Transcript of RM183: Colorado’s “Irredeemably Depraved” Unconstitutional

Listen to RM183: Colorado’s “Irredeemably Depraved” Unconstitutional

RM183: Colorado’s “Irredeemably Depraved” Unconstitutional

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts, fyp. Recording live from FYP Studios, east and west. Transmitting across the internet. This is Episode 183 of Registry Matters. Larry there is nothing going on tonight is there?

Larry 00:25
No, we should be out of here in just a few minutes I should say.

Andy 00:29
I should Yeah, like, figured we wouldn’t leave anybody with not another week of no podcast. So we just show up. Say hello. And thanks, everybody for coming. Later. But seriously, what do we have going on tonight?

Larry 00:42
I’ve lost count of so many things we’ve got going on tonight. We’ve got listener questions. Unfortunately, I don’t think we have any from behind the walls. But we’ve got some listener questions. We’ve got comments. We’ve got news from New Mexico. We’re going to have a patron extra about Bill Cosby. And we’re going to talk about a decision out of state of Colorado Supreme Court. And we’ve got a contribution from an advocate in South Carolina that has responded with an analysis of his own, which we’re going to discuss

Andy 01:20
Outstanding. Man, Okay. And like 45 minutes, maybe, tops.

Larry 01:26
we should be able to do it in 15.

Andy 01:28
Sweet. Alright. Let us begin with a two-part question from Brent.

Brent (Recording) 01:37
Hey, Andy, and Larry, I appreciate so much that you guys answered my question last week about the detention hearing from my relative that was that had just been arrested by the FBI. So, I actually have two more questions, if you don’t mind. So first, the detention hearing that I talked about, was actually postponed again. So, it never happened. And so, this is the second time that it was postponed. And we were wondering why they would do that.

Larry 02:09
Well, in terms of that question, the reason why the detention hearing is normally postponed is because the defense counsel asked that it be postponed. The government has sought detention this particular case and only have sketchy facts. But the defense attorney would want to build a compelling case or a more compelling case for some sort of release pending trial. And what I’m guessing would have happened is that they were unable to connect with the people who might provide the structure and supervision necessary. And pretrial services from the from the federal side, they’re very thorough. And the defense attorney needs to have a compelling argument about how this person can be adequately supervised, to keep the community safe and to assure his appearance. And my guess is that the attorney made the motion which the government’s not going to oppose, because they’ve got him in detention. Why would you oppose an extension of the status quo, so the motion would have been unopposed. And the hearing is postponed in order to give the defense attorney a chance to put together a more compelling reason. As I said last week, please answer your phones. The hearing is actually scheduled for Tuesday. So there’s really no more workdays left, Monday being a federal holiday. But hopefully they answered their phones and took all incoming calls. I know it’s terrifying to people to do that. But these people may call you from numbers you don’t recognize but you need to answer them. (Andy: Ready for part two?) Sure, let’s do it.

Brent (Recording) 03:43
You know, and so the second question that I have, is that the person I’m asking about is a college student and has no prior criminal history at all. So, won’t they go easy on him and give him probation?

Andy 04:04
*Andy plays audio of hysterical laughter* I’m gonna step out there, Larry, and say that that’s going to be a no.

Larry 04:08
It would be most unlikely, I believe. Now, I don’t have all the factual allegations in this case, I’m pretty sure that an underage image or two have changed hands. And I know that it was a chat room that was supposedly adults and they magically became minors. And I know enough about it, that this is not in the federal system. If he were in the state of New Mexico. If he were in our system, this is actually pending in Mexico federal court. If he were actually in the state system, there would be a very good chance he would get probation because no prior criminal history, but he’s not in our state system. He’s in the federal system. Only about 9% of people in the federal system receive probation as a sentence. Almost everyone goes to prison. Remember Martha Stewart? Remember that name? Does that ring a bell to you?

Andy 05:01
I do for sure.

Larry 05:06
Well, she misled a federal investigator about a stock trade. And that was so heinous that she had to serve time, it was a very brief amount of time, I think it’s something on the order of six months. But if Martha Stewart served time, most of the offenses in the federal system that end up with probation would be like killing a migratory bird, or being on federal land that you shouldn’t be on because you’re in a protected wilderness area, and you shouldn’t have been there. But these types of crimes that receive probation are far and few between. In this instance, he’s likely looking at 40, 50, 60 months in federal prison. And that’s just what I know about the case, there may be more serious charges that I don’t know about. But it’s a very, very disappointing thing to me. He’s young, he’s got his whole life ahead of him. And he’s got to have this baggage, which is going to suppress his earnings, his ability to pay tax, his ability to be a productive citizen, it’s just a tragedy. And when we talk about one of the terms I hate, which is defunding the police, I hate that term. We’re going to mention it more in the podcast about these little catchy phrases that they come up with. We’re actually talking about reducing funding. And this is an example of where excessive funding permits them to do these types of things. They’re very expensive. They require a lot of human capital to put these things together. And they are able to do these because they have a vast amount of resources. His family is going to be shocked at the resources they have because they tend to lean conservative and they think that the cops are overworked and understaffed and criminals have all the advantages. As this unfolds, they’re going to see they’re not so overworked and understaffed, and they’re going to see that the criminal doesn’t have all the advantages that they thought they had. It’s going to be a real shock to them. But probation would be a very, very long shot.

Andy 06:54
Okie dokie. Um, let’s move over to one from Jeff, Larry. To set it up, I think you have some comments about hovercrafts when people travel.

Larry 07:03
I do. We actually watch for them when you’re traveling. I’ve spotted some in your proximity. When you’re traveling, we have had to take evasive measures.

Andy 07:14
Okay, this is from Jeff.

Jeff (Voicemail) 7:16
Hey Registry Matters podcast, I was just calling to let you know about something I did over the weekend. My family and I got in our car and headed to Missouri. And I’m pretty sure in Missouri, you’re not allowed to go to the museum if you are a PFR. But I went. Did anyone care? And strangely enough, the US Marshals didn’t show up the hovercrafts weren’t out. And me and my family had a great time. By the way, this is Jeff, Kentucky. And anyway, I was just letting you guys know, Larry’s right. Helicopters and hovercrafts and US Marshals don’t show up and didn’t start emitting radiation when I stepped onto the, when I stepped into the museum. But anyway, you guys take care, thanks for what you do. And as always, fyp, goodbye.

Andy 08:07
I think we should probably give a little disclaimer, don’t you think, Larry?

Larry 08:11
I do, I was gonna suggest, I don’t recommend that anyone evade or disobey the law. What I do recommend is you don’t over read the law and try to create obligations that are not there, which is what so many people attempt to do. They will insist that there’s a requirement… I mean, we just read something from Cristian last episode, or the week episode before, where he contacted the feds about whether or not he had to give travel in order to get notification yet he’s not required to register the state he lives in and then he’s being listed on this website in Texas. Just don’t overdo it. Don’t imagine things that are there in the law that are not there.

Andy 08:56
And just for clarity, Jeff sent these in a couple weeks ago, and with the traveling and with all the new extra work that I have, it just completely slipped my mind. But here it is. So we got it. And Jeff has been a patron. He’s like the second or third patron. He’s been around for an incredibly long time. And I’m sorry that I forgot to bring these in. But so we also had a second question, or actually a question. The first one was just letting us know what’s up. But here’s a question from Jeff.

Jeff (Voicemail) 09:22
Hey, Andy, and Larry, this is Jeff from Kentucky again. I had one more thing I wanted to ask. So, in South Carolina, they ruled lifetime registration without due process unconstitutional. That’s fantastic. What I wanted to know is in the state of Kentucky, if you have two or more offenses that are considered to be against a minor it is in the statute that you automatically have to register for life. And I had two counts of possession of illegal images. So that’s considered to be two crimes against a minor that were sexual in nature. Therefore, it triggered an automatic lifetime registration. Since lifetime registration from my crime is in the statute, did I not get due process? Is that still not considered to be due process since it’s in the statute that if you do this crime, it’s lifetime automatically? Just wanted to hear what Larry had to say about that. And once again, fyp. You guys have a great Saturday. Take care. Goodbye.

Andy 10:19
Thank you, Jeff. How would that translate, do you think, Larry?

Larry 10:23
I love that question. It gives me a chance to talk about something we mention periodically. I have great trepidation with statutory schemes that consider it to be two convictions when it happened within the same case. And the way he phrased that he said, two counts, he didn’t say two separate incidents. I’m believing that he had to two counts, within the same case, that that to me makes it a much more compelling case that he shouldn’t be lifetime. And if I had the money, and I were inclined, I would make that challenge, depending on how many years he’s been on the registry, we would need to look at that. If he’s been of the registry for three weeks, it wouldn’t be a compelling case. But if he’s been on the registry for a number of years, the fact that they made him statutorily a lifetime for conduct that occurred within the same case, within the same window, within the same frame of criminal behavior, and he has had no further intervention, he could certainly make a compelling case that… the body of case law is building on this about lack of due process. We’re going to talk about a Colorado case later that applies to juveniles who don’t receive due process. This is a significant issue. I think he might be onto something there.

Andy 11:42
Thank you again, Jeff. I really appreciate it. Teresa also said PA also had automatic lifetime registration for more than one count. Fortunately, the PA Supreme Court said no, no, no. Do you remember how that went down Larry? Do you have anything to add to that?

Larry 11:56
I don’t. But I know there’s a body of case law building about no due process for lifetime registration.

Andy 12:05
So you’re saying though, if somebody, you get captured, you get caught with having multiple images, that’s one charge. And then a year later, something happens again, you’re talking like that would be two separate incidents, not just finding images in one shot where they investigate your phone?

Larry 12:21
Correct. If you are committing a series of criminal acts, and they prosecute you, they intervene and they prosecute you, then you’ve had an intervention at that point. Any criminality that occurs subsequent to that would be indicative of the intervention not working. But if they look back and they find stuff that you had done, prior to the intervention, even if they throw another count at you, I would still make a compelling argument that intervention may have worked, but particularly when it’s charged in the same case, and it’s just an additional count. To me, it’s despicable that you would say, well, they have to two counts within the same case. That could happen with the same victim on the same incident. You could have two counts depending on what you did.

Andy 13:14
I follow. I follow. I follow. Let’s keep moving along. And a Patron over in our Discord server said Oh, Larry is being intellectually dishonest… This comes from something that was said I guess it was about a week ago, two weeks ago, where we played a voicemail message from someone that talked about don’t vote for court packing or whatever the hell it was. You can go back in episode or two and find that voicemail. This is a response to the conversation that we had it says, oh, Larry is being intellectually dishonest. Stop it. No one is suggesting an increase to the Supreme Court because of complex casework. In fact, the justices are against an increase and believe nine is the appropriate number. Any more would make oral arguments and time allotments untenable. The suggestions to increase are coming from the far left. Biden put up a commission into study it. Largely to appease them, calling it a scare tactic of the right is partisan crap. Yes, the right is using it to drum up votes in elections. But it was a talking point handed them by the left. Yes, McConnell played a very political, legal but political games in blocking Garland and getting Kavanaugh appointed. And if Larry wants to suggest that packing the court would be a valid response to that, he can make that argument, but to be disingenuous to suggest there are practical reasons we should consider and that talk of court packing, it’s just scare tactic. It’s frankly false and he knows it.

Larry 14:42
So, actually, I don’t know it. But I do appreciate the feedback because if he heard something, that’s not what I intended to communicate, and I always believe if one person hears something that other people can hear the same thing. I will try to make it clear and break it down. The Supreme Court has been at a 100, what, 150 years or so at this magic number of nine. And we’ve got a graphic about how in the last 40 years, the number of cases review has dropped. And I’m going by the data. And for some reason, they’re hearing fewer and fewer cases, but in the 40 year period that that our graphic goes back or more, the population has gone up exponentially. The number of cases in the federal court system have gone up exponentially. So then we have to ask ourselves, why are they not able to hear as many cases? And I don’t have the answer to that. I do not have the answer to that. I don’t know what the factors are that’s leading to fewer cases. But what I would like to do is to take all the politics out of the court as much as possible. You can’t eliminate all the politics, but I would like to, just as they when they enlarge the federal judiciary at the circuit court level, which they do periodically. I think they did it in the Carter administration, they did it to get into George HW Bush, they added judgeships. At some point, we can have an intellectually honest discussion about the size of the Supreme Court. And if there was a way for more people that deserve to have their cases reviewed, and their day at the Supreme Court, if they can have them. I would not hesitate to criticize the reasoning of the left that says that we should do this, because we don’t like the outcome. We should never change the number of Court justices because we don’t like the outcome so that we can get our people on. I don’t have any hesitation to say that. I wish the person who wrote this him would bring himself to say the same thing about the blocking of a well-qualified Circuit Court justice named Garland. That was unprecedented, that has not happened in our nation’s history. And I would be happy to hear him call it call that out. That was behavior, that was politicization at its best. But anyway, I don’t want to see the court packed, I want to have a thorough evaluation of what size the court should be at to make our court system work more efficiently. I bet if you asked a lot of the Attorney General offices around the country when they sought review of the case from Pennsylvania and from Michigan, they were disappointed that they didn’t get their cert petitions granted. And they would probably be delighted if they had gotten cert granted by the Supreme Court. But the Supreme Court did not grant cert. They’re granting what 80 petitions a year now roughly. 70 or 80 petitions a year, down from 150 back in the 60s, or 70s. So anyway, that’s my point. I’m not for court packing. So please don’t put that on me. I’m not for that. That is not what I said.

Andy 17:48
Just to toss this around for just a minute. Do you think that there would be like, as I understand it, aren’t there multiple, multiple, I don’t know the right term Larry, courts, so to speak, in the different circuits where there are three judge panels, if I’m not mistaken. And then they do what is called, if I’m not mistaken again, en banc. If they need to have the whole court review it. Couldn’t they just let’s just say it like if they split it between, let’s say they’re two five-Supreme-Court-Justice-courts. And they would just hear that maybe that would like, double the caseload that they could handle.

Larry 18:25
Absolutely. That is correct. That is in fact what they do. You may have depending on the size of the circuit, you may have 15, 20, 25 judges in a circuit, but all the cases that make their way up are decided first by a three-judge panel, and then the losing side, many times request full court review, which is seldom granted. And you could do the same thing with the Supreme Court. I don’t have the magic answer. All I have is a data that shows the number of cases being granted review has gone down. And I don’t know why. Is it because they’re getting older, they can’t produce the work. That’s, I don’t know if that has a factor in it. I don’t know if the complexity of the litigation has a factor in it. I don’t know the answer to these things. I do not know. I do know this. I know that a well-qualified person was blocked by Mitch McConnell. And that was unprecedented. It had never been done before. I know that. And I know that a person was put through at the end of the Trump administration at rapid fire pace. That has never been done before. Those are the things I do know. I even was surprised that they did that with such short time left because normally the vetting process and the way they do the confirmation process, it takes many months. I do know those things. And those things have not happened before. Are they unconstitutional? No, they’re not unconstitutional. All it did was change the decorum and the norms of how we had always done things, but there was nothing particularly unconstitutional about what happened.

Andy 19:56
Correct me if I’m wrong. Could we Amy Coney Barrett was already on, she had already been vetted and approved by the Senate and all that stuff to be on the circuit. I don’t know what level she was at. But I’m pretty sure Garland was in the DC Circuit? (Larry: Correct) And that is often like the fast track to be the Supreme Court Justice. So they were both already in those kinds of positions. So to bring in Amy Coney Barrett in like 45 days or something like that, and then sit on garland for 11 months. I’m just trying to draw parity between those two points.

Larry 20:29
There is no parity and that’s what I’m calling out. There was a different standard for Garland. He was blocked deliberately. And the other one was fast tracked. They both were on Courts of Appeals. They both qualified. I have no problem with qualified people getting on the Supreme Court. I don’t have the litmus test that everybody else has. I would like for us, I actually agree with Chief Justice Roberts, when he called out Trump, we don’t have Obama judges or Bush judges, we have US judges. And I agree with the Chief Justice on that. The people are qualified. I may not agree with… I didn’t agree with Ruth Bader Ginsburg on some of her stuff. But they do what they see as best they understand the law.

Andy 21:17
Very good. Let’s move on from that. And we are going to move into , this is a message that starts with my name is Robert, I believe that’s where we’re gonna go or am I going somewhere else first?

Larry 21:29
You are correct.

Andy 21:31
Awesome. Good. I’m keeping up with things, man. All right.

My name is Robert. And I’m a member of NARSOL and I currently run a support group for PFRs and their family members and friends here in Kalamazoo, Michigan, called Fearless. And we work with the ACLU to help with advocacy and change, as well as the education to the community and a support group for the friends and family members of PFRs. I am currently in the process of purchasing a home in Truth or Consequences in New Mexico. So, I contacted the Department of Public Safety down there and let them know what’s going on. They requested a copy of my judgment sentence or something like that. So, I sent them a copy of my psi, and they said that was sufficient and they would be getting back with me. I just received a letter from them today. And I’m a bit concerned about the third paragraph because they have my child sexually abusive material translated to 30-6a-3, which is sexual exploitation of children. And they say that that is lifetime registration reporting every 90 days. But when I look up the law, I can’t see where 30-6a-3is lifetime registration. I’m hoping you can shed some light on this for me.

Being as this is in your neck of the woods, Larry, I would imagine you know this quite well.

Larry 22:45
I do. In fact, we reported some good news that from New Mexico that that blends right into this. We could just we could just move into the new segment and then I’ll explain from there. But yes, I did review that. There was one part of the letter that’s a little bit troubling. That section that they cite as the basis for lifetime registration, that’s actually contributing to delinquency of a minor. But the title of the offense, the sexual exploitation of children is a lifetime offense. But I’ve got the great news. Why don’t we let you be the great reader you are and read the great news from New Mexico?

