What’s in our way? (cont’d) • Based upon myth re: re-offense • “Frightening and high” – up to 80 percent • Based on Psychology Today article • Ex Post Facto clause does not apply • New laws can be applied retroactively! • Every level of government (federal, state, local) - residency restrictions, presence restrictions

  18. How do we know we will get there? • U S Supreme Court – Plessy v. Ferguson – 1896 • Separate but equal education acceptable • U S Supreme Court – Brown v. Board of Education – 1954 • Separate but Equal unconstitutional • De Jure Discrimination

  19. Alabama - 1954

  20. Evidence that we are on our way • Michigan laws unconstitutional • 6th Circuit Court of Appeals - Does v. Snyder – Aug. 2016, cert. denied. • Laws violate federal, state ex post facto clauses • Presence and residency restrictions • Smith v. Doe did not give states “blank check” • Burden “substantial”, not minor or indirect

  21. More evidence - Federal • Failure to register • U.S. v. Nichols – April 2016 • Registrant not required to notify state of move to another country • Access to social media • Packingham v. North Carolina – Feb 2017 • Government cannot deny registrants access to social media (but private sector can)

  22. More evidence - Federal • Failure to register • U.S. v. Gundy – 2015 – 2nd Circuit • SORNA requirement and delegation to states • Retroactive application • Gundy v. U.S. – 2018 – U.S. Supreme Court • Oral argument – Oct. 2018 • Friends of the court – many briefs including academics and ACLU

  23. More evidence – States • Library Ban Unconstitutional • 10th Circuit Court of Appeals – Jan 2012 – Doe v. City of Albuquerque • First Amendment rights • Lifetime Registration for Juveniles Unconstitutional • Ohio Supreme Court – Apr 2012 – In re C.P. • “Cruel and unusual punishment”

  24. More evidence - States • Pennsylvania v. Muniz - July 2017 • Defendant convicted prior to effective date of SORNA • SORNA registration requirement applied retroactively • Legislature declared focused upon recidivism rates • Court found SORNA punitive • Lack of fair notice • Disadvantages offender • Decision based upon ex post facto clauses • Distinguishes facts of Smith v. Doe

  25. More evidence - Federal • Millard v. Rankin – Colorado – Aug. 2017 • Decision based on 8th and 14th Amendments • Cruel and unusual punishment • Substantive and procedural due process • Addresses, distinguishes Smith v. Doe • SORNA’s effects “plainly negative” • Exposes registrants to private punishment • Fear generates cruel reactions • Shaming and banishment • On appeal to 10th Circuit Court of Appeals

  26. More evidence - States • Doe v. Sex Offender Board – Mass. – 2018 • Decision based on 14th Amendment • Procedural due process – termination, reclassification • Timely hearing required • Right to legal representation • Significant interests at stake – liberty & privacy • Government needs to avoid erroneous classification • Distracts public attention • Strains law enforcement resources

  27. More evidence - States • North Carolina v. Griffin – North Carolina – 2018 • Decision based upon 4th Amendment • Defendant required to wear GPS for 30 years • GPS requirement is “unreasonable search” • Court shifted burden of proof to state government • State failed to provide evidence that GPS “serves purpose of protecting against recidivism by sex offenders”

  28. More evidence - States • In the matter of Registrants G.H., G.A. • New Jersey - 2018 • Decision based on legislative intent • Retroactive application of requirement to register for life • “Manifestly unfair” • Originally eligible to petition removal • Plaintiffs no longer pose threat to safety of others

  29. Conclusion “I am only one, but I am one. I can’t do everything, but I can do something. What I can do, I ought to do. And what I ought to do, By the Grace of God I will do.” -- Author Eric Butterworth “Spiritual Economics”

  30. Closing • “Show Up – Stand Up – Speak Up” -- Civil Rights Attorney Janice Bellucci

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