TN: Huge win as Tennessee District Court slams the state for it’s registry violating ex post facto provisions.
Even though it had the benefit of relying on 6th circuit precedent, a Tennessee Middle District Court judge yesterday slammed the state for violating the Ex Post Facto provision of the Constitution by applying registry restrictions and conditions to people whose offenses predate those restrictions and conditions.
In the Order, the Court stated, “Under the Constitution, a backward-looking sexual offender registry—although perhaps permissible on its own, see Smith v. Doe, 538 U.S. 84, 105–06 (2003)—is not a license to heap an endless parade of new and severe punishments on individuals whose long-ago offenses carried no such consequences when committed”
While Does v. Snyder (the 6th Cir. Opinion that found the Michigan Registry to be punitive and violate Ex Post Facto provisions) was binding precedent in this case (Tennessee is in the 6th Circuit, so the Court had to apply it), the Judge still went out of her way to write a very insightful order, essentially reprimanding the state for their conduct. You can read the Opinion here: Does v Lee – Tenn Middle District Order
I guess is this was an order based on a series of motions, the court did not feel the need to state the facts of the case. Does anyone know the relevant provisions of the Tennessee law and when they were instituted? Without getting into a discussion about whether all out of staters are automatically made lifetime registrants like in Kentucky and other places, when was the requirement that you either be 10 years from date of conviction, end of sanctions or whatever OR have been on the Tennessee registry for five years which ever is longer if you’re looking for the tenure relief that is provided in the statutes. Logic would tell you that the five-year thing is for out of stators, but I would never call any of these laws logical. Likewise, even if a court would find that you would have to be on the registry for five additional years upon moving to Tennessee, would that include the residency restrictions and the Internet identifier requirements? When were those put into place? At this point in time, I suspect that a number of the people who participate on this website or, at some level, desperately searching for a place that they might go and get some relief from the current and future Florida restrictions. We need facts.
Huge Win????? this only helps people that had charges a long time ago. this does nothing to help the state of the current RSO and i am sure this will soon be overturned like every other ruling in or favor
No hope
There have been really no “Mass” wins that cover everyone. It seems those winning are a “Few” at a time. Not everyone has the money to fight the registry but when donations are given to groups, unfortunately it most helps those named personally in the suit.
A state or prosecutor and even most judges are more likely to let a few at a time off the registry rather than being known as the judge who “Took away our precious registries”. So it is a catch 22 for everyone.
Overturned by whom? The 6th Circuit COA? This is already THEIR law.
But yes, this creates precedent for ANYONE who committed a crime prior to the TN legislature devising additional burdens. Ex post facto matters, and that’s why even FAC has two live challenges to our registry scheme on that basis.
It won’t be overturned, because the 6th circuit already ruled on it, and the Supreme Court declined to hear it. It helps you because it’s precedent for other courts to follow. It means the government won’t be able to heap new requirements on you after your charge (if you live in the 6th circuit). Also, just be happy for others damn.
no hope, I think you misread the decision and are not clear on how the Federal Court system works. The Middle District of TN is in the 6th Circuit. The rule in that Circuit was the basis for this decision. If the state were to appeal this decision, they would be appealing it to the 6th Circuit Court of Appeals, which has already ruled on this issue and in favor of the Plaintiffs.
The whole idiocy of it is having to deal with certain timelines when laws were enacted, and an even worse idiocy of having a registry in the first place. If a registry must exist, than all States should be perfectly equal in laws. One standard for all, and no individual additions per anywhere for anything.
That’s what we have now in FL— one standard for all, regardless of the timelines when laws were enacted.
The Adam Walsh Act was the Fed govt’s attempt to impose one standard for all states. It’s not good.
If I am correct, federal laws such as the Adam Walsh Act specify a floor for registry requirements, not a top end. Even fully compliant states are free to impose more restrictive requirements. One of the (bogus) arguments for such laws or DOJ implementation rules is that they will “homogenize” registration implementations. Because only a floor is specified, these laws do just the opposite.
Veritas.