Andy 23:24
Very well. It starts off with you people out in New Mexico reported some good news and I will read the first paragraph. Liberty Justice Coalition is delighted to report to you that registrants with non-New Mexico convictions will soon be entitled to due process before they are listed on the New Mexico’s Department of Public Safety NMDPS website. This is a direct result of LJC’s lawsuit and subsequent work. And it becomes effective today, July 1st , 2021. This is a monumental achievement, and we are grateful to Barry Porter and Ashley Cloud for their work in making this dream come true. We are not aware of a state that has such a robust process for those relocating from other states. The process does include the opportunity for judicial review for those who disagree with the equivalency determination. Unfortunately, we were unable to get this process applied retroactively, which may mean another lawsuit. I know you don’t like to toot your own horn. But isn’t this your baby?

Larry 24:24
Well, it is indeed. This is the first lawsuit that we chose when we had the resources here in New Mexico to do a lawsuit. We looked at the various things and there’s so many that we wanted to go after. And we chose this one because we felt we had a compelling case. The law is clear. Our law is really strong in terms of what triggers a duty to register in New Mexico. One must be convicted of an offense that is equivalent to an offense on our list. Some states have language such as substantially similar and others just take categorical approaches you have to register if you have register there. But we don’t do that here. It has to be equivalent. That’s the strongest language. But yet, they weren’t providing any process for those people to determine that equivalency. So we felt we could win that case. Unfortunately, we lost. We had plaintiffs that had been here for years and years, and the judge ruled that they were beyond the statute of limitations. So we took a voluntary dismissal. And we told the state we had a new group of plaintiffs, and we were ready to relaunch the case, because the judge had ruled in his prior to us dismissing the case, he had ruled that we had a case. That it was clear, and we were going to win if we had the right plaintiffs. So we went forward, and this is what we ended up with.

Andy 25:48
What’s wrong with that approach?

Larry 25:50
Well, well, you talking about if people have to register anywhere, they have to register here? That approach you’re talking about? Yeah, what’s wrong with it is that it violates the equal protection clause of the Constitution. When you become a resident of another state, you have the privilege and protections, the same as the person who was born there. So therefore, you can’t say, well, you have to do that in the other state. Why don’t we do that when you have taxes in another state. Why don’t we say, Well, you know what, look at this. We have a New York, you have a city tax, and you also have a state tax, and ours is 4.9% here, but in New York, it’s 8.5. Plus, you have the city tax, that’d be a 9-point. Why don’t we do that? We don’t, because you’re entitled to pay the tax rates that are levied here. When you come here, if you’ve committed a registerable sex offense, if it translates to one of ours, according to the statute, that’s what we register. We don’t register you just because you have a conviction in another state and some other state is kooky enough to require you to register. That’s what’s wrong with it.

Andy 26:50
Okay, and you are particularly proud of a couple points. Let’s go through one by one. First, rhe New Mexico Administrative Code now clarifies it is the Department of Public Safety who must make the determination, not the local sheriff. The fact that the determination is made by the DPS provides some insulation from a sheriff that believes a person should have to register here if the person was required to register in another jurisdiction. And that’s 10.2.3.10(a) NMAC provides within 45 calendar days after the judgment receives the initial registration information, the out of state registrant is required under Section 29-1-1(a)-4 NMSA and those above to provide the sheriff. The department shall complete a translation and advise the out of state registrant and the sheriff whether the out of state registrant was convicted in another jurisdiction of a sex offense equivalent to one or more of those offenses. In subsection 1 of Section 29-1-1(a)-3, and is required to register as a sex offender in New Mexico. This is awesome. Larry, the way I read it is that the person still has to register when they arrive in New Mexico. Is that right?

Larry 28:03
That’s correct, the person needs to register because there’s a loop open when they left the other state. And they’ve notified that state that they’re going to New Mexico theoretically. And they will be reported as missing in action and the feds will be looking for them. So you have to register. But the beauty of this is the person’s registration will not be disseminated via the internet while the translation is pending. And that’s under 10.2.3.10 subsection D of the New Mexico Administrative Code now. And that provides the protection for the registration. While the translation is pending, no information regarding the out of state registrant shall be entered into the public-facing portion of the local or state central registry. That means as an internet guru, you know that once it’s out there, it’s hard to take it back. (Andy: It’s very hard.) So we have protection. Now maybe make it clear, this is not because you feel like you’re a good guy, and that you’ve done enough time in another state’s registry and that you should have gotten off in that state. That’s not what this is about. This is to determine if your crime is equivalent to one here. You don’t get the benefit of if you come from another state that has more lax requirements, you don’t get the benefit of that. This is to determine if your offense translates to one of ours. That’s all this process is about. But you don’t get it disseminated until the determination is made.

Andy 29:27
There are states that it doesn’t matter the crime. I guess there’s two ways to word it. But one of them is if you’ve registered in another state, doesn’t matter whether you’ve been convicted or not. But if you’ve had to register in another state, you have to register here. (Larry: Correct.) Okay, and then what is the standard for determining if the offense is equivalent? Because I could see they would have all different kinds of ways to word urinating in public.

Larry 29:51
Well, that same section of Administrative Code that I just quoted, the standard to be used by the department is, is to be one of clear and convincing evidence. And that’s a pretty good standard. That’s just one step below reasonable doubt. So they have to show that this is an equivalent offense. Now, unfortunately, there’s some responsibilities on the PFR. They have to provide documentation. And there’s a lot of burden put on them. And the state made a compelling argument that they’re not researchers, and that they would not agree to putting the entire burden on them. So if you come to this state, bring as much paperwork as you can with you, and make sure that’s valid paperwork. When I say valid paperwork, don’t take a copy of a copy of a copy of a copy, that’s blurry. It’s jacked up crossways. And it looks like that something that you may have invented. try to bring as clean copies that haven’t got coffee spilled on them and all blurry, that look like they’re legitimate documents. So they’ll take them seriously. Bring as much documentation as you can to help them in making that determination. Because it may be that you did not commit an equivalent offense, or it may be that you committed an offense that might put you on a ten-year track rather than a lifetime track. So you need as much information as you can to help them make that decision. (Andy: Quick question, is this a Uhaul event?) What is a Uhaul event?

Andy 31:20
Is everyone going to move to New Mexico?

Larry 31:21
Oh, no, our registration list is broad enough that we’re going to encompass most of the offenses that are registered everywhere. The only thing is that there are offenses that are not on our list. I always mention the obscene phone calls to a minor in Georgia. Those are not registerable here. And there are some, California has a really long list and some of those offenses in California, they’re not registerable here. But in most instances, the basic universal sexual offenses, they’re going to be registerable here. You’re gonna end up having to register. But at least you can contest that. But focus your dispute on whether it’s equivalent. You don’t get to argue that you’ve done enough time already in another state. It’s not about how good of a person you are, that you’ve been rehabilitated, that is not a part of the analysis. It’s whether or not that offense, had it been committed here, would have triggered a duty to register. That’s all it’s about.

Andy 32:19
All right. Well, congrats to you people in New Mexico. (Larry: Well, thank you.) And we can then move over to the response from the South Carolina advocate. And he posted to the Region Two, and Region Two is sort of like the eastern center of the United States, like the coast and up, but not New England, kinda like not there. Says an advocate from South Carolina posted in the Region Two NARSOL affiliates list, his analysis of the South Carolina case we discussed on Registry Matters. And I would like to discuss parts of that analysis with you, Larry. Don said, certainly creating a mechanism for removal will result in an immediate flood of petitions entering the court system. And that is something they will have to deal with because what you people fail to recognize in the podcast was the fact the failure to act will result in a similar flood potentially larger, simply based on the South Carolina decision. In fact, in that case, the problem is worse because those people don’t even have to prove they aren’t dangerous. The claim would be the Supreme Court already said the law, as it is, is unconstitutional. The legislature failed to act to terminate my unconstitutional registry requirement. What’s wrong with that logic? And why would that not work?

Larry 33:39
Well, what’s wrong with it? There’s really nothing wrong with the logic If there were no other options for the state of South Carolina. But unfortunately, there’s another option or two. Option one is they can file a cert petition, which would almost certainly put the brakes on anything until the Supreme Court decides whether or not it wishes to hear the case. And he did concede, we’re not reading the entire analysis, he did concede that there’s a five-month window, so that puts them out to November before they have to make that decision. So they’ve got five months to decide to submit a cert petition. Well, they’ve probably got four months to decide because they need to compose the thing. If they’re going to submit it within the deadline, that’ll take some time. So but they’ve got five months to submit that. If they submit that, that’s immediately going to throw a monkey wrench and the brakes on everything. Because if I’m the Attorney General in South Carolina, I will say to my state Supreme Court we’ve decided to file a cert petition, and that’s going to hold up everything because we need to wait to see what the Supreme Court is going to do. And the South Carolina Supreme Court is likely going to respect that. So therefore, you’ve gummed up the process. But option two is that they can maneuver with the legislature to have multiple proposals pending to deal with this. I know this sounds really farfetched to people who don’t work in the legislature, but that’s what they would logically do. They would have multiple proposals, confuse the issue as much as they can, and then they would work behind the scenes to make sure that none of those make it to the finish line. And at that point, the South Carolina Supreme Court would be facing a terrible political problem, since they themselves are elected in South Carolina. Do they simply say too bad, so sad? You did not fix this within the one-year timeframe and order the entire registry to be shut down? I think that that would be an extreme remedy, and highly unlikely. I say that because they did not determine that registration in of itself is unconstitutional. They determined that lifetime registration without any due process for review of one’s risk is unconstitutional, and removing all registrants by a broad judicial order would be an unprecedented action, and I think very, very dangerous and probably politically suicidal for those justices. They’re not likely to do that.

Andy 35:49
Sure. And then Don also said, if no legislation passes in the remaining term, I’ll be filing one of those petitions on June 10. I’ll probably even put in the effort to submit proof of my non dangerousness just to be more persuasive. In fact, I’m intrigued by the idea of finding a couple of helpful attorneys who, for a small fee, would clone the paperwork a couple 100 times. But I do agree with Larry that filing these actions before the legislative session ends is futile, as the court will most certainly hold it in abeyance, as Larry said, or if they don’t like you, they might just dismiss it outright and make you file again, after the year is up. Do you like that strategy?

Larry 36:31
Actually, I do like that strategy. I don’t think you’ll ever get a chance to implement it. But I do like it. It’s a well thought out strategy. You would actually want to cause the legislature… one of the things that causes the legislature to work would be the judiciary saying that we can’t handle this. And I think there’s 14,000 or 18,000 on the registry. If you could generate a substantial deluge of petitions, that would be political pressure for them to act. So I like that. But I don’t think you’ll ever get to that. I think that other maneuvers will prevent that from happening. But if I’m wrong, that would be a really good strategy.

Andy 37:09
And Don moves on to say, Larry is right about Attorney General Wilson filing a cert petition with the Supreme Court attempting to overturn this, and that’s the US Supreme Court, attempting to overturn this. It might just be an unfortunate error on the part of the petitioner’s attorney that he didn’t base his claim solely on the South Carolina constitution. That being said, I don’t think Larry is right. First of all, someone noted in the podcast that South Carolina doesn’t like the feds telling us what to do. True. If AG Wilson were to go to the US Supreme Court to ask them to overturn a unanimous opinion of the Supreme Court of South Carolina, it would have a similar effect on his election changes. What about that logic, Larry? Would the South Carolina AG not be taking a political risk if he asked the US Supreme Court to overturn a unanimous decision of our supreme court?

Larry 37:58
No, he would not. I mean, again, he’s thinking logically, but he’s not thinking politically. That would not be a risky thing. It would be actually risky not to do it. This would be a good opportunity to discuss the flip flopping that occurs when people espouse their views of keeping the big, bad federal authorities out of their lives. The average South Carolinian would be delighted to have what they believe to be a more conservative court, that’s the US Supreme Court, come in and correct a runaway, out of touch state Supreme Court that handed down a horrible decision. The average South Carolinian is not going to be amused that potentially 14,000 people of all levels of dangerousness might be get off the registry. And most of us, I mean, you and me are intellectually dishonest in terms of what we want from our courts. Those who tend to lean to the conservative side claim that they want judges to just simply interpret the law. Yet they’re more than happy when the courts are activists when it’s something they agree with. On the other hand, liberals are notorious in wanting courts to invent rights that’re not in the Constitution. And they try to achieve those via the courts when they can’t win those arguments in the political process. We’re all intellectually dishonest at times. I tried my best not to be, but I’m only a human. And we all do that. The average South Carolinian, depending on how this plays in the press, all it’s gonna take is one elected official who gets a complaint from a high dollar constituent saying I’ve got one of these kinds of people and I’ve got children and they’re about to be off the registry, what are you gonna do? And that one grandstanding elected official can make a lot of noise and a lot of press coverage will come about and this is just gonna change the whole paradigm. I don’t make these rules folks, I’m just telling you what they are.

Andy 39:42
Interesting. Okay. I don’t have… this is kind of over my head. So I can’t even really, like, this is almost like I completely respect your opinion there but he’s just providing counterpoints and you’re going back forth. I don’t have anything to add or ask.

Larry 40:00
Well, he’s really a good guy. And, and I like him a lot. He’s, he’s very intelligent. And he’s very thoughtful. I don’t think he has the political savvy that it takes, although he does work in the legislative process. But this has to be in your veins. And you have to been doing this for decades to really understand how this is likely to go down. I don’t have a crystal ball. I actually hope I’m quite wrong. I hope they don’t file a cert petition. I hope that within a year that they create a process. I don’t think it’s very likely they will within a year, I think we’ve got enough to look backwards on in other states. But I hope they do. And we’ll come back a year from now and say South Carolina is launching this beautiful process. And we’re shocked. And we’re delighted that we were wrong.

Andy 40:46
He also became a patron just so that he could hear the analysis a couple days before the main podcast feed came out. Thank you, Don, and welcome. And I hope you’re listening to this episode as well.

Larry 40:57
Did he come in at the $3,200 level?

Andy 41:02
It was close to that, give or take? Yeah, we give or take a few $1,000. (Larry: Alright.) Do me a favor, Larry, can you give us like a… so I am now teasing that Patreon extra so that people will go over and sign up on Patreon. We’re getting really close to me having to play a sax solo. So I’m actually gonna have to start practicing for real. Can you give like a two-minute teaser on what this Cosby thing is that came out in the news this week, I believe it was?

Larry 41:29
Yeah, there’s been ample coverage. But the Supreme Court of Pennsylvania, decided to overturn his conviction and ordered his immediate release last week. And they used very, very sound and logical… I mean, you can’t do any better than they did. I haven’t read the decision, with the intensity I need. But I’ve relied on others in this instance, that are experts. And we were going to have some good chatter going back and forth about why they did what they did. And, and we’re gonna have an audio clip to play and it’s got to be great.

Andy 42:07
Ready to be a part of Registry Matters? Get links at registrymatters.co. If you need to be all discreet about it, contact them by email at registrymatterscast@gmail.com. You can call or text a ransom message to (747)227-4477. Want to support Registry Matters on a monthly basis? Head to patreon.com/registrymatters. Not ready to become a patron? Give a five-star review at Apple podcasts for stitcher or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting. Without you, we can’t succeed. You make it possible.

And we’re back everybody from our Patreon extra, be sure to go sign up over patreon.com to listen to the little Patreon extra that we put together for those people, not you people, but those people. And Larry, you people put a case in from the Colorado Supreme Court. The people of the state of Colorado in the interest of respondent cross petitioner TB, do I have the right, the court considered whether the mandatory lifetime PFR registration for offenders with multiple adjudication constitutes cruel and unusual punishment in violation of the Eighth Amendment to the US Constitution? Give us a thumbnail of this case.

Larry 43:34
Sure, this case was initiated by TB, who committed two sexual offenses as a minor and they were actually separate sexual offenses. The first was when he was 11 years old and the second when he was 15. Because he was a twice-adjudicated delinquent for unlawful sexual behavior, the Colorado sex offender registration act, CSORA, requires TB to register as a sex offender for the remainder of his natural life. TB sought review of the juvenile court’s denial of his petition to deregister arguing that CSORA’s mandatory life sex offender registration requirement for offenders with multiple adjudications violates the 8th Amendment’s prohibition on cruel & unusual punishment. That’s what he argued. (Andy: What was the outcome there?) The court concluded that the test articulated in Kennedy v. Mendoza Martinez… Now you’ve heard me talk about that over the last four years.

Andy 44:32
I have. It’s something with seven tests and to make sure see if something is cruel and unusual punishment. If it’s punishment or a civil regulatory scheme.

Larry 44:40
That’s correct. That’s the landmark case that determined those seven factors. So they decided under that test, particularly in Kennedy v. Mendoza Martinez, which is a 1963 case, that mandatory lifetime sex registration for offenders with multiple juvenile adjudications constitutes punishment. They used the same case that everybody says empowers registration, which I say it can be used in opposite. I say that because of the disabilities and restraints and all the different things that they said the reason why they upheld Alaska scheme is since the states had done all those additional provisions that weren’t a part of the Alaska analysis, that you could use the same case to argue. Therefore, now it’s not constitutional. And they did that and lo and behold, poof, it worked. The court further concluded that such punishment is cruel and unusual. And I’m quoting from the opinion now, mandatory lifetime sex offender registration brands juveniles as irredeemably depraved based on acts committed before reaching adulthood.

Andy 45:47
I noticed that just below what you quoted, the court said but a wealth of social science and jurisprudence confirms what common sense suggests. Juveniles are different. Minors have tremendous capacity to change and reform as such, mandating lifetime PFR registration for juveniles without providing a mechanism for an individual assessment, or an opportunity to reregister upon a showing of rehabilitation is excessive and violates the Eighth Amendment. That is on page three of the opinion, Larry. this is powerful. Could this be the beginning of the end of lifetime registration? We are seeing more and more decisions that hold that there must be some periodic review of lifetime registration.

Larry 46:26
Yes, I don’t even know why you need me here. You’ve got this.

Andy 46:30
oh, man, I’m on this, I don’t need you. I was thinking about replacing you with me, I will like split myself up and use a voice changer. And I’ll just go back and forth by myself.

Larry 46:38
That would be the way to do it. But even though I have not thoroughly analyzed this, it’s a phenomenal decision. It is building the body of case law we just talked about from South Carolina. We had a patron mention about Pennsylvania. We’re seeing this happening. And I’m hesitant to say this but in my less than thorough reading, I didn’t see the compelling evidence of the cruel and unusual nature of the punishment. I’m not saying it’s not there, I didn’t spot it. So I’d like to come back to this probably in the next week or the episode after. I can go through it more thoroughly and see if the evidence is there because calling something and cruel and unusual doesn’t meet that very tough test that the Constitution has. And as we’ve said before, if electrocuting people and putting them in the gas chamber, and firing squads is not cruel and unusual punishment, most things shy of that is difficult to meet that standard. But on the other hand, since we didn’t have registration schemes in colonial times, maybe this is cruel and unusual punishment. I just don’t know, I’d like to see, I’d like to analyze what evidence they had. The frightening thing to me is the judge Matsch decision, where he found that Colorado’s registration scheme was cruel and unusual. And I said at the time, the evidence just isn’t there to support this and guess what? The 10th circuit flipped him. Now this is the state Supreme Court. So we don’t have the 10th circuit to flip, that will not be a factor here. The only factor would be here is if they wanted to take this to the US Supreme Court on petition for cert. And I don’t know if they would do that or not. I think it’s less likely on this particular case because there’s more sympathy for juvenile offenders. I don’t think that there would be the outrage that there would be, there’s not as many of them, there’s not 14,000, or whatever that number is in South Carolina. And the outrage against juveniles will not be as bad. So, if they’re considering a cert petition, the public pressure may be far less, but I truly don’t know.

Andy 48:52
This seems to be to me a very distinguished line between what a child psychologist would say, and I’m probably going to get the exact term of the person that would be identifying, like, is it a psychologists, sociologist? Forgive me on not having that right term versus politicians and public outreach. That the social scientists would say that children, their brains aren’t developed. They shouldn’t necessarily be held accountable for life for someone they did when they were a kid. Then but politicians, they write laws that put people on the registry, as young as what, like 10 and 12 years old, and then depending on the state, then they’re on the registry for life. And then they get reelected because they’re keeping the kids safe, even though there’s no evidence or anything of the sort that would back it up. And that to me, there’s just a very distinguished line there – a very hard line between one side of the sociologists and psychologists versus politicians.

Larry 49:54
Well, there is. But the question I would ask you, and I hate to answer questions with questions. Are courts intended to be policymakers? Does the Colorado Supreme Court have the right to nullify the will of the people absent overwhelming evidence. Remember, the standard for overturning a law that’s presumed constitutional is clear and convincing and overwhelming evidence depending on the jurisdiction, but it has to be asked to be compelling evidence. A judge not liking something and thinking there’s a better way to do it does not render something unconstitutional. That’s what they elected those people that go to Denver to do. So they need strong evidence that this is cruel and unusual punishment. I think they’ve got the evidence that it’s punishment. That I think exists. All the disabilities & restraints, I think are clearly discernible. In the opinion, they went through all the local restrictions, there are no restrictions on where a PFR can live in Colorado imposed by the state. But they went through dozens of them or however many there were of local restrictions that are imposed, that directly flow from being required to register. That is a clear amount of disability & restraint, but cruel and unusual punishment is a very tough standard to meet. And I don’t think that most people would want to delegate their lawmaking to judges. They would find that most revolting. Remember, we want judges to interpret the law, not make the law.

Andy 51:31
And just to hammer home a point. Judge Matsch in Colorado, they did all that on a shoestring budget without any, or at least minimal I think it was, any expert witness testimony like for sociologists, neuroscientists, pick your denomination there. Is that right, what I’m hearing you say?

Larry 51:51
That’s what happened in the Matsch case. I’m not sure that happened this case. The opinion, I didn’t spend enough time on it from the time it came out. I don’t know what evidence they had. But in my limited review, I did not see the compelling evidence. I’m hoping it actually is there.

Andy 52:09
And we need that so that we don’t we don’t do summary judgment, where there’s no discovery, and there’s no evidence presented, and then people have the ability to go kick it up to the next court up. And then there’s no discovery, there’s no chance to go back and review it right?

Larry 52:22
That is correct. In this case, I do not know. I hope there is a strong evidentiary record that shows the cruel nature of this. I’m afraid there might not be and I realize I’m going on a limb a little bit because people get a little bit depressed when I say things, but I just have to look at what I have and right now, I didn’t see it. So those who read all 50 or 60 pages, or however many it is, please point it out. And we’ll come back to this next episode.

Andy 52:55
Well, help me out with one other thing before we jump out of here, we are now starting to run a hair long. Is there… like the South Carolina case I don’t think came up on anybody’s radar until Hey, the Supreme Court said this thing. But do we have some level of like… Teresa has a background in, this she’s a PhD. Do we have people that can then help with these briefs, these cases that are going out that we could just deposit them into these cases? I don’t know if I’m asking the right kind of question, that you can help explain it out. Almost like a psychologist sociologist on retainer to help with when these cases go out, provided we know about them.

Larry 53:37
That would be that the key if we know about them at the trial court level. You really don’t get to build an evidentiary record on appeal. That’s what people don’t understand. The appellate court is reviewing the record, and they’re interpreting the law. And this case at the Supreme Court, the facts are already handed to them. And that consternates people to know that the Supreme Court doesn’t develop tax. They look at the facts as they’re handed to them.

Andy 53:59
Teresa honed in the term just as expert witnesses. Is that right person that would provide… I mean, are these amicus briefs. Is that the right term? That we’re friends of the court things is that who a Teresa-type person would submit to go along with these things, or is there even a higher evidence evidentiary standard?

Larry 54:19
You’d want to get it in at the trial court level. The amicus briefs are normally at the appellate level. But we we sometimes try to weave things in an amicus brief that was not a part of the record. That’s the whole beauty of an amicus for another court. In an amicus brief, you can sometimes get evidence in that was not gotten in at trial. But the best place is to have a budget and to develop the record at trial.

Andy 54:44
Okay, I think we’re done, Larry, I think. is there anything else that we need to go over before we jump out of here?

Larry 54:51
Other than our new patrons and our beautiful programs that are coming in the future, this is going to get better and better.

Andy 55:00
I’m glad to hear that I’m really happy. We had a very lively group in chat tonight night. I thank you all so very much. These are patrons and I’m they’re very near and dear to my heart. They’re all my good friends. Some of them I’ve met personally, and I love you all very much. Thank you all for hanging out. And I appreciate it because it’s a Saturday night. So you know, like, what else you’re going to do on a Saturday night, but come hang out with us. Of course, we’re the best gig in town. But we did get a new patron. So Robert, if you send a message to you over on Patreon, be sure to link your Patreon account over on the discord side, and then you can come hang out with us on Saturday nights also. So Robert, again, thank you very much for becoming a new patron. No new mail subscribers, Larry, and I’m sad to hear that one.

Larry 55:41
I am, but we’re getting lots of inquiries for sample transcripts. So they’re coming.

Andy 55:46
That’s pretty awesome. Otherwise, everyone, please feel free to go and check out the show notes, that has you can get a transcript of the show. If you want to like check out some words and things that I flubbed up. You can find all of that over at registry matters.co. Feel free to leave voicemail like Jeff did at 747-227-4477. Send emails at registrymatterscast@gmail.com and as I already said, support the podcast over at patreon.com/registrymatters. Follow us on Twitter, YouTube, we even have a Facebook page. Follow us on all those places, and I so very much appreciate it. Larry, you are the bomb. You are my hero, and you are the great explainer. Thank you so much.

Larry 56:26
I appreciate you having me back again this week.

Andy 56:30
Of course, of course, of course. Wouldn’t have anybody else. So have a great Fourth of July weekend. By the time most of you are hearing this, it will be after the Fourth. But I hope you all had a great time. Stay safe and be happy and stay cool. Larry, thanks again. Talk to you soon.

Larry 56:45
Good night.

You’ve been listening to FYP.


Transcript of RM182: “F#@! Cheer” is Protected Speech says SCOTUS

Andy 00:00
We’d like to thank our patrons for supporting this episode of registry matters. Recording live from fyp Studios, east and west and West times to I guess, transmitting across the internet. This is Episode 182 of registry matters. Larry, you know what I was here last week? I was sitting right here waiting for you, you people. And you never showed up what happened last week?

Larry 00:22
I celebrated my 170/7 birthday.

Andy 00:26
Does that make you old enough to have served in the Lincoln administration?

Larry 00:30
Well, actually it does. I was the youngest Deputy Secretary of War that this country has ever had.

Andy 00:36
Wow, that’s impressive. Good. Good for you. Let’s, let’s look, I won’t even beat around the bush. We were super busy. Last week, there was I produced the conference that in our cell had last week. So time was really tight. It was your birthday. And then also it was also Father’s Day. So we just took the weekend off. Sorry for people that missed it. Last week, I got a bunch of messages from people saying, Oh, I didn’t get the podcast yet. And like sorry, we didn’t record one. But because of that, so we have extra content this week from stuff that may have rolled over from last week. And on top of it all, we have a guest joining us this week, something that I’ve been interested in getting on for quite quite some time, but haven’t ever gotten around to it. We have met who is the outspoken defender joining us. Welcome Matt, how are you tonight? I’m doing well. Thank

Unknown Speaker 01:22
you for having me. I’m excited to be here.

Andy 01:26
Awesome. Do me Do me a favor? Can you give me so I’ve been found maybe how long? Have you been on YouTube for like a year, maybe 18 months or so that you’ve had some videos that were you were walking down the street saying I’m trying to apply for a job? Yeah,

Unknown Speaker 01:40
I think it’s been about a year, I think some of the first videos that I did was me complaining more. And it’s it’s kind of morphed, but I think it’s been about a year and then I that I had a break in there. But it’s been about a year. So let’s Okay, the first,

Andy 01:56
what is your What is your? Yeah, somewhere in that ballpark. I just remember seeing you walking down the street. I don’t know where you were. But you would say that you were going on a job interview. And then you’d follow up and saying whether it went good or bad. You did a video that we even covered on the podcast where you were calling around to apartment complexes, asking if they would take what we call pfrs, which is person first a register? And so how did you decide to get things going?

Unknown Speaker 02:26
With the YouTube channel? The whole thing? Wow. Yeah, you know, it’s it’s been a thought of mine for I’ve been on the registry since 2012. And I’ve always been kind of an ambitious person. And I’ve always had a problem with people automatically assuming that people are forced to register are dangerous, they can’t be around children, you know, and all this and, and, you know, throughout the years, I’ve thought maybe it might be interesting, you know, am I brave enough to do a YouTube channel about a registrant like the Day in the Life kind of you know, that the experiences? And I don’t? I mean, I don’t think it’s, it may have been done before, I don’t know. But that’s, you know, that was kind of my thought, and I didn’t do anything at the time, you know, I was married, you know, in a few years after I got out of incarceration. And, you know, I was focusing on different things, but it was always thought in my head. And then when I moved up to the Pacific Northwest, I found myself to be in a good situation, I’m single. And what I mean by that is I’m not affecting, like my family so much, you know, so I’m single. And I just like, you know, what, I’m just gonna start this, and I didn’t start talking about my experiences. And that’s just how it started. I did it for a few months. And then I had to move and life got crazy for a little bit for about five or six months, I didn’t do any videos. And then out of the blue, I logged into my YouTube account and saw that I had a several 100 followers. I’m like, wow. And so then I just started doing more videos. That’s kind of how it all started.

Andy 04:06
Excellent. And what I think is super interesting. And certainly, Larry chime in, is that, where you’re very much focused on the stigma side of how are we going about living our lives. And while that’s certainly important, Larry is like superduper focused on policy, and I’m much more like a data nerd kind of person. And I’m more interested in things on that side of things of like, how did we get here? And how could we make it better? And I think that the two of our programs could coincide and happy spaces without a whole lot of conflict necessarily. What is that fairly accurately?

Larry 04:44
I think so I would be I’d be delighted if we could figure out a way to work and collaboration.

Andy 04:51
We’re gonna say, Matt.

Unknown Speaker 04:52
Well, I think you’re right. I you know, from time to time, I do talk about different laws and restrictions and and that’s all In combination with, you know, the rejection, social ostracism and things like that I should have been a sociologist, I think or a psychologist, because it’s just a fascinating to me on how these laws and restrictions have come about, and the thinking of people that create these laws that make things worse. And so that’s what I’ve been focusing more on, you know, especially housing and employment. And maybe because those two topics have really affected me personally, I’m sitting here, and I’m not trying to whine or anything, but, you know, it’s been hard to find employment and and we’re looking at definitely, my offense was in 2006.

Andy 05:44
So, yeah, totally, totally. All right, I think, is there anything else you want to add before we start running through all this stuff? Is there anything else that you want to share? Like, could you really quickly give me a website or YouTube channel that people can go to to find your stuff? I want you to hear for the whole program to chime in with any thoughts that you have as we’re going through.

Unknown Speaker 06:07
Yeah, sure. If they if people want to learn more about me and what I’ve been doing and all the resources, you can go to the website, it’s the outspoken offender calm. Okay, cool.

Andy 06:20
All right. Well, Larry, anything before we run things down.

Larry 06:23
Let’s roll this train.

Andy 06:26
Excellent. First thing that I wanted, I found actually over on our Discord server, someone posted a little comic strip, let me make sure that I leave this thing up there for a minute. Where to go? There it is. Um, it says there’s a little comic strip that’s got four panels that says, hey, did you see now that if you say offensive things about certain religious sects, they register your name on some list? Really? Yep. You become a registered sex offender. Alright, that was maybe a bad joke, but it was a joke nonetheless. And it had our word in there. Should we continue? Larry, do you have something else? Oh, let’s roll the train. Um, you found us a little clip. This is a this is post the show Vin sentencing which I don’t think you thought he would get 22 and a half years. But Chevron with Derek Chauvin, the cop that put his knee and George Floyd’s neck for nine and a half minutes. He was sentenced to 22 and a half years that just came out in the last couple of days. Do any comments on that?

Larry 07:29
Sure, do. I, I did not believe that he would be sent at selenia Lee, I think I’ve poopoo the idea that his defense attorney strategy was good. In fact, I criticized it harshly that he blamed the system for what Mr. Shogun did, I was very disappointed. And I said, emphatically, if I had been consulted with him, I would have not advised that strategy. I think now we can see that that strategy was not terribly effective. But in terms of what he was going to get, I figured he would get a harsh sentence. But 22 and a half years is adequate. I think there will be people who will think it’s not nearly enough, but he’s going to be in solitary confinement. for his safety, probably for the entire time. He’s incarcerated as a very harsh sentence. But wait,

Andy 08:17
that would be a long time to be in Solitaire, that would be a brutal amount of time to be in solitary.

Larry 08:22
Well, he could conceivably be out after 15 years. But that’s a brutal amount of time. But we do have I want to make some comments about the attorney general who, who directed the prosecution team on this, and we got a little clip here from 60 minutes to there. I’d like to play.

Unknown Speaker 08:35
Alright, hopefully my tech will work. Why would this officer assault? George Floyd? Well, that’s a question we’ve spent a lot of time asking ourselves. And

Andy 08:51
all we could come up with is what we can divine from his body language in his demeanor. And what we saw is that the crowd was demanding that he get up and he was staring right back at them defiantly. You don’t tell me what to do. I do what clipped always says I do what I want. That is kind of amazing that that would be the statement from the police.

Larry 09:19
So yes, he he, he said emphatically beyond that, that you people don’t tell me what to do. And that was my point that that clip is in fact, we people do tell you what to do. You’re an employee of the people that you serve in the police capacity of law enforcement capacity. And we in fact, do and should tell you what to do. Now, through recent history, we’ve abdicated that responsibility. And we’ve allowed the police department to decide what they’re going to do to decide what equipment they’re going to use to decide the tactics they’re going to employ to decide how they’re going to interact with the public. And now I think that’s beginning to finally change. The citizens are beginning to reassert their control over the police. And I believe this is potentially a 911 moment. And I’ll explain that prior to 911. airline management, emphatically trade their crew and personnel not to intervene. Particularly going back to the 1960s. When we had a lot of hijackings to Cuba and those hijackings went on till the 70s until aviation security increased. They went to Cuba, they played there, paid the ransom, they returned and everybody was safe. And that was what management is still, in terms of corporate responsibility, we do not become violent. We do what we’re told, well, after 911, that all changed. I think now that for the first time in Minnesota History, according to the ag now that an officer has been convicted, and given a reasonably long prison sentence, and the crowd sees that their failure to intervene resulted in the loss of a man’s life because his life was snuffed out by knee on his neck. For I think 17 or 27 times he said, I can’t breathe. I believe now that perhaps the people will do what they have done many times since 911. They will actually intervene if the officer doesn’t take the knee off of the back off of the bag. I believe that people will

Andy 11:18
met. Let me ask you a quick question. Can you imagine if somebody in the crowd would have done some charging and tackle Chauvin while he was doing that? Can you imagine what the response would have been from the police? If what I’m sorry, what was that? If somebody in the in the crowd there would have charged after him and tackled him to get off of George Floyd back. Can you imagine what the response from the police would have been? Oh, yeah, I mean, I’m thinking of I’m thinking of a Rodney King kind of beating.

Unknown Speaker 11:51
Yes, definitely. I mean, why? I don’t know if I was there. I say to myself, if I was there witnessing I would have if I heard that guy can’t breathe, I would I would definitely have probably stepped up. I wouldn’t have, you know, probably tackled the police officer or anything. But I would have, I would have liked to think that I would have said something if I was there.

Larry 12:13
And people did in fact, say something. They said get off I have But did he have to file I looked at them and said I will not get off of them. You don’t view people don’t tell me what to do. And and that’s why I’m saying I believe this was a game changer, potentially. I believe that the people are recognizing that if you don’t intervene, someone could die. And at the time that this started, there weren’t that many options there. Now, they would have called it a massive amount. If had there been citizen intervention, they would have called it a massive amount of resources. And there would have been a brutal put down. Absolutely. And we would not have known that if they had saved a man’s life. We wouldn’t have known what was happening. But now that people see that failure to intervene results in loss of life, I believe that there will intervene just like they intervene on aircraft. Now, when there’s a disturbance, they make sure that they don’t get flown into Berta. They become infernals after after what happened in 911.