Basically what I mean Jacob, is if a registry must exist by the standards of the 2013 supreme court for Alaska, than all States should be held to those standards and not anything beyond that period. Meaning no additional laws added.
Sadly, this decision granted relief to only 8 individuals. As the Judge pointed out, the state of Tennessee has continued to ignore Roes v Snyder. The strong likelihood is that they will continue to violate offenders’ Constitutional rights, leaving it up to each individual to file suits for relief. Most can’t afford attorneys. Most know little about the appeals process. Many probably don’t even know that they may be entitled to relief. But the state knows full well those who have been placed on the registry improperly. They should be required to remove them ALL automatically.
Unfortunately, as long as the federal registry is upheld by the Supreme Court as Constitutional, there will always be plenty of room for each state to pass its own law that is as oppressive in the least, and even more oppressive during a lengthy appellate process.
No federal registry has been upheld by the Supreme Court as constitutional. Neither has the TN registry, as this ruling specifically points out. Nor has many features of the FL registry.
Sorry Jacob, but the US Supreme Court HAS ruled on the Constitutionality of the federal registry twice. The hope of most of us is that the Court will revisit the issue in light of numerous studies showing its ineffectiveness. Here is a link discussing those 2 cases:
https://en.wikipedia.org/wiki/Constitutionality_of_sex_offender_registries_in_the_United_States
Smith v. Doe was based on the first generation of sex offense laws. Since that time, a number of state and federal courts have found these “second generation” registries that impose additional requirements and restrictions, ARE punishment.
Did I read this right? The judge said it wasnt to heap an endless amount of PUNISHMENT!!! Well….I was always told the Registry wasnt punishment…..Hmmmm.
Hypothetically, or possibly realistically, if a registrant in TN that fit under the same Ex Post Facto and is taken off the (after his own court filing because he wasn’t John Doe #1-8) TN registry but visited FL and has a lifetime registration, would it take another filing by that registrant against the state of FL to be removed or would the court ruling in TN be a court precedence for a FL removal (since FL unconstitutionally applied the registry)? I wonder how that would benefit the non-residents of FL that remain on their state’s registry.
It may not help us immediately, but I see a lot of positives to our fight when I see judges calling the registration punitive and unconstitutional.
A TN District Court opinion is not binding precedent in Florida. Neither is the 6th Circuit opinion.
An 11th Circuit decision would be binding in a Florida District Court (and Georgia and Alabama) and a Supreme Court Decision would be binding on all states.
The 6th Circuit ruling may constitute persuasive authority in FL, correct?
Absolutely. So does the Middle District’s opinion.
Anytime another Court rules on the same issue, that decision is persuasive. If a higher court in the same jurisdiction rules on the same issue, that decision is binding and the lower court must follow it, even if it disagrees with the higher court.
Unless, of course the states within the circuit choose not to be bound and the appellate court has no further interest in forcing them to abide by its decision. How long ago was the case in Michigan decided? What happened in Michigan?
If that were to happen, Joe M, then a citizen could request a writ of mandamus from the higher court to force the lower court to follow the higher courts rulings.
Which highlights the problem. Having the money to hire an attorney. The Tennessee case under discussion here only applied to 8 of the 9 individuals who filed suit. Nothing in the order to tell the states to ALSO give the same relief to any others in similar circumstances. Same as in Michigan a few years ago when certain “Romeo and Juliet” cases were allowed to be removed from the registry. Yet each individual affected by that change had to petition the sentencing Court in order to be removed. The states know that they are violating people’s rights and intentionally ignoring court orders. But they don’t care. They have immunity.
Exactly, JoeM! Michigan simply passed a brand new SORA with minor modifications which the Sixth Circuit declined to rule on because it hasn’t gone through the same lengthy appeals process of the old SORA. Apparently, this will serve as a guideline for all of the state legislatures to use in order to avoid federal appellate review. Michigan’s Attorney General is already on record as being in favor of abandoning the oppressive registry law all together. We need more politicians who allow facts rather than emotions to influence their actions.