Andy 13:02
Yeah, all right. Larry, should we move over to the question from from Brent?

Larry 13:08
Let’s do it.

Andy 13:10
Alright, here we go. This question from Brent.

Unknown Speaker 13:13
Hey, Larry. And Andy, I have a question for you people. So I had a relative that was arrested last Friday, I believe, by the FBI. And they refused to tell us where they were taking him. Eventually, we tracked him down and found that he was staying in the county jail. And we were wondering when he’s gonna get bonded out or, you know, bailed out, because, you know, they’re holding him. And there’s a detention hearing scheduled June 29. The change, or sorry, the charge that he’s got, he’s got two charges, possession and or receipt and or distribution and possession. Can you explain what this detention hearing is? And what we should expect? Because I mean, shouldn’t he just get bond? So anyway, thanks, you guys. I listened to you every week and appreciate what you do. And fyp.

Andy 14:14
Wow, that’s complicated there. What Where are you going with this?

Larry 14:18
Well, I thought since it is sexual related offense, and it’s federal, like it was just to talk a little bit about the bail system and the federal federal government has, they were early on and, and federally they reformed bail in 1964 and again in 1984. The 1984 bail Reform Act is what we’re going to discuss. And, in theory, the reforms done at 84 ended the practice of cash bail and mandated fan to be released on his or her own personal recognizance. Unfortunately, as with most laws, this practice has not has not worked out as the people who proposed and advocated it. had had I had hoped And the detention hearing he’s mentioned is the provision of the bail Reform Act of 1984. And since I don’t know the specifics of this case, I would be hesitant to say much, but I can say the fact that the government is seeking detention is not a good thing. It means that they do not want him to be released pending trial and under the bail Reform Act, the preferred method is personal recognizance. And if they don’t get personal recognizance, then there are other factors in play. Because the detention hearing is required in cases involving violence. That is not a violent crime, including offenses for the maximum sentences life imprisonment or death. That doesn’t apply in either either of these charges, or insert drug offenses for the maximum sentences 10 years or more. None of that applies. But now this possession and distribution, he could be facing more than 10 years, as the maximum says. But under that, under the bail Reform Act, a hearing is required for those sort defendants and include those who have multiple convictions. But a hearing can be held if the government requests pre trial detention, which is apparently what they’ve done in this case. And they have to argue that there’s a serious risk that the defendant will flee, or where it appears that the defendant will obstruct or attempt to obstruct justice or tamper with witnesses or jurors. If bail is denied at this case, on the 29th. The judge must issue written findings of why the reasons for the pretrial detention and that order is immediately appealable. Now this is where I get doom and gloomy. I have seen a number of those orders appealed. And I do not think in my memory, I can come up with one word they detention has been overturned. So although it is appealable directly to the circuit court, you don’t win those appeals. So I would suggest in this case that you do everything you can to cooperate with the attorney, that should be trying to put together a release plan for the accused. And that means answering your telephones, because the people at pre trial service may be calling the people at the Federal Public Defender’s Office may be calling and there might be phone numbers on your phone that you do not recognize. But there’s only a very short period of time. And you need to get all the information to these people that so that they can make a decision and make the best case on the 29th for the judge. That’s what I would recommend.

Andy 17:24
I gotcha. Hang on one second. Larry. Matt got dumped out. He lost his power. Well, crap, that sucks. Our guest has lost power. He’s, I guess this is the heat wave. He’s over on the west coast, you can speak to that. So in his area, I guess they’re doing rolling blackouts. So is marijuana.

Larry 17:44
Now you have to admit that That’s funny.

Andy 17:46
I mean, considering like the time that we’re recording, it’s like, hey, at this time and like, shit, the power goes out. All right. Well, we will continue. Hopefully he will come back and we will get his comments and things as we roll. Well, all these bail bond thing hearings, it’s pretty complicated, convoluted, and very the word is esoteric, because it’s super specific. To you have to be an expert in this field. It’s not just stuff that the general population knows.

Larry 18:16
That is correct. And his family’s thinking in terms of Jessica with that posted cash bond that doesn’t happen the federal system, he’ll be released on his personal recognizance, or he’ll be released to a halfway house, or he’ll be released to home detention with electronic monitoring, or he’ll sit in jail. Those are his options. And since the government is seeking pretrial detention, by requesting this hearing, because he’s not in that group of mandated hearing, as far as what I could see from the criteria, that means that they do not want him out.

Andy 18:46
Yeah, definitely. I don’t think they don’t want anybody out there. They want to if they everyone were locked up, then there would be no crime on the streets.

Larry 18:54
You do have a point there.

Andy 18:57
All right. Moving on to a question from Brian in discord, it says, Andy, I seem to remember Larry having a very thoughtful explanation of the comparison between this and IML along with the implicant implications, or lack thereof if this fails. Dad is from the south carolina decision. I think, if it’s possible to revisit this on Saturday, it seems to me that if this is allowed to stand, the states will pick this up broadly. But if it fails, then having our passports marked in this way could be impacted. Or maybe it just falls back to the state may Mark any other of their official documents as they see fit.

Larry 19:34
I’m not clear on what this is that he’s talking about.

Andy 19:38
I’m kind of trying to remember to we talked about something recently with something being marked didn’t with driver’s license, we’re being marked. Did we talk about that recently,

Larry 19:48
but we have talked about it recently, Louisiana has has had like that’s what it was that they couldn’t mark the licenses and the way that they were marking them but that decision did not support That you can’t mark them at all, just not the way they were doing.

Andy 20:03
Right. Okay, that’s totally what it was. And Brian is from Louisiana and he was on briefly, but he’s he works off short and has no bandwidth to receive the podcast when we record it live he but he always shows up and tries. But yeah, so that’s what he’s talking about the recent Louisiana case.

Larry 20:17
While this I think I’ll recall, I think the legislation to, to mark them again died. I think that it is not a threat at this particular session, if I remember right, I think that it died.

Andy 20:29
So and his question is that you having a very thoughtful explanation of the comparison between this and IML, along with the implications, or the lack thereof, if it fails, and you’re saying that it did fail? Right,

Larry 20:40
that proposal, as I understand it did fail. But people, please understand. These folks don’t give up. The legislature, Louisiana will convene again. And the same person that made the proposal, if he or she is still in office, they’re likely to bring this proposal back, they don’t suddenly have an epiphany and say, Gee, I had that wrong, I should never have offered that bill. Oftentimes, it takes many years to pass legislation, very few things pass the first effort, they will bring that back again, I would I would not take your guard down, you need to be in tune with what they’re doing in Baton Rouge, because they’re not going to give up after one at him.

Andy 21:16
As I recall it, if we do talk about IML. The I can’t remember Smith as the name I remember from New Jersey, that got introduced a number of times until it made it through finally.

Larry 21:30
Correct. He he he proposed that probably for a decade.

Andy 21:36
Okay. He was worried like almost his whole purpose of being in the Senate is to try and work that try and get that legislation.

Larry 21:46
He was actually a house member. But yes, he did that for you. It typically takes many years to pass legislation. There has to be something really enormous that passes on a first attempt, like the relief for the COVID deal. That was something but normal things tax reform, How many years did it take for the tax bill that they passed in 2017. That Trump side, I’m not saying one way or the other what my position is. But that didn’t happen overnight. They have been advocating those who believe we can continue to cut taxes. They they work on that that’s what they do. They believe that you’ve cut cut cut taxes, but that doesn’t mean every time you put in a tax reduction proposal, it passes, there are people who believe you ought to raise taxes there, there’s going to be proposals in this administration to raise capital gains and taxes on certain people. Likely most of those won’t pass, they will bring them back, they won’t suddenly after one failure said, Well, we had that all wrong. Of course, we shouldn’t try that. Again, they will come back and try to get just as people who want to mark driver’s licenses, we’ll try that again.

Andy 22:52
Definitely, let’s move over to this quick question says is there any way to create a class action lawsuit representing the spouses of pfrs that have lost their jobs or been forced to remove etc, because of their spouses status on the registry? So that would be the we people, and then our spouses, are having trop problems with jobs or where they live, etc? I think we’ve talked about this, but what is your stance on? Why don’t our friends family, etc file to get together to try and make some sort of class action lawsuit to to do something to make the lives their lives easier, but they shouldn’t be punished for being associated with us?

Larry 23:33
Well, I agree with that, in part, I’m not a big fan of class action lawsuits, they’re too difficult to get a class certified. And they’re too difficult to manage, in most instances, a class action lawsuit, as I’ve said many times before, you don’t just go down to the stationery supplies store and get a big red rubber stamp that says class action and stamp it on a piece of paper and say this is a class action lawsuit. There are a lot of factors that you have to go through hoops to jump through to certify a class of people and we won’t spend a lot of time on it, but you have to have the class certified. And therefore, you can achieve the same objective without a class. And a similar thing was tried in Lewisville, Texas with spouses who were wanting to support a PFR. And there was no word Litchfield to live because of the residence restriction. And they were claiming that that impaired their relationship. That lawsuit was not successful at the trial court. It was not successful. It’s the Fifth Circuit Court of Appeals in New Orleans where Texas resides in the Fifth Circuit. Nor was a cert petition to lose US Supreme Court granted. Now that doesn’t mean that I pronounced a one attempt that it’s a failure. I think there would be potential for development of the right type of lawsuit on behalf of spouses and particularly minor children. I would say spouses and minor children are going to be far more sympathetic litigants than the pfrs themselves. We need to be creative. We need to come up with fun And we need to come up with the right cause of action. That’s not already been foreclosed by adverse decisions. If you were to do a similar case, in Texas, which is within the Fifth Circuit, every state in the Fifth Circuit that has a residence restrictions, is going to essentially be foreclosed by the Duarte decision that was made some years back,

Andy 25:25
China. So what is the angle, so I’m prevented from living at 123 Main Street. And my spouse, time would say, or the landlord property owner says, Now I’m not going to rent to you because of your status. And the spouse then files No, you can’t do that. You can’t restrict where I live, we can’t the landlord go, I’m not restricting you from living there, I’m restricting that person from living there, you can live here all you want.

Larry 25:52
That would be correct in that scenario, but I was thinking more in terms of a difference narrowed would be like your kids saying that they were being emotionally harmed, because their dad could not be on campus to support them, like a normal dad would be. And I think the kid would have standing. And that’s what I’m saying, putting together the right cause of action with the right plaintiffs, that the kid would be a very persuasive plaintiff. When you when you say, hey, Judge, I can’t do these things, it hurts me, it hurts my chances for a scholarship, it hurts my chances for you name it, because my dad’s not able to be a part of my life. That was more what else they identify what your what you came up with.

Andy 26:35
And and that’s, you can’t pick your parents, you can certainly pick your spouse, but you can’t pick your parents. You got to take whatever cards you’re dealt at that time. Let’s see where that is correct?

Larry 26:46
Yep. So I think we I would not rule this out. But the big thing that’s always missing in this is funding folks. litigation drags on for years and years. And it cost gobs of money. And we don’t have gobs of money. But guess who does the defendants that we would be going after do?

Andy 27:06
Right, right, right. Right. Right. Right. Right. And probably, I don’t know about that. On the kids side, if you start suing t school, like a school board or something like that, for not letting the PFR on campus to attend a game or something like you’re suing, that’s that would be a deep pocket, I would imagine.

Larry 27:22
That would be correct. Anytime you’re bringing an action related to the register, you’re going to be fighting deep pockets, either either state, local or federal, there’s going to be deep pockets. The government, whatever entity it is, is going to have far more funding than the average PFR is going to have. So collectively, I know this is a hard word for a lot of people to understand. But this is where we need collective contributions and collective resources. Because the individual is greatly restricted in what they can do. But collectively, we can do a lot of good things working together. What a concept working together. Oh,

Andy 27:53
stop it, stop, stop, stop. Don’t say those crazy things. Let’s move on to this quick question. It says to start a plan to travel to the Caribbean or is it Caribbean, their Caribbean or Caribbean? By shipping for days? This will take place in four months. I have not traveled since leaving the military, which was during the President Obama signed the IMF. I emailed the United States Marshal service, National Sex Offender targeting center, good grief. My email is below and they emailed me back very quickly. I want the group to help me respond to me the email I sent should have been cut and dry. Is there something missing here?

Larry 28:29
With the emails message? Okay.

Andy 28:33
Is it a dumper? Did I grab something wrong?

Larry 28:38
I’m not sure just keep going.

Andy 28:40
Okay. Oh, it says okay. Well, I know Larry may say if you register in one state you have to have to and another. Is that also related to this? Yes. Okay. When When have I said this, but the state I live in says you are no longer required to register. Regardless if Texas has placed you back on the registry. The state conveys that deferred adjudication is deferred, and once off your obligations are no longer in our state. Our definitions, almost like Texas says and that’s from Christian.

Larry 29:10
That’s from Christian in Minnesota. And I just wanted to correct when he said Larry will say if you have to register once that you have to register another. Larry has never said that. Larry has said the opposite. I have said that there are states who have that in their statute. But it’s it’s not me saying that it’s in their statutory scheme. If you have to register at one state you have to register and other In fact, I’ve said that oftentimes those are violative of the Constitution’s Equal Protection Clause. So I’d appreciate that. People when they try to quote me that they actually get it right. We’ve we talked about cases where the Equal Protection Clause has held that you cannot simply require a person to register at one state because they had to register at another state. I think that was recently talked about out of Indiana. But But what the main reason I put this in here is writing to the marshal service is not Really the smart thing to do, what you have probably done now is put yourself in a database you don’t want to be on because I do have the email that they sent back. And they said, By the way, what state? What states are we talking about, give us some specifics. And Texas may be listing him on the registry. But please trust me folks being listed on a registry is not the same thing as being registered. And for some reason, people roll their eyes, they tip their chairs backwards, and they make all kinds of faces when I tell them that when you are registered, you’re reporting in, you’re being fingerprinted. You’re being photographed, you’re being told you can’t be here, you can’t be there, you can’t do this, you must do that. All these things. Texas is not telling him to do any of that stuff. They simply have a historical marker in place that he was there. And the same thing with Florida when you leave Florida after you’ve been registered there. They don’t tell you that you’re restricted in any of your activities. They simply have marked your historical presence. And that’s a historical fact that you were there is it not?

Andy 31:04
Seems like it, there’s that back that you were once in this state, you’re not they’re not saying you’re currently in the state, they’re saying you were once stated that way.

Larry 31:13
That is not the same thing as being registered or having the, the prohibitions associated with registration imposed upon you. My understanding, and I’m qualifying this by saying I don’t know that I have the full understanding. My understanding is if you’re not actively registered in a state, and being listed on a website, if not actively registered, I mean, when you’re actively registered, they have entered you into the NCIC. Whatever the registrar is that’s taking your registration, they put you into the NCIC, and you’re in that database, as a registered person. My understanding is, I don’t know this might not be correct. But that’s what used for international travel notifications are not of the opinion that it’s simply being listed on a website, there are people that are that are, they’re dead, they’re listed on websites, I bet it is a historical fact that they were alive at one time, and they they were registered there, I’m not sure that it works off of the public listings. So in this particular instance, says he’s not registered anywhere, he’s merely listed on the Texas website, I do not believe he has any obligation to report it, the travel because here’s the problem. If you’re not registered, there’s no one to report it to, you have to report it to your registry agency, which transmits it to the marshal service, who transmits it internationally. If you don’t have a register, who would you report the information of the international travel to

Andy 32:42
that you know, there are people are going to go find track down that person go register with

Larry 32:47
our people are going to do what

Andy 32:49
they’re going to go find that the the person that they would go register with and tell them that they’re going to go travel, just like the people in North Carolina that being told they don’t have to register, they go back and go, sure, I don’t have to register, our people are going to go back to that same registration person and say, Hey, I’m going to go on the screws, is there a problem and they’re going to transmit the information?

Larry 33:09
So Well, I think Christian listens to us. And I would be interested to hear what transpires on this, but my fear is he put himself in a position he doesn’t want to be, because it’s those type of communications that causes them to go to law makers and say, Oh, we’ve got a gaping loophole here. Right.

Andy 33:29
All right. So but But back to your point, though, is once you are no longer actively registering, most people I think, is something of a yearly interval, maybe it’s quarterly, maybe it’s every couple years or something like that. Once you don’t have that duty to register, who would you tell you are traveling out of state out of country? Excuse me?

Larry 33:47
I’ve lost it is I’m at a loss to know who you would report the travel to.

Andy 33:52
Super. That’s super bizarre. So now all of a sudden you just sort of become like a normal person again. How weird when did that happen? Or When did you become like a normal person

Larry 34:01
again? so strange.

Andy 34:04
I know. Another question comes in and says I was recently asked what notice is required for NFC travel. This sounds really similar. Ohio requires 20 days advance notice of change of residence, which is defined to include a temporary domiciled occupied for three days or more. I’ve always been of the opinion that includes travel for three days or more. I now have reason to believe either that I’m interpreting this provision too narrowly or the county sheriff’s are not enforcing it correctly. Since we’re talking about Ohio, we were experiencing this when we had the conference there a couple of years back.

Larry 34:38
This was posted on the listserv by an Ohio last week and it generated so many responses that my server crashed. But this is one of those things where we honestly don’t know the answer to it. No one can give you the answer this. The law says that. I didn’t put everything in there but it’s temporary Temporary domiciled it My opinion is that that law was written to encompass when you change your residence, a vacation is not a change of residence. So therefore, I don’t believe there’s a duty to give that notice. I believe the the notice applies 20 days advance notice of a change of residence and visit visiting and other states not a change of residence. But you can read it the way this person’s reading it. And some sheriffs apparently are reading it this way. It’s kind of like the provision in New Mexico law that says you so register within 10 days of being released from a correctional jail, facility or jail. Well, if you’ve been registered all along, and you go into jail for a weekend you bought out Monday morning, that’d be no reason for you to register, because you’re already registered. That was written prior to when we first enacted the registration in 95. It was encompassing the people when they first get convicted and are released from custody. But the sheriff’s here say, well, it’s black letter, it says you are a person, Archie? Yes. You did get released from jail after being arrested for DWI. Did you not? Yes. It says you’re so registered within 10 days, right? Okay. On the 11th day, you’re in violation, they got the recipe for for that or they went convictions? We don’t know the answer to this, we would have to have a precedential case to tell us exactly what the lawmakers meant by this language. And until we have that to sheriff’s guessing. I’m guessing everyone’s guessing because we don’t know.

Andy 36:24
All right. And then just over this came in today was a comment on the registry matters website. And it comes from Episode 181. Lifetime placement on sex offender registry is unconstitutional. They said that’s great. But when will this law extend to all the states? I live in Hawaii, and I plan to use the South Carolina Supreme Court decision to challenge Hawaii’s law. So when will the South Carolina law apply to Hawaii? It may never apply to Hawaii. Oh, so what should a Hawaiian do to help? Sort of? Well, let me let me ask it more directly. Can he use the decision from South Carolina in his in his flight in Hawaii?

Larry 37:11
He could. But he may not have the same facts in Hawaii. What was compelling a South Carolina was that everyone has longed for life and there’s no opportunity for anyone to get off. I don’t believe Hawaii has everyone on for life. Therefore, already, as we start the litigation, we have a whole different scenario, then Hawaii’s registry may not be as debilitating. I can’t know what restraints and disabilities are in existence in all the states. But we’d have to look at how disabling the registry is at one state and the fact that how many people are on for life. If he has a lifetime on Hawaii, and there is no way off. There’s no petition process in Hawaii, then he could cite to that. And it might be somewhat of persuasive authority, but the Hawaii Supreme Court is not obligated to follow that. That’s not that’s not anything binding on them whatsoever.

Andy 38:05
Okay, so what you’re saying, I think, in essence is that South Carolina and Hawaii are different entities, different? sovereigns? Correct. Okay. But because we are united, you wouldn’t use any information from Canada or Mexico, as any sort of statement to say as any sort of precedents to say that you can do this. But if one of the states in the United States doesn’t, it at least gives you some sort of legal ground that you should be past it should be something that you could bring up in another state within the 50 789 states in the United States. You can

Larry 38:46
argue as persuasive authority, if it’s if it’s on point. It may not be on point because of what I just set. It may be that Hawaii doesn’t have a lifetime registry for everybody. It may be Hawaii already offers a petition off process. Those are what wrecked the train in South Carolina.

Andy 39:05
I gotcha. I gotcha. Okay, let’s move on. I have another voicemail message letter that was very cryptic. I don’t know where it came from. But it was just a maybe you got it from from Marcel. Do you know what I’m talking about?

Larry 39:18
Let’s hear it.

Andy 39:19
Okay, I was hoping you would set it up. But we can I’ll just play it because it’s kind of strange.

Unknown Speaker 39:27
Hello, my name is Mark. And I would like to urge you to vote against the Supreme Court packing. And the one where they don’t take away all our guns. I think it’s HR tos 171. Thank you. That’s super bizarre.

Larry 39:48
I wasn’t sure which one you were gonna play. That’s why I didn’t have any comment. That was a message that was received in my day job and the political. Okay, we know that I work in and then As an example of what we get, now, I don’t work for a United States senator. I work for a state senator. And, okay, so so we get this message saying to vote against a really low resolution number that may either be too many digits about Supreme Court packing. And I have no idea what he’s talking about. There’s no voting to be done it at the state level on the Supreme Court, the United States, there’s no proposal in the state to enlarge our supreme court. But what what’s what’s interesting to me is that all of a sudden, even though that person is not very well informed, there’s apparently some undercurrent out there about court packing. And I think it’s hilarious that the number has been at nine for 150 years or so. That’s not in our Constitution, that number is not fixed in the Constitution. Could it be possible folks just consider this? Could it be possible that the reason why the number of cases that the Supreme Court decides each year has dropped so significantly since the 1960s, is because of the complexity of litigation has changed so much since the 1960s? And could it be the age of the justices has gotten so, so advanced? Since the 1960s? Could it be that we actually need more justices to get the work done? I mean, could you open your mind for a moment and not have such skeptical ideas about packing? It might be that it’s time to expand the court after 150 years of being at the magic number of nine, maybe it’s time for it to be at 13? Can we at least just have an intellectual discussion about what the judiciary needs? In terms of resources?

Andy 41:45
I’ve heard a number of programs on this. There’s nothing in the constitution that says whether it’s one Judge 915 38 there’s nothing in there that says how many it is it’s up up to us as the people to identify how many people there are on the court.

Larry 41:59
That is correct. But this is a scare tactic coming from the right from the conservative side. And it’s funny because they packed the courts for four years, including the Supreme Court. And now all of a sudden they’re concerned about what they did. of of packing. But I wouldn’t view it as a packing, I would look at the data I would look at is it time. Periodically, we expand the number of federal judgeships, through, I think of Carter Administration. And in the george HW Bush, there were a significant number of expansions of the number of federal judges and those two presidencies. And as the nation grows, we need more judgeships. If we continue to arrest, we continue to have the same amount of litigation for greater population. You just can’t You can’t run those cases through the stagnant number of judgeships. It could be that it’s time to enlarge that Supreme Court. Folks, keep your mind open. It might be that this is the right thing to do. Don’t assume just because it’s so my calls it packing, that it’s for sinister reasons. It may be for legitimate reasons.

Andy 43:02
And just to pile on top of that, though, Larry, even if they did pack it and make it 400 liberals on the Supreme Court, that does not make the Second Amendment go away. He would still need it to go through legislation and then get ratified by the states. It would take a like beyond an act of Congress to remove the Second Amendment.

Larry 43:22
Well, that’s true, but you could interpret the Second Amendment differently. It was up until recently until the Heller decision, that there was an individual right in the constitution for firearm ownership, it had been interpreted that was throat militia, the Supreme Court and Heller decided to get individual right. So you the interpretation of the Constitution can change and that’s what they fear they, they just know that people are coming for their guns. Of course, no one’s coming for their guns, but they believe that

Andy 43:48
I haven’t heard any buddy say it in those direct terms. Talk about controlling it to some degree more background checks to keep it out of certain kinds of people’s hands. But I haven’t heard anybody say, we’re going to come round up the 300 million guns in the United States.

Larry 44:04
It would be a task that would be impossible. You’d have a shoot out if you tried so you can’t

Andy 44:11
write on ready to be a part of registry matters. Get links at registry matters.co. If you need to be all discreet about it, contact them by email registry matters cast@gmail.com you can call or text a ransom message to 747-227-4477 want to support registry matters on a monthly basis. Head to patreon.com slash registry matters. Not ready to become a patron. Give a five star review at Apple podcasts or Stitcher or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting. without you. We can’t succeed you make it possible, play this voicemail and then we can go do what would be our feature of this memo from judge Mitch for Michigan. Is that right? But I’ll play this voicemail before we hit that.

Unknown Speaker 45:16
Yeah, hi, I’m calling about questions regarding the sheriff requiring specific performances on the part of registers that are not core of the war that is photographed every month, etc. And then publishing pictures and whatnot that are not part of the war. So like there’s a community caretaking. Is that would that be an exception? That is my question. And how can I they’re going to put up the signs and trespass my property without warning. Now I’ve taken coniglio last year was tell them no, they can’t do that. Thank you guys. FYI, be

Andy 45:55
I had a pretty extensive conversation with this person about what is FYI, B. And I was like, no, it’s fyp. And I tried to get him to, to circle himself around and figure what would fit with fyp means without telling him and we couldn’t get there. Have you ever heard of this case called corniglia? I have no help.

Larry 46:15
I have not either. I think that would be a stretch of the caretaker doctrine to put signs in people’s yard. But as we’ve said many times they can do anything until they’re stopped. Right?

Andy 46:29
That seems to be how it goes.

Larry 46:32
We had two lawsuits in two separate counties in Georgia for sheriffs who were putting signs up on Halloween the day before Halloween. Say no trick or treating here. There’s nothing in Georgia law that prohibits people forced to register from having trick or treaters. But the sheriff’s decided they were going to do that. And they were stopped by litigation, at least temporarily. One of the counties agreed to a permanent injunction and settled and the other county took it all the way and it’s still in litigation at City 11th Circuit Court of Appeals. And they initially lost and then they turned that loss into a victory. And now we’re trying to overturn their victory and win that case on appeal. But the answer the question is, yes, they can do that. not legally. But we’d have law enforcement needed legal authority to do things. I think we saw that although episode early in the podcast, I don’t think he had any lawful authority to to extinguish a person’s life. But he did.

Andy 47:30
He definitely did. And so this is this is an individual that I don’t remember how much detail we went into. But the whole thing where we had the realtor on a couple months ago, was prompted by this individual moving in from another state, and trying to it was very forthcoming with his PFR status. And they changed the rule they like pulled the rug out from underneath him. And it looks like the county that he is moving to in a different neighborhood is going that he called and told them that he’s moving into the area, and they said, Hey, we’re gonna put signs up during Halloween and whatnot. And he’s not really happy about moving into this area from that.

Larry 48:10
After the first experience with that county, for the life of the I cannot imagine why even system wanting to live in that counties. It’s a same County.

Andy 48:20
I believe so. And if not, we’re talking in the southeast corner of the state where, unless you made your way all the way up to Savannah, I think everything would be super, super similar as far as population and demographics and all that stuff.

Larry 48:34
Yeah, I can’t explain it.

Andy 48:37
Okay, but you don’t think that in his question about the what is the careness doctrine? Is that what he said,

Larry 48:43
the caretaker, I think it’s a stretch of the caretaker doctrine, to put these sides up. I mean, they can argue that and say they’re doing it as a community caretaker. But that’s really not how it’s generally been interpreted. That’s when you go check on someone, you get a welfare call. We haven’t heard from this person, we’re worried about them, they’re 72 years old, they’re not answering their phone. And then the place will use the caretaker doctrine as a basis for going on the property and entering the property, opening a door to see if it’s unlocked, go in and check it on the person. And they do that without a warrant because they’re, they’re not intending on intruding on the person they’re trying to keep the person safe. Now, the problem with the caretaker doctrine is when they see stuff in plain view while they’re in there.

Andy 49:26
Okay, so maybe like a big pile of cocaine sitting on your coffee table?

Larry 49:30
Yes, then they’ll go back and get a board that will say that they were using the caretaker doctrine to be on your dwelling, they’ll secure the place, they’ll make sure that nobody enters or leaves. And they’ll go back and use the probable cause but which will be just fine, but because they were entering legitimately, and they’ll say that they have reason to believe that because they found all this powder, and it’s based on their trading experience. It’s probably illegal and then they’ll be granted the warrant, then they’ll come take it, run it through the lab and they’ll arrest you for what they saw. That they were in your dwelling for trying to keep you safe.

Andy 50:03
I gotcha. Then Larry, so Okay, let’s cover like, Oh, nevermind. So the feature segment I had it wrong about saying Michigan or something. I’m just I’m recalling something wrong. But you put a you people put in case from the Supreme Court I did hear about this on the news of this girl that made some interesting Snapchat posts and it’s called Ma Ma honey Area School District versus bl and that is a minor by and through her father levy at all. I look, I read all 42 pages. And I even read just justice Thomas’s dissent. He was the only supreme court justice that dissented and I don’t have a single idea why you are wasting our time on this incredibly expensive fyp production to produce. Why are you wasting our time with this? What does it have to do with the ratio

Larry 50:56
while public high school student use and transmitted her Snapchat to her Snapchat friends, vulgar language and gestures criticizing the school and a school’s cheerleading team. And she was a bit disappointed cuz she didn’t make the varsity team as a freshman. And as the court noted, the minor bl did not accept the coach’s decision with good race, particularly because the squad coaches had placed the intern, an intern freshmen on the varsity team. So that’s what this case is about.

Andy 51:25
She just has her her feelings hurt because they put someone else on I guess she’s thinking that she deserves to be on I’m better than that person. And I should have made it on the team. I guess that’s really like, well, the Nexus for her making these posts. Correct. And so the student took speech to student speech took place out of school hours and away from the school campus. In response, the school suspended her for a year from the cheap cheerleading team. And but since we are not in the cheerleading business, what does this case have to do with us?

Larry 51:58
I don’t know why you keep asking me that because the Supreme Court was faced with a significant first amendment issue, which does impact our cause, depending on on the issue that’s raised. The Supreme Court had to decide whether the Court of Appeals for the Third Circuit correctly held at the school’s decision Valley the First Amendment

Andy 52:15
All right, I need you to dig a bit deeper. What did she do exactly?

Larry 52:19
Well, based on what I read, it said she used her smartphone to post two photos on Snapchat, which allows users to post photos I don’t use Snapchat, but that’s what it says. And they disappear after a period of time. The first image posted showed a middle finger race and it bored the cow bore the caption FSU school and FSU, softball and F, cheer, f everything. The second image was blank, but for our caption was read, love how bad another student got told we need a year on JV before we make varsity. And that doesn’t matter. They did what else the caption also contain an upside down smiley emoji. And I don’t know what the significance of that is. And other body Area School students and some who belong to the cheerleading squad, I guess found these found these Snapchat photos, that that’s what that’s what happened. This f stuff, people can figure out what the f bomb is without saying.

Andy 53:21
I imagined so I really, really want to say it really badly. But maybe maybe that would cause us grief on the other side. But so there’s a whole bunch of F words and school softball and cheer and then everything on top of it. I don’t get the blank one with the upset emoji like who would get upset about just having an upside down emoji that they didn’t make varsity? I don’t get that part. But it did say that according to the opinion that at least one of our Snapchat friends took pictures of it pay attention to that part, Larry. So Snapchat, things are supposed to expire after some number of seconds, and they’re gone. But some of the people at our school grabbed screenshots of it. So maybe they do disappear from the application, but people can capture them for longer. It’s important to remember these things. And so some of the members of the cheerleading squad captured them. One of the students who received these photos showed them to her mother, who was a cheerleading squad coach, and the images spread. Several cheerleaders and other students approached the cheerleading coaches visibly upset about the posts. As a result, the school suspended her from cheerleading for a year. How does a case like this get to the Supreme Court? That is actually a really good question. Like who cares about high school cheerleaders in the supreme court? Like how do those two things intersect?

Larry 54:35
Well, because she had a German father and after he exhausted all administrative remedies, he filed a case in federal court challenging the school board’s decision.

Andy 54:44
Because she had like, what what what right? Does she has tried to see the angle of What right does she have to be on the cheerleading squad, and they didn’t squelch her speech. She just had consequences for speech. Um, you can we go there for a minute? Sure. So she doesn’t have a right to be on the on the cheerleading squad at all. And her actions have consequences. her speech wasn’t swelled. She just suffered a consequence for it. Well,

Larry 55:15
the question was like, was that consequence justified? And that’s what this decision is all about.

Andy 55:20
Okay. And so we’re dead did make a proverbial federal case out of it. I noted that the case was decided on motion for summary judgment, Larry, and you always bellyache about summary judgments and pontificate. The cases should be tried to let all the facts get discovered. It sure seems that summary judgment was adequate in this instance, it certainly worked in their in their benefit for the for the girl and her father.

Larry 55:47
But it did indeed work for the student. Unfortunately, it was not so good for the school. And let me quote from their opinion on page 10. bl spoke under circumstances for the school did not stand in local printers and I can explain that later. And there’s a reasonably that Beals parents had delegated to the school officials their own control of BLS behavior at the cocoa hut. Moreover, the vulgarity and Bill Beals posts and compost a message of expression and BLC irritation with and criticism of the school and its surrounding communities. Further, most importantly, the school has presented no evidence of any general effort to prevent students from using vulgarities like the F bomb outside the classroom. Now, remember, in summary judgment, there was no trial. So the evidence was lacking in this case, not retrospectively, if the school board had had contested the summary judgment, possibly, but let’s just keep going. But but right right now, that that’s what happened, there was no evidence.

Andy 56:48
But for me, like a light bulb is going off that she suffered consequences. And then they they fought it, but it made it all the way the Supreme Court and the Supreme Court said, You guys can’t do it that I see in the next paragraph that the court noted that the school argued that it was trying to prevent disruption, if not within the classroom, then within the bounds of the school sponsored extracurricular activity, they we can find no evidence in the record of the sort of substantial disruption of a school activity or threatened harm to the rights of others that much justify the school’s action. That would be the example of if you say the Big B word Bo MB in a theater, you’re probably going to incite some sort of chaos and confusion. And that’s why you can’t say it, I guess you have the right to say it, but there will be consequences for it. And that’s the level of disruption that they’re looking for here. So and since there was no trial, the school was not able to really put forth any evidence of disruption impact of BLS posting. So what should the school What do you think the school should have done? When bl moved for summary judgment?

Larry 57:52
Well, in my opinion, I remember we’re looking through the rearview mirror, but since I have this general belief, that case should be fully developed. They should have objected when BLM moved for summary judgment. And they should have told the judge that there were material facts in dispute, because I’m fairly certain that BLM attorney would not have been willing to stipulate that the speech had been destructive to the school. And since they would not have made that stipulation, there would not have been, there would not have been any evidence to support the school’s assertions in their pleadings. But had you gone to trial? And if they had, in fact, had witnesses to testify a disruptive effect had occurred, then they might have had a different outcome. But remember, they didn’t object to summary judgment, apparently? I don’t know for sure. But they probably didn’t, because I thought that since the schools generally when these cases, as was expected in Smith versus Doe, because everybody knew that you couldn’t apply anything retroactively. But actually, you can. The school probably felt confident that they’re going to win this case, but they didn’t.

Andy 59:00
Can we really drill into this? Is there any parallel to our issue, and will this case support?

Larry 59:08
The case does show that I was wrong that the current Supreme Court is only concerned about corporate speech, because I said that on a podcast one time, clearly this case shows that they’re consistent in supporting an individual’s right to speak as well. Unfortunately, I’m not really certain of how helpful this case will be for our calls. Here we have a school restricting the content of what a student said, that is known as a content based restriction. content based restrictions are the most problematic from a constitutional perspective. And we have a direct action by the government since it was a public funded school. In our case, we’re not fighting content based restrictions, we’re fighting access based restrictions. The social media providers are placing limitations on access to their platforms, which is distinguishable. First, it’s not the government imposing the restriction. Second, it’s not a content based cartel, but of speech and even if it The government imposing the access ban, the legal analysis would be different because their alternative means of speaking. And a content based restriction is saying you cannot say these words. And that’s what the school was telling her, you can’t do the F bomb, you can’t put the middle finger up, you can’t express yourself this way. And that’s different from saying you can’t use this particular vehicle to express yourself.