No one declined to rule. Someone (ACLU?) needs to bring the new law into court before they can rule on it. That’s how the courts work. But the appellate decision remains binding precedent. That’s why why we have this (TN) ruling and why TN had to remove more registrants. I don’t see the TN legislature doing anything to put them back on.
But it’s true that, as long as registries remain popular, legislatures will pull tricks such as they did in Michigan, forcing orgs like ACLU to keep fighting them.
I find FAC Contributor 3 comments to be highly educational and wish they’d be exhibited under Recent Comments on the FAC homepage, like they used to be, making them easier to identify.
My own comments are exhibited there, but they’re not nearly as important.
I’ll share this comment with our webmaster/developer.
Thanks for the compliment
Hell, it doesn’t even appear to be “persuasive” in the states that make up the Sixth Circuit
JoeM,
Which states are not following? The states that make up the 6th are comprised of Michigan (where Does v. Snyder originated), Tennessee (where this case is from), Kentucky (which had Com. v. Baker, 295 S.W.3d 437 – Supreme Court of Kentucky (2009)), and Ohio (which had State v. Williams, 129 Ohio St. 3d 344 – Ohio Supreme Court (2011)).
Those are the only 4 states in the 6th and those all were ex post facto wins.
If there are other cases which we are not aware of, please share them with us.
My recollection is that there are already a few cases pending in Florida arguing that people who have been removed from the registry in the state where their offenses occurred should also be removed from the Florida registry. However, the simple fact that Florida mandates a lifetime registration regardless of how many years the other states required suggests to me that Florida is going to keep people on that registry forever except in cases where the guilty verdict has been overturned.
Correct me if I am wrong but some of the members here are pointing out to Supreme Court decisions and while the Supreme Court has not ruled in our favor if more of these decisions such as the ones in TN and MI side with us, (Does v Synder) can we eventually see a third attempt or some sort of hearing before the Supreme Court?
George
I myself am kind of concerned about that. Right now it seems a more conservative court is the majority. If we get a lost in the highest court , we may be done for. Many times they do not want to rule at all and kick it back to the lower court who them denies us.
Sort of another catch 22 situation. We are use to those unfortunately. Am I saying we shouldn’t try? No I am not saying that, just have to look at who is on the court and how they have ruled before they were on the higher court to get an idea of what their values and agendas are.
One thing is for sure, some judge needs to grow a pair and tell the truth of the massive punitive nature the registry is. When someone on the registry gets killed in their own driveway (See previous FAC posts) for being on the registry, that is glaring proof we are being punished to the point of being murdered. Not murdered for what we may or may not have done in the past, rather for daring to live in the neighborhood.
I’m looking for an attorney in TN, for registry removal
Have you been on the Tennessee registry for at least five years And on any registry Tennessee or otherwise for at least 10 years?
The State of Michigan actually did appeal the Does v Snyder case to the US Supreme Court, but the Court declined the opportunity to review it. That’s why the decision is binding in the Sixth Circuit. There really is no way to predict how the Supreme Court would rule today. Sometimes conservative Justices issue rulings that favor individual rights over public opinion. Sometimes not. It would at least be an opportunity to present real facts and refute myths and false assumptions about recidivism and danger to society. But it is exceedingly rare for ANY case to make it to the Supreme Court.
I was convicted in 1985 for a sex crime. I was released in 1992 after serving 7.5 years. I was informed in 2011 that I had to register as a sex offender. I must report every quarter to stay in compliance. Being placed on the registery was not a part of my sentence. I am disabled on a fixed income. So how would I go about being removed from the registry?
David
You are in the same boat as me, was retroactively placed on registry in 1997 after a 1991 crime. I was told after 20 years of being off of paperwork, IE: Probation, house arrest, etc, you can hire a qualified specialist lawyer to petition the court to remove you from the registry. As long as you have had no arrests since.
Check under the tab at the top of this page where is states Resources and under that heading is Attorneys specializing in RSO issues. Hope that helps.
A list of lawyers on FAC website but not sure what state you live in. I am in Florida.