Andy 1:00:23
Don’t could you make a parallel to as an employee of a company that they to some degree monitor your social media behavior? Is your to some degree, a representative of that company, even for the one person that you work for? I’m sure he doesn’t want you running around, ending up on videos running overnight have some sort of wild party going on that would represent him poorly. So he could say, I don’t like how you act? I’m no longer gonna have you employed. Isn’t that similar?

Larry 1:01:00
I believe that the school had compelling arguments. This was a tough case. And I believe that it could have gone the other way reasonably that day to one decision doesn’t reflect that. But I believe it could have gone the other way, particularly if there’d been a trial in particular, had they been able to show that there was a disruption? Because the Supreme Court did say that even off campus, that speech, this disruptive, bullying, certain types of speeches, speech can be curtailed. But absolutely, when you’re wearing the uniform of the Dallas Cowboys or pick your team, what you do when your everybody knows you. And absolutely, the Cowboys could say, we don’t want you representing us that way, I would think.

Andy 1:01:43
Yeah. Do you think do you think that this case helps us in any way?

Larry 1:01:48
It might, in the right circumstances, we would have to show that the government or an extension of government has prohibited PFR from speaking particular works, not just as PFR is having difficulty being hurt speaking, due to a social media impose ban, the government has to be doing the prohibition, and they have to be if this case, it’s going to help to have to be particular words are being banned. And I’m not sure that that’s happening in the current state anywhere. I don’t know if any PFR is being told you can’t say this or that.

Andy 1:02:23
Interesting, huh. Anything else?

Larry 1:02:26
Before we let this one go? No, are we gonna do this other segment or just pull it over next week? Since our guests last?

Andy 1:02:32
We’re gonna have Oh, he totally, he got an estimated time of turning the power back on and he’s, it’ll be 930. Eastern. So that’s another hour and a half from now before his power walk?

Larry 1:02:42
Well, we could we could do do a abbreviated version or just do this again. Next week. What’s the segment we had planned for you?

Andy 1:02:50
Yeah, I’ve asked him to, to see if he can be on next week. Is there anything else? I have a question that I want to ask you about a patron? But I have a couple other documents here. Is there anything else that you wanted to go over before we before we get to that?

Larry 1:03:04
And no, I’d be glad to try to help with a patron. We always want to help our patrons, particularly this one?

Andy 1:03:10
Yeah, so I got a call. I got a text message. I think it was the it was Friday morning. And it says something to the effect of locked up, come to the county jail where I am and pick up my keys and my wallet and phone. I was like, Oh, crap. So this is a friend of mine that got out in November. Like this is a key point, Larry. And so forgive me, I’m going to ask you for, like, quote, unquote, pseudo legal advice. But I know that you’re not a lawyer. But I’m asking you from strategy because I need to, like let this person know what, what’s what’s possibly going to happen to him. He has a parole violation from Texas, he did an interstate compact over there. And something happened there. And within a month, they are super strict. They’re super jerks over there. And they revoke the rest of his parole, and he did another two or whatever years. So he gets out at Thanksgiving. And there was a phone leftover from that time, and they found an image. And all I know about the image it was as far as I know, it’s an adult, nude image. And probation doesn’t want you to have any sort of material like this. They came in, and it was you know, like six cops deep. They rolled in with the with the cars, lights blaring, whatever. And they come toss the house and they look at the phone and they find this image. And this is now a probation violation. And so he’s been taken down to his county of origin. And I guess in the handful next coming days, we’ll hear from his probation officer, what’s going to happen and what they’re going to do with him and recommend I guess, and then I guess he goes before a judge, and then they decide whether they’re going to revoke some time or send him home or what like what what happens next?

Larry 1:04:46
Well, normally there’s there are two two steps to probation revocation. There’s preliminary revocation hearing to see if it can be worked out without a full blown evidentiary hearing and factual development. Oftentimes, on Minor violations, the probationer would go ahead and concede that they did the violation with some sort of understanding of what the outcome will be, you’re going to get time served and remitted to probation, and sometimes a small amount of incarceration. To the extent that I give legal advice, and I can’t in this case, because I’m not on the supervision of a Georgia attorney, but to the extent I give legal advice, I would tell you to one, that there’s no reason to admit to a violation. If you don’t know what the outcomes going to be. If you’re going to have to take your chances, why do you want to have your head to them on a platter? I mean, that’s just common sense. So what you’re going to want to do is get your good attorney that works in that jurisdiction, you do not need somebody to come in with all guns blazing as an outsider and going to play heavy handed. He’s already a disadvantage. He’s already had a sustained violation of supervision. While he was out of state. It was a different type of supervision, it was paroled, but still, he’s already had a sustained violation, they can bring that into this. And they can say that this is part of a pattern. His best argument, from what little I know would be related to the fact this is an old phone. And if he could show forensically that this, that this photo dates back way previously, there’s not anything new, that it’s not anything since he dealt with an extinguishes last violation, that could carry some weight, I’m not a forensics expert, we would have to hire someone that could that could determine when the image got there. I don’t know if you can even determine if the image has been viewed or anything like that all that’s above my paygrade. But the best thing is a well connected attorney in that county that can go talk to those people and find out how much blood they want. You need to be able to sit down and say, Hey, this guy, he has this image. It’s not all that provocative. What do you want to do about this? Can we come to an agreement, that’s what he needs to do.

Andy 1:06:53
And that’s something I don’t know, I don’t know, if it’s a legal image as an adult, I don’t know if it’s a minor image, I really, he says, he told me where it was, and his description, is of it being an adult image. But I don’t know. And it is an old phone. So I like I’m really fearing the worst that they’re gonna they’re gonna give him some time, whether that’s just a year or two, or he has seven and a half years of paper left. They could they could really put the screws to him, Larry and give him another he’s already done dwelve. They can say, Hey, why don’t you sit down for another six years or something?

Larry 1:07:27
But see, there’s so much we don’t know about this case. We don’t know how bad they want to get him at that county for what I do know, you told me he’s not connected at all, which he doesn’t have any favors Nolan. And being an outsider, that hurts him because they can be hard on him. And there’s no one to have to answer to. But on the other hand, you with a well connected attorney, even though they don’t, he doesn’t have anything that attorney can persuade them. attorneys can be very charming. I mean, I don’t I’m not going to reveal every trick of the trade. But there are ways to convince prosecutors to back off and to be more reasonable. So that’s why it’s important. He have an attorney who deals with this district attorney’s office.

Andy 1:08:11
I will tell you, he’s super anti attorney because he spent a bunch of money in Texas and got a pretty crappy outcome. There’s so many other variables in there, but he spent like 20 grand on an attorney then and still got his parole violated or revoked, whatever. So he’s not real keen on going to spend any money on anybody else, because he’s already got a bad taste in his mouth.

Larry 1:08:32
Well, but the situation was different. In Texas, he was there as a guest. And Texas, all they had to do is establish a minimum very low showing of probable cause a very low showing that he violated supervision.

Andy 1:08:46
And that because he was out of state or because he was on parole,

Larry 1:08:49
because he’s out of state and because it’s on parole, but but Georgia ultimately decided what to do with him. Texas Hold’em made the threshold showing that he had likely violated probation, there was probable cause to believe he violated probation or parole and that he would have been that would have been significant had he been a Texas offender, Georgia was decided what to do to Texas didn’t have any control over how much time he did when he got to Georgia, they only they only sent up there and Georgia dealt with that same thing is gonna happen here

Andy 1:09:14
and Texas, Texas, I said they can no longer be a guest here.

Larry 1:09:18
That is correct. When you go on interstate compact, you agree that you’re going to abide by their rules, and they can add rules to what the state did sent you there. If you don’t like that, when they hand you that paper that says you will accept special conditions you tell them. Look, I will not accept any special conditions other than my court and my state imposed. You can tell them that.

Andy 1:09:40
And you can say that and they’ll say you can’t come here that

Larry 1:09:43
that is correct. That’s what they’ll do. But you don’t have to accept the condition you don’t like.

Andy 1:09:48
So from that violation, then he gets sent back to his county of origin here and goes before a judge and they decided to revoke some time and that could be the same amount. Come again.

Larry 1:10:01
Well, if he doesn’t come to an agreement, then there will be a full blown hearing. If he says, I’m not admitting to anything, then the state will have to put on its case of what the violation is and the evidence that supports it. It’s a different evidentiary standard. There’s a relaxed rules for admissibility of evidence is not beyond a reasonable doubt standard. It’s more likely than not, you know, it’s kind of like the preponderance of evidence standard. And he will, but he will have a judicial hearing with a with a lawyer, Presiding Judge as a lawyer, and that will he will have representation and a likelihood I don’t think they’ll let a revocation hearing go forward without an attorney, but he may have a public defender defender that may not put as much effort into it as a retain attorney. He cannot be sour on what happened in Texas and decide not to have representation at Georgia, that would be a foolish mistake.

Andy 1:10:50
Okay, I gotcha. It’s terrible. It’s terrible. Oh, my God. All right. I think so I’ve been communicating by email with our guests. And, you know, it’s like 1000 degrees over in your neck. It was Did you know that it’s really hot over that way?

Larry 1:11:06
Yes.

Andy 1:11:08
Yeah. And I, he says the Pacific Northwest, so I don’t know specifically where he is. And he said, it’s like, super hot, and they’re doing rolling blackouts. And they cut the power and they won’t be back on for another hour and change. So we will carry all of that content over and we will try and do the skin if it’s next week or sometime after that and get that individual on get Matt, the outspoken offender on a What a mess. But I think we muddle through decently without that. And we are certainly at time anyway, later that we would have had to almost cut that short, also. But I’ll do anything else before we scoot out here.

Larry 1:11:42
No, how do they? How do I support the podcast, we’ve got to get some more YouTube subscribers and some more patrons. So what a lot of people do

Andy 1:11:51
you know what I’m gonna press my little button on the video, let’s see if so I’ll turn off the rotation thing and go back to this one. Ah, wrong button, where to go, where to go to where to go. There it is. So you can press the like and subscribe button there on the YouTube channel. And that will help us get more people to know about us in all of the more ways and you can reach us over at registry matters.co. That is the website. Certainly call in and leave voicemail as some people have done at 747-227-4477. The email is registry matters cast@gmail.com. Now, Larry, one of the voicemails we played tonight was from someone that listens to the podcast that has utilized information for the podcast, but is not a patron. And it kind of chaps my hide a little bit that we are sending out information that people utilize and apparently are benefiting from, and then they don’t come around and support the pockets. So go over to patreon.com slash registry matters and support the show. Any any thoughts on that?

Larry 1:12:52
Well, I would hope that people would see the value but apparently this individual didn’t.

Andy 1:12:57
makes me very sad. But Larry, I hope that you have you are able to stay cool. Put on wet rag on you because it’s dry out there. And I’m sure that helps a lot. If you’re in the humid area. Putting on a wet rag. You’re kind of already living a wet rag. Well, where it’s at, wait

Larry 1:13:11
a minute, it’s broken here. We’re down to our temperatures. It’s only like 8590 here today. Oh,

Andy 1:13:18
only 85 not 105 What did you say was 109 a week or so ago?

Larry 1:13:22
And it was said 105 range? Yeah, but but that way he waves broken. We’re we’re actually in a cooling spell for the next few days.

Andy 1:13:30
Oh, well. Good for you. I think without anything else, Larry, then go over to YouTube and Twitter and all those other places. And you can subscribe, like and share all of our content. And I hope you have a great weekend, Larry, and thank you for all you do. I really appreciate it. Have a great night.

Larry 1:13:47
Thanks for having me back. Always. Bye bye. You’ve been listening to F YP


Transcript RM181: Lifetime Placement on Sex Offender Registry Unconstitutional: SC Supreme Court Rules

Listen to RM181: Lifetime Placement on Sex Offender Registry Unconstitutional: SC Supreme Court Rules
https://www.registrymatters.co/podcast/rm181-lifetime-placement-on-sex-offender-registry-unconstitutional-sc-supreme-court-rules/

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts, fyp. Recording live from FYP Studios, east and west. Transmitting across the internet. This is Episode 181 of Registry Matters. How are you, Larry? Good evening. Welcome.

Larry 00:22
Fantastic, but it is a little bit warm here. My thermometer shows 99.

Andy 00:32
99? Oh my God, that’s pretty damn hot. That’s all but you have what, 2% humidity?

Larry 00:37
Probably in the five to 7% range. I’m guessing.

Andy 00:41
I was being silly. And I’m not far off. Okay, I think it is 99% humidity where I am. And it’s in the it’s probably not in the 90s anymore. It’s in the 80s. So, I’m not sure. I think my temperature might exceed yours. The feel-like temperature.

Larry 00:55
Oh, what do we have going on tonight?

Andy 00:59
Oh, you want me to do this? I was gonna ask you that question.

Larry 01:01
You’re gonna ask me that. Okay.

Andy 01:03
Larry, what do we have going on this evening?

Larry 01:08
Well, we have a landmark case out of South Carolina that we’re going to talk about dealing with PFRs and the constitutionality of the registry. And we have a lead in case we’re going to talk about the arm career crime act or whatever it is, ACCA. we’re going to talk about a Supreme Court decision. And we’ve got a prisoner contribution. And we’ve got a NARSOL member contribution from the website. And I think we’ve got a patron question, and we’ve got all sorts of good things. We’re gonna be here trying to jam pack all this into a one-hour podcast.

Andy 01:47
Very, very well. I think we should probably get going. And let’s go for the Patreon question right out of the bat. This is longtime patron Mike in New Jersey, him and I have been having conversations back and forth lately. And he says, Hey, a quickie for Larry. Can the international Megan’s Law be valid? Shouldn’t something like that go through the treaty process? Super neat question, Larry, that I wanted to, I thought it was good enough to throw on the show.

Larry 02:11
Well, he is correct, if it were treaty, but it isn’t. If it were a treaty between nations. But what this is, as I understand it, and I have never professed myself to be an expert. But on this, as I understand it, this is a model law, that that has been offered to different countries. And if they adopt this, something similar to this, it’s a choice that the nation makes. So, the country of Zimbabwe might not make the same choice of how to implement their version because their technology may be different. Their criminal records keeping may be different, their sentencing schemes may be different. And you would have different variations on the exchange of information. But the international component is that nations have been urged to communicate with one another about people who have been convicted of sexual offenses in order to preclude them from traveling with the intent of engaging in further criminality. And the thought goes that if you have a prior conviction, that that might enhance the odds that you would be engaging in travel for sexual exploitation purposes. That’s the that’s the theory behind it. It’s not a good theory, but that’s the theory behind the international Megan’s law. Okay.

Andy 03:28
I mean, why, why? Let’s see. I’m trying to even dig into this a little bit. So, it’s just a law that got made, but it is something of a reciprocal law, I guess. I mean, is there an equivalent IML type framework, let’s just say in the UK, pick, pick random country, that… the treaty would be some sort of compact between multiple countries agreeing to this thing, and they all have signed on to some sort of thing. Like, we’ve talked, we’ve heard about treaties recently, where it’s the, like the trade treaties and things like that to push back. But so, we created our own IML, then does Germany and UK have their own whatever they would be called IML there to force the notification on that stuff in the other direction?

Larry 04:14
I don’t know which nations have created something that approximates a sharing of information on those convicted of sexual offenses. I don’t know if Germany has such a thing. Countries have, in fact, I was on a flight traveling to a criminal defense lawyers meeting. And I ended up sitting next to a seat of a person who was in the Foreign Service of one of the African nations which name is escaping me. I don’t remember if it was Nigeria or whatever and she asked me what I was doing there. And I told her I was talking about the issues related to our people in the sex offender registry. And she says, unfortunately, that’s coming into our country as well. She said we’re under enormous pressure to crack down and make information available and to receive information, particularly from the more affluent countries, so that we don’t have people come in and doing bad things to our children. And so what I’m what I’m trying to communicate is that the United States is probably to my, to my recollection, the instigator of, of the version of international Megan’s Law that we have. The US has been encouraging other nations to do similar things, to adopt similar laws. How close they are to being the United States, I don’t know. But I know that information is being sought. It’s a two-way flow. We do receive reports from foreign nations about people who have convictions that have similar laws in place. Americans don’t hear a lot about that, because the people who are not allowed in our country, we don’t think a whole lot about. We only think about when we’re being denied entry to another country.

Andy 05:57
Yeah, sure. Okay, Charles says the UK can give a travel ban to the offender if there is a risk, but a judge makes the decision. He says it’s very rare to be used. It’s case by case basis. I’ve got nothing to add to that just relaying it.

Larry 06:11
Well, the United States has no travel ban, you can go anywhere you want to.

Andy 06:14
That’s true. We’re just going to tell where you’re going that you’re coming.

Larry 06:18
That’s correct. There’s nothing in international Megan’s law that prohibits you from traveling. The prerequisite is, though, is the notice if you’re covered. And it’s not even clear who is required to give that notice because of the nuances of our 50 state registered schemes, some don’t have that requirement, and then that it’s not totally clear as to who all must give that notice to, at least to me anyway. But there’s nothing that prohibits you from traveling, you can go anywhere you like. They just may not admit you when you get there.

Andy 06:46
Yeah, yeah. All right. Let’s move over from that. Go ahead. Finish.

Larry 06:51
Yeah, that’s all I’m saying. There’s the people keep saying there’s a travel ban. There isn’t a travel ban. You can go. But what right do you have to enter a foreign nation?

Andy 07:02
Absolutely. Alright, so we’re gonna move over to this, this post, it’s Jeremy in Indiana posted on the NARSOL website. And it says I’m very curious as to what this means. And if it will have any policy effect at all. My eyes did perk up when I saw that ALI, American Law Institute, seven member were judges from different appeals courts around the country, and that their recommendations have been highly regarded by lawmakers in the past. My worry, though, is that RSOs, let’s call them PFRs, are literally the most hated demographic in the entire world. And any effort by any politician to change these laws on this recommendation is going to cause a negative media sensation and potentially be political suicide for those politicians. I’ve asked in the past that NARSOL avoid taking political sides on the spectrum. But this is probably the only time having a democratic majority in Washington might actually benefit. If Republicans were to pass this, the media would crucify them. But since the mass media is controlled by Democrats, they will let this change happen with little fanfare. Unfortunately, with the political divide. I’m a little worried that conservative news outlets may try to crucify the Dems for the same reason. Luckily, the Dems have always been the standard bearers for criminal justice reform, so I do have high hopes. Interesting. I don’t think that the Dems control the media like that, mass media, it’s just don’t think that’s accurate.

Larry 08:24
Well, I don’t agree with that. I liked where he was headed until he got to the part about the republicans would be vilified. First of all, the Republican can’t pass it because they’re not in a majority right now. They don’t have a Senate Majority. So they couldn’t pass it. They would need some democratic votes. But I split with him when he said the Republicans would be vilified. I’m going to widen my challenge. I have had a challenge for a long time that no one has actually answered yet to show me a Democratic candidate vilifying a republican on criminal justice matters on positive reforms. So I’m gonna widen the challenge. Send me a media clip where the Republican Party is being vilified for criminal justice reform. We will play it on this podcast. And we will bash that that media outlet whoever it is, but that’s just simply not true that that the republicans would be bashed if they did that. The media and this is going to cause people to roll their eyes. The media is a reflection device, they don’t generate much of the of the sensationalism. They receive a press release from an organization, or they receive a phone call from an organization or from a candidate or from a party official, whatever, from a citizen. But there’s someone agitating them. They’re not that bright to go out and figure out you know, we’re gonna bash the republicans, we’re going to bash the democrats today. They’re looking for something that will drive ratings, or paper sales or magazine sales and controversy does that They respond. They’re merely a reflection pool of public opinion. And I don’t believe that they shape public opinion as much as people think they do. I think that talk radio does a lot more of the shaping of public opinion. But just standard news reporting, I don’t think shapes public opinion that much.

Andy 10:17
I would agree. And when you move that into the Rachel Maddows and the Tucker’s which are very much just an opinion piece, person, opinion person, that definitely gets people riled up. And that would shape a lot of the public opinion of things. Rush Limbaugh being certainly the biggest example recently deceased.

Larry 10:37
Absolutely. Well, that is for the shaping public opinion have when you have the talk show apparatus, whichever side, which is more dominated by conservatives, by far, but you have lived in the state of Georgia for quite a number of years now. (Andy: Yes) And Georgia did a significant amount of criminal justice reform under two Republican governors, Nathan Deal and more Deal, but somewhat under Purdue, and how much vilification did they get for that?

Andy 11:06
I don’t recall, I went and sat in on a meeting of justice reform people and someone said, Yeah, he’s really big Nathan Deal that is, was really big on giving people second chances. And I was like, really, and I mean, I didn’t know at that point. I was brand new in the movement. But I had never heard of a governor being like pro this or that. I was like, Wow, that’s really neat. I was kind of on board with him as a governor, just at least from that regard.

Larry 11:32
Well, I don’t recall any vilification. Same thing with… the vilification now, we go back to the presidential contest when a former governor of Arkansas ran for President, Mike Huckabee. He did get vilified for his pardons, but he got vilified from within his party. It was his opponents that were seeking the Republican nomination that said that he was too soft on crime. And the media merely reported that. I mean, that was to his opponents. What are they supposed to do not report the news? But he was vilified by his opponents for his… he was pretty generous for handing out sentence commutations and pardons. I mean, I have to give the guy credit. He actually did believe in redemption. I mean, he was one of those born again Christians, and he wore that on his sleeve. But he actually did practice it and the governor’s office. So we have to be fair with him that he believed it and he practiced it.

Andy 12:31
The one other point that I want to make about this is the being news driven or excuse me, like ratings driven, unless you remove that from your business model, then you can report on things in a different fashion, your incentive structure is different. And I would be referring to the PBS NewsHour and NPR, they get their funding mostly from listener donations, and then they have other kinds of sponsorship money, but that takes the whole ratings thing out of the equation that people they provide incredibly, incredibly accurate, non-biased, slightly, I mean, a twinge like pull a hair out of your head that much it’s left biased, but not very much at all. And I’m a big fan.

Larry 13:09
I would think that if you were to poll your audience, you’d find out that most people think that PBS is very liberal bias and that they would not agree with you on that.

Andy 13:20
I know but if you are all the way over to the right than anything left of that you would be “well you’re just a lefty bias person” and the same would go if you’re an NBC watcher, like anything else is going to be right leaning, I’m just saying from a panel that I saw that does this kind of rating thing of where do things fall as far as accuracy and bias. That those two things USA Today I think was very much very highly accurate like a source of news information and also just slightly left bias. Just that that’s what I have researched to find out because I’m very interested in finding an NPR-type thing that’s right leaning and I can’t find anything remotely close to something that would give me a right slant on things that is highly accurate doesn’t scream at people, etc.

Larry 14:04
Well, I agree that I would consider them a reliable source but I’m saying the average person when they think about that, it’s it’s a lefty communists organization,

Andy 14:15
Haha, Yes, I know.

Andy 14:19
Okay, well then let’s move on. I think we’re just here at the main event. I think we’re ready to just jump over into this South Carolina court case?

Larry 14:28
We have we have the listener contributions. From the prisoner to be read.

Andy 14:37
Let me find it real quick. I don’t want to do editing later. I didn’t pull that one up. Let me get that out of the Dropbox folder. To be read. do doo Oh, I do have that pulled up. Sorry to be read. I got it. Um, it says:

Listener Comment
Dear Andy and Larry. This is from a Douglas in a building up in St. Louis Missouri, says I’m writing in response to requests for testimonials on the reliability of transcript arrival that appeared in Episode 178. Recorded 5-22-21. I am a state PFR prisoner in Michigan Department of Corrections and I generally receive the transcript the Friday after it was recorded. Note the date of this letter. Sometimes it may come the following week on Monday or Tuesday. But considering the Michigan Department of Corrections recently started giving us copies of our mail instead of the originals, I would say that the delivery time is excellent. I would like to attest to the reliability of transcript reception, and the information you guys provide to us still on the inside has been greatly appreciated. Thank you. I would also like to subscribe to another six months of the Registry Matters transcripts attached to the envelope sent to the Michigan Department of Corrections disbursement for 36 bucks plus a political Michigan tax… Keep going through that whole section too Larry?

Larry 15:54
I think that we covered the most salient point. But he did mention something about his conviction. And he’s got some post-conviction action going he says that I brought my ineffective assistance of counsel claim before the court. And they actually assigned a state attorney to file it. My claim has merit as my attorneys let me plead to 20 year felonies when I committed a four year felony while having a mental health factor exhibited throughout. If that is anything approximating accuracy, and sometimes there’s a misunderstanding, but if you plead to a crime that didn’t exist, that conviction is void on its face. There has to be subject matter jurisdiction for the court to enter a judgment. If they take a plea for a crime that didn’t happen, then that that conviction is void because there was not subject matter jurisdiction of the court to start with. So, Douglas, I’m very interested in hearing more as this progresses, because there’s not enough information in the letter to tell us precisely what you’re saying. And we don’t have the time on the podcast to really unpack that. But if you plead to something, that’s why they do a factual basis when you’re ready to do a change of plea from not guilty to guilty. That’s why they have a factual basis laid out. So, the prosecution generally will say, on or about this date, the defendant did this within the county of and then they’ll go through laying the foundation. And in violation of this particular section of law, they’ll name the section of the statute that was violated. And at conclusion of that factual basis, the judge will ask the defense attorney, have you discussed this with your client, this plea? Does your client understand? Do you agree that’s a factual basis. That’s not precisely what they’re gonna say. But the judge will ascertain that there is a factual basis, you can’t take a plea unless a crime was committed. Isn’t that amazing that you can’t take a plea unless a crime occurred?

Andy 18:16
I mean, sure, that sounds about right. Doesn’t it?

Larry 18:21
But people say all the time they think that they pled guilty when there was no evidence. When the factual basis is presented, you agree in front of the judge, that there was a factual basis, that a crime did occur. If they cannot lay out a factual basis to support the plea, a plea can’t be accepted.

Andy 18:44
To close out his letter says, By the way, I’m distributing the copies of the past RM transcripts around to other PFR housing units to spread the word and maybe spark some more subscriptions for you. It is difficult because this facility has been on COVID lockdown for what seems like for forever, but I am taking the advice offered in the April/May issue of NARSOL’s, the Digest doing what I can from the inside. Oh, it was nice to read about Michigan’s registry changes in the insider section. The guy who wrote it, James is a good friend of mine and actually helped me file a motion for the court to get the state attorney mentioned about assigned to me and thank you Registry Matters for everything you do. It is appreciated. And thank you very much for all of that, Doug. Very cool.

Larry 19:24
All right. So now we can go to the to the two court cases, we have the Supreme Court of the United States and Borden v. United States which shouldn’t take too terribly long. And then we’re gonna go into the case from the great state of South Carolina.

Andy 19:39
Awesome. And it looks like it’s 69 pages and Larry, I’d like suffered my way through it, including the dissenting opinions, and I see no relevance to this. I think we should just toss it in the garbage. (Larry: Why should we do that?) Because it has no relevance.

Larry 20:00
Well it does have some relevance, it has to do with textual interpretation. And how the conservative block on the court tried to read beyond the text to interpret the ACCA to permit enhanced sentences.

Andy 20:13
Tell me again, what ACCA is, please what the hell is that?

Larry 20:18
Oh, I apologize. Sometimes I forget to explain the acronyms ACCA is the armed career criminal act, which mandates a 15-year minimum sentence for persons found guilty of illegally possessing a firearm who have three or more prior convictions for a, quote, violent felony. The issue before the court was, is a violent felony required by the ACCA in order for a person to be subject to enhancement? The liberals joined the conservatives, two conservative justice Gorsuch and Justice Thomas. And they held that we should actually follow the law that there should be a violent felony before you can be subject because that’s what the language of the law says. Imagine that Andy? Following the law. (Andy: Wait a minute, so they write down that you got to do a thing and then they punish you for not doing a thing?) Right, you have to you have to commit a violent felony and you have to have three or more of them to be subject to the ACCA. And (Andy: okay.) so there’s four conservatives who do not really think that it has to be a violent felony, but two conservatives joined. So those conservatives are justice Gorsuch. And for the first time in recent memory, Justice Thomas found a criminal law that he found something, he found some disagreement with.

Andy 21:36
Alright, so according to the syllabus, petitioner Charles Borden Jr. pleaded guilty to a felony and possession charge and then the government sought to enhance the sentence under the ACCA. One of the three convictions alleged as predicates for the enhancement was reckless, aggravated assault in violation of Tennessee law. Borden argued that this offense is not a violent felony under ACCA elements clause because a mental state of recklessness for conviction. In his view, only purposeful or knowing conduct satisfy the clause demand for use of force against the person of another. By a slim five-four majority, the Supreme Court reversed the lower court’s decision. Okay. So what did the the conservative dissenting judges argue?

Larry 22:26
Well, they argued that three convictions only required a mental state of reckless, which is what was in the Tennessee law. But see reckless is like the accident I had a few weeks ago, that person never left home intending to hurt me.

Andy 22:43
Sure, just distracted or whatever.

Larry 22:45
Yes, he was distracted. So armed career crime act was, was intended and written specifically to require an intentional, violent felony. So therefore, reckless isn’t an intentional, violent felony. I mean, it’s really straightforward. But the reason why I put this in here, and we don’t need to spend a lot of time on it is because, you know, the conservatives pride themselves and how they’re textual, you know, and everything. Well, the text of the law is pretty clear. But they contorted it and they twisted trying to figure out a way to allow for longer prison sentences. So that that’s why I put it in.

Andy 23:26
Alright, and says you if, if you have nothing further than let’s move on to the next case. This case has been talked about quite a bit over the past few days. The name of it is Dennis J. pal Jr. Versus Mark Keel, Chief State Law Enforcement Division and the state of South Carolina appellants. It’s not a super long opinion. So I read it myself. Larry, can you briefly tell us what Mr. Powell, what put Mr. Powell on the registry?

Larry 23:53
I can on February 23, 2008, Powell was arrested for criminal solicitation of a minor under a section of South Carolina law for engaging in anonymous internet chat room conversations which were graphically sexual in nature, with undercover police officer posing as a 12 year old girl. But he didn’t just stop with graphic conversation, which I would argue is protected. But in their final conversation, Powell and the teenage girl arranged to meet at a skating rink in Lexington. Thereafter, he drove by the meeting place and was pulled over by law enforcement at a traffic stop and was subsequently arrested.

Andy 24:33
Sure, I see it’s one of those sting operations. Well, before we get into the details of the case, I know that you have a great angst about statutes dealing with internet communications and graphic conversations. And I also know that you did a deep study of all the solicitation statutes across the United States about 10 years ago, which is a tool you provide attorneys all over the United States. How does South Carolina’s compare and are there constitutional issues with the statute in your opinion?

Larry 25:00
Actually, you’re right. I did do that study. And I think I put it in the folder for anybody who wants to look at it. I’ve got a compendium of all the 50 states. And it was, it was great when I did it, there could have been changes and the laws would have been changed to make them less favorable than they would have been 10 years ago. But actually, their statute is very much constitutional. I wish I could say that it isn’t. But it is very well constructed. And I can’t find any constitutional flaws.

Andy 25:28
No constitutional flaws? Why do we have you here, then? Let’s see here. So what in particular makes their statute better than others, then?

Larry 25:38
Well, if you look at it, well, let’s just read the statute. When you look at section § 16-15-342 Carolina law, a person 18 years of age or older commits the offense of criminal solicitation of a minor if he knowingly contacts or communicates with or attempts to contact or communicate with a person who is under the age of 18. So, let’s stop there for a moment. So he has to knowingly be doing that, communicating or contact a person under 18. So we’ve got the first threshold, we’ve got the, we’ve got the what I talk about as scienter, he has to know that he’s talking to a minor, it can’t be an accident, or a person that he reasonably believes to be under age 18, but it doesn’t stop there. So this is where my graphic argument, you can have graphic conversation, because you can have fantasies, and that’s protected. But he has to do that for the purpose of with the intent of persuading and do the thing or enticing or coercing the person to engage in or participate in a sexual activity as defined in South Carolina law or a violent crime. So therefore, we’ve got the knowing. And then we got the intentional, and we have a clear intent of sexual activity, and sexual activity, it’s not protected speech for the minor. So you’ve just shot all the constitutional issues that I have out the window, because I can fantasize about all the money in the vault. And I can tell you, I wish I had every dollar of it. But I cannot attempt to make any effort to retrieve that money from the vault. But the fantasy is just fine. And so therefore, if you’re having a conversation with someone who’s 12 years old, it’s untasteful. And maybe there should be a law that says you can’t have graphic conversation. And that would be, that would be a different law. But if you’re going to prosecute a person for soliciting, to have sex, you should have to prove that they’re intending to have sex. And that’s what this law requires in South Carolina, so therefore, I would be very challenged to come up with a constitutional argument that would have any chance of success on the construction of this statute. The construction makes it clear that words are not being criminalized. The state must prove that you knowingly communicated with an underage individual and they must prove intent to engage in something illegal. Having a fantasy is not sufficient to convict.

Andy 28:11
I remember hearing that you and I can talk about robbing the bank all we want. But then when somebody goes to rent the van, that’s when things get hairy.

Larry 28:20
Well, we got to be careful how much talk about robbing because then then then again, it’s illegal to rob banks is. So if I’m talking about getting to plan on the actual… If I say, Gee, I wish I had all the money in the bank, that’s not illegal to wish you have the money. But if I say if I start saying I would like to rob the bank, what about you? Then I’m I’m pretty close to a solicitation because you can’t solicit someone to engage in something that would be unlawful if they did it. And I can pretty well assure you that asking you if you would like to do something that’s unlawful, that would put you in jeopardy of prosecution, so I can’t go there. Because I’ve at least done a solicitation.

Andy 29:01
Do you want to rob that bank. I’m just asking, nobody’s listening just between you and me.

Larry 29:06
No, I don’t think so.

Andy 29:09
Ready to be a part of Registry Matters? Get links at registrymatters.co. If you need to be all discreet about it, contact them by email at registrymatterscast@gmail.com. You can call or text a ransom message to (747)227-4477. Want to support Registry Matters on a monthly basis? Head to patreon.com/registrymatters. Not ready to become a patron? Give a five-star review at Apple podcasts for stitcher or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting. Without you, we can’t succeed. You make it possible.

Okay. Well, I noticed that the case was decided on Mr. Powell’s motion for summary judgment. Boy, do you like those. I know you people have generally expressed reservations about summary judgment. So let me rib you on that. So, summary judgment can’t be all bad?

Larry 30:12
You’re correct on all points. We will address summary judgment later on. After we explained the issues. The issues that were in play. This appeal was from the circuit courts grant of summary judgment in favor of Mr. Powell, on his claims and he challenged the internet publication and lifetime registration. And he was granted a summary judgment in his favor. And the Circuit Court, which is the trial court, held that South Carolina’s Registration Act lifetime registration requirement is punitive under the Eighth Amendment and violates his rights to due process and equal protection. The circuit court also determined that SORA does not permit publication of the state Sex Offender Registry on the internet. So, he won in the trial court on both, of two significant claims.

Andy 31:09
I like that internet one. I’m guessing that the state of South Carolina has appealed.

Larry 31:15
They did appeal. That’s how we got here. They did the appeal. Mark Keel, Chief of the State Law Enforcement Division (“SLED”), and the State of South Carolina. And the South Carolina Supreme Court held that SORA lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess risk of reoffending. This means he won on that claim. Unfortunately, he lost on the internet dissemination issue. The Supreme Court held, and that’s the South Korean Supreme Court held that subsection 23-3-490(E) permits the dissemination of the state Sex Offender Registry information on the internet. That that is constitutional, which gets me back to my distaste for summary judgment.

Andy 31:59
Hmm, how so? If they won at the trial court on both issues? Is it the attorney’s fault that the Supreme Court was reversed?

Larry 32:08
Well, not necessarily. They did win at the trial court. But where that comes into the problem. I think if you reflect back to the 10th circuit, when I said, we don’t have evidence to support what Judge Matsch did, you remember that? (Andy: Right. I do. I do.) Okay, well, that’s the same situation here. The trial judge can hate the internet dissemination all he or she wants to. But you have to pull it on evidence to show… see we’ve got a Supreme Court decision in 2003 that says that the state of Connecticut that’s Connecticut, state of Connecticut, Doe versus department of Connecticut, department of public safety… I’ll get it right in a moment. But the Supreme Court has said that, that you have every right to disseminate this information. But see, since 2003, there’s a lot more information being disseminated that wasn’t. The internet has much broader reach than it did in 2003. And it has far more debilitating consequences than it did in 2003. And the required information that’s disseminated is far greater. As the Supreme Court said in 2003, the mere fact that you’re convicted of a sexual offense, it’s already a matter of public record. And the registry is merely disseminating what’s already public. Now 20 years later, 18, 20 years later, we have a whole different scenario. We have the internet disseminating the vehicle you drive, where you work, where your attend school. And I can go on and on with information they disseminate about you. In some instances, your internet identifiers. And different states disseminate different information. And I don’t know exactly what all is disseminated in South Carolina. But in order to develop that, and to show the debilitating effects of this, of that dissemination, you will need a trial unless you could get the state to stipulate that all these all these debilitating conditions exist. And that would be unlikely you’d be able to get them to stipulate to those facts. Therefore, in summary judgment, the record is going to be very thin. And it was very thin.

Andy 34:15
Not only that, the number of people that are on the internet using that as their primary vehicle of getting information is radically different than it was 20, whatever, 19 years ago,

Larry. 34:25
Yep.

Andy 34:29
Um, so where do we go from here? What’s the next step?

Larry 34:37
Well, I think I’ve got, I’ve lost my notes, and I was the one who put these together. So what page are we on here?

Andy 34:44
We are at the very top of the second. So what I’m going to do is I’m going to cite the legal standard for overturning the law. Says the court said, this Court has limited scope of review in cases involving a constitutional challenge to a statute because all statutes are presumed constitutional and, if possible, will be construed to render them valid. And then they said a legislative act will not be declared unconstitutional unless it’s repugnance to the Constitution is clear and beyond a reasonable doubt, and I’m doing that from memory.

Larry 35:18
Well, yeah, that is actually in the opinion and say you’ve got a great memory, or did you read the opinion or both?

Andy 35:25
All of the above

Larry 35:27
All of the above? Well, so you see, I don’t make this stuff up. But we’ve mentioned this legal standard countless times on the podcast. That the presumption goes in favor of the law being constitutional and, I think this is the first time that I’ve seen the term repugnant, is that actually in there? Does it say that? (Andy: Yes, it does, actually.) Okay, so, well, I tell you, I don’t make this stuff up and that is in fact the legal standard. Says that you start with a presumption and the burden is on the challenging party, and it’s a very significant burden that must be overcome.

Andy 36:09
All right, well, South Carolina requires any person regardless of age who has been convicted of an enumerated crime on their list to register as a PFR for life. The Act also provides judges with the discretion to order as a condition of sentencing a person convicted of an offense not listed in the statute to be included in this PFR registry if good cause is shown by the prosecutor. As I read the decision, Larry, the requirement for registration for life with no opportunity for removal is the problem. Do I have that right?

Larry 36:39
You absolutely do. That is precisely what the court said. And I will quote now, notably, SORA does not provide any judicial review for registrants to demonstrate their individual risk recidivism and seek removal from the registry. You don’t really need me here tonight, because it seems like you’ve got this covered. Further the court said we agree with the respondent. And that would be Powell that SORA’s lifetime registration requirement without judicial review violates due process. That’s what the court said.

Andy 37:11
And as I understand it, the 14th amendment provides that no state shall blah, blah, blah, blah, blah, deprive any person of life, liberty, or property without due process of law. All states have a similar clause in their constitution. Explain the significance to me, Larry, of the fact that this case was decided based on the US Constitution, but in the past, you’ve said that some states provide greater protection. I believe that Maryland is one of those. Is that a potential issue here?

Larry 37:39
It is a potential issue. And since the South Carolina constitution, to my knowledge, has not been interpreted to provide greater protections for its citizens than the US Constitution, that means that this case could ultimately be decided by the United States Supreme Court. And that was not the case when you look at the Pennsylvania decision, or the Maryland decision, either one of those. The Supreme Court for those states that you can look at this all you want to but we’re deciding it on our Constitution, and Maryland has that very great clause about no disadvantages can be imposed retroactively. And I can’t recite the clause in Pennsylvania because I was not actively working on that particular challenge. But the Pennsylvania Constitution and the Maryland constitution provide greater protections. New Mexico’s constitution does as well. But since this is a US constitutional question, this opens the door to the United States Supreme Court review.

Andy 38:34
But then, since 2003, Packingham, whatever, we’ve been wanting to get cases to get to the Supreme Court to try and chip away at this stuff. So why is this such a bad thing? Isn’t this what we’ve been trying to get to for so many years?

Larry 38:48
Are you talking about overturning Smith versus Doe?

Andy 38:52
All of the above. Yes, Smith was when I said 2003. That’s what I was referring to Smith versus Doe. And then just all the cases that we try and funnel up there to try and chip away at this whole thing. But so why is this such a bad thing?

Larry 39:03
Well, I don’t know what you mean, when you say the term we, because I certainly have never been a big proponent of getting this issue back before the US Supreme Court. I have little confidence that they would actually render a favorable decision. Why do you think that the Michigan ACLU was so adamantly opposed to Michigan’s, the state of Michigan cert petition in the Does v. Snyder case? If they had been confident of a favorable outcome, they would, they would have not opposed the cert petition. It would have been more money for them for legal fees, and it would have meant that will become the case law of the entire country. They didn’t have that confidence, nor do I.

Andy 39:36
Damn it Larry, there you go again being negative. Let me ask the question differently. Do you expect that the South Carolina will change their law in the next 12 months as the court has recommended?

Larry 39:49
No. I actually don’t think that they will do that. (Andy: Why not?) Well, it’s really not as complicated to explain. The status quo is in place. As a result of this, nothing changes. Mr. Powell gets off the registry, but the status quo will remain in place for the next 12 months, which the Supreme Court extended the legislature an invitation to incorporate a removal process. But there’s no date certain that would compel the legislature to legislate, which would mean taking a political risk that would make things better for PFRs. Can you imagine what would happen to a legislator who dared to risk putting forth a proposal that would allow PFRs to be removed from the registry? How would that go over with the average resident in South Carolina?

Andy 40:37
Well, that puts us back to the other option if they’re not likely to change the law. So this is similar to Michigan, would it not be logical to anticipate a cert petition? Would that not buy them time because they could credibly say that the matter is still in litigation?

Larry 40:51
That’s exactly what it would do. That’s brilliant. That’s exactly what it would do. Because if you’re being afforded a 12 month opportunity to legislate, and you know that legislation is not likely, because you’re not going to support it, as the state attorney general is not likely to support the legislation. That would give them exactly what you said. The credibility would say, well, this matter is still… there’s a Supreme Court cert petition. I think they have in normal circumstances, three months to file it. And I think that’s been extended during the pandemic. I think it’s like a five-month time, so we really won’t know right away if they’re going to file a petition unless they announce that publicly. But it would be more likely that not in my opinion that they would file cert petition.

Andy 41:34
So Larry, I’ve legit just had a like terrible flashback way back to the case that was decided below and that it would be an issue that this case was decided on motion for summary judgment, which means that there’s no trial to develop facts below. Will that be a potential problem if SCOTUS then goes and decides the case? Oh, I see. Yeah.

Larry 41:55
It would, it would, it would potentially be, but I don’t think it would be as big a risk in this particular instance, because the issue that would be going up did not need as much factual development, because unless they were to seek cert on the internet component that they lost, which I don’t… The winning party Powell, he’s not going to seek cert. He’s not going to file for cert, right? He’s happy, he’s off registry. So, he’s not going to file. Well, that issue that was not decided to his favor, is no longer relevant here. This is going to be a state of South Carolina cert petition if there were to be one. And they’re not going to ask the Supreme Court to review an issue that they won. So, the issue they lost is where they’re going to be asking for review on, which is the lifetime registration without due process. And this is really a straightforward issue. The Supreme Court would be deciding not whether persons required to register for life, it is whether they can be required to register for life without any due process, or with the due process that was afforded them in their original conviction, is that sufficient? And the South Carolina Supreme Court has now recognized that registration implicates a Liberty interest, and a person cannot be deprived of life, liberty, or property without due process of law. The question would be was the original due process sufficient for lifetime registration and deprivation of that Liberty? And I have no idea what the Supremes would say on that. I’m very concerned, because you did have some form of due process at the time of your original conviction. And what if five of the nine were to say that is sufficient, then what?

Andy 43:40
Okay, so let’s go at this from another angle. Let’s assume that the legislature in South Carolina has an epiphany, and they wish to provide some level of due process because they respect the decision of the higher court. I’m not nearly as skeptical as you, why wouldn’t they? *Hysterical Laughter* Obligatory laugh there Larry.

Larry 44:07
Haha, oh, I love that laugh. Well, for three reasons. First, the status quo has not been disturbed by this decision. Remember, only Powell is off the registry. Second, it would be a very risky political move, to want to make things better for a PFR. So let’s do the calendar. 2021 June, the decision came out from the state Supreme Court. They said please, legislative within 12 months. Their assembly doesn’t convene until January and according to my contact in South Carolina, they’ll run through toward late May of 2022. Guess what happens in 2022? An election. A significant number of those legislators are up for reelection as is the South Carolina Attorney General. So that’s a risky political move in an election year to want to do things that helps PFRs. And again, folks, please, I don’t make these rules. I’m just helping you analyze what the considerations are. And third, and significantly important, due process cost money. Expanding public resources on PFRs is not a politically popular position. If you’re going to give anybody meaningful due process, it’s going to require money.

Andy 45:28
Alright, you and I were chatting about this. And you did mention one point that you really felt was important about that decision, you noted that the South Carolina Supreme Court recognized there was no, let me let me put this in quotes. There’s no federal registry. Can you explain that, please?

Larry 45:43
They did. They quoted and I love it. They said, Congress enacted SORA, which is South Carolina’s federal counterpart, the sexual offender registration notification act, which contains a provision seeking to require states to make their sex offender registries available to the public on the internet. Each jurisdiction again, quoting shall make available on the internet in a manner that is readily available to all jurisdictions as well as the public all information about each sex offender in the registry. The jurisdiction shall maintain the internet site in a manner it will permit the public to obtain relevant information for each sex offender by a single query for any given zip code or geographic radius set by the user. And I’m going to ask you to read the most relevant report from the court opinion, the quote there.

Andy 46:33
Alright, so it says However, we do not believe this provision of SORA’s is dispositive of the statutory interpretation issue before the court. Indeed, the federal law does not require states to implement its provisions because it was an acting pursuant to Congress’s spending power by placing conditions of the receipt of federal funds.

Larry 46:56
Okay, so we can conclude from that quote, that a unanimous Supreme Court is either not able to understand what I’ve been saying for many years, that there’s not a federal registry, or I don’t know how else to explain it. Folks, there isn’t a federal registry.

Andy 47:14
That is the language, the writing, Larry is like dispositive. Like, could you translate that into dumb for me, please?

Larry 47:22
Well, there was an argument about… the state of South Carolina was arguing that even though our statute is a little unclear at the state level about the authority and the requirement to disseminate the information, we’re required to do this by federal law. They fell back on the federal argument, you know, we want to be in compliance with the big old bad federal government that we hate. Typically, you know, most conservative states, they decry the federal government, except when it’s something that they like. So they argued that, and the state Supreme Court unanimously and I have to assume that in a republican dominated state, there’s some conservatives on that Supreme Court, I can’t imagine a bunch of liberal pointy heads got elected in South Carolina to the Supreme Court. They have said what I has said is that it’s only the power of the purse. If you want those precious federal dollars, you will do these things. But you’re not required to do this. You could turn your registry off tomorrow. And there would be nothing that federal government could do about it other than withhold your money.

Andy 48:24
Burns funds? Is that is B-U-R-N? How do you spell that word?

Larry 48:30
I believe it’s B-Y-R-N-E.

Andy 48:32
Okay, and that’s Byrne grant money, I believe.

Larry 48:37
Yep. 10% of that.

Andy 48:39
Okay, and so I noticed another footnote where they said to the extent this opinion conflicts with Hendrix v. Taylor, 353 S.C. Is that South Carolina?

Larry 48:52
South Carolina? Yes.

Andy 48:54
Okay. And then 542, 579 S.E.2d 320 (2003). Good grief. Dude, I don’t know where they come up with this notation, because no human can actually understand it. But it says it’s hereby overruled. Is that significant?

Larry 49:09
Okay, now since you brought that up, we’ll dissect this. So what this means, if you were in a law library, and you were looking up this case, which nobody does anymore, but if you were in a law library, and you were looking at the these two, the 353 S.C. that’s South Carolina reports, there’d be a South Carolina reporter on the shelving in the library. So, you’d go to volume, you’d go to volume 353. So there’d be rows after row of the South Carolina reports and you would go to page 542. And that case would appear on it. And then if you were in another state like I am, we’re not gonna have South Carolina reports here. So I would go to the south eastern report, which we would have, I think they still carry the books for the South. So I’d go to page 579 of the southeastern second edition and I would find this case starting on page 320. That’s what that means.

Andy 50:04
Okay, dude, I guess it’s the Dewey Decimal System for legal pointy-head people.

Larry 50:09
No, it’s not that complicated. You just go down the rack looking for volume for that volume number, then you flip to that page number. That’s where the decision is but….

Andy 50:19
okay, Larry, we’ll start talking about computers and routing and ports and IP addresses. And we’ll see how uncomplicated is for you. So is that significant though?

Larry 50:26
But it is what in that case, the Hendrix v. Taylor is the equivalent at the state level of Smith v. Doe, at the US Supreme Court level. So this means that they have recognized as their sister courts across the country have also concluded that they’re now agreeing that that the registry has gone too far. And it took them a long time. But it means that they’ve joined their sister courts around the country that have begun to say, Hey, this is too much. But again, the lawmakers just really can’t help themselves. So they keep piling on and piling on it, they end up in this position because of their own choices.

Andy 51:07
Certainly, alright. Well, we’ve been doing this for really like more than 30 minutes, I think. And let me ask what everyone wants to know, will anyone other than Powell get off the registry as a result of this case? And how soon? So who else does this impact?

Larry 51:24
Right now, no one other than Powell will get off. And if they did the part that we hoped they would do, which would be to legislate a due process within a year, that it would take some time for that process to be implemented, because you’ve got to design it. And you’ve got to get the directions out to how to implement the process. So, you’re talking about a longer-term project, if they were to take the course of action. So let’s just say that they have the epiphany that you talked about, would be two years before anybody would get off. If they take the more likely course of action, which is to file the cert petition. And even if the cert petition is denied, let’s say it takes three months to file the cert petition, if that’s the deadline, because that’s the normal deadline, without the extension of the pandemic. If they follow a cert petition, of course, Powell is going to file a response, and possibly other entities such as NARSOL would file a response, saying there’s no need to grant cert, this is a brilliant decision, and it needs to stay on. It would be very dangerous for it to be reviewed. So Powell would not want it to be reviewed. He likes his he likes his victory. So if it were to go that direction, you’d be talking about several years because the Supreme Court, if they were to grant cert, then they have to order briefing. And then they have to schedule oral arguments, they have to hold oral arguments, they generally announce their decisions at the end of the term that they grant the cert petition. So if they were to grant a cert petition, anytime before the end of 2021, which would be a really rapid movement, but they wouldn’t have a decision until 2022. And so then from that point, depending on what the decision was, you’re talking about long-term. Folks don’t plan to get the registry anytime soon. Because of this, it’s highly unlikely, but we can hope for it. The epiphany is what we hope for. That the Attorney General will dismiss any concerns about his reelection, and that he will advise the legislature that they should have due process, that they will discount any concern they have about the cost because, you’re going to these petitions, you got 1000s of people on the registry. And without some precise guidance, if everyone’s eligible, there’d be a rapid number of petitions. So you’d have to set up something where there would be some criteria for being eligible to file a petition after a certain amount of time on the registry. And then you’ve got to figure out who gets served the petition, who the responding party is, they have to have additional resources to investigate the petition, depending on what’s required. I mean, all this stuff is going to cost money. Are you going to provide any help for the indigent people? Or is this just going to be a petition that’s available to those who have financial resources like typically it is in the states that provide a removal process. There’s just so much involved in this. So it’s gonna be it’s gonna be long, long term, this is not an instantaneous thing that’s gonna provide relief.

Andy 54:15
But let’s just say there’s somebody that is a very similar case to this individual Powell. This is persuasive decision, don’t they get to then cite this and next week, they’re filing a court challenge, doesn’t this just then apply to them almost identically?

Larry 54:31
You’re absolutely right. That that’s also brilliant observation. That’s exactly what you would do. And what I would do. If I were tasked for representing South Carolina, what I would do is I would ask in response to that petition, because that would not be filed in Supreme Court that would be filed at a trial court somewhere in South Carolina. What I would do is I would file a response to that and say, this petition is premature, because the year hasn’t passed yet and we do not know if they’re going to legislate or not. Therefore, since the Supreme Court has said they have a year and they’re encouraged, since they’re the best situated to legislate a remedy, this is premature. So just sit on it. And I would put forth that argument. I don’t know if it would be successful or not. It could be that if they were as favorable as this Powell was, he has had had that one case, and he had successfully completed treatment. And he had done everything right, no additional encounters with the law. And they determined that he was a good candidate for removal, so that, I don’t know if that would be the outcome. But if I can think of putting up that argument, trust me, I’m not letting the rabbit out of the hat. They can think of that. And that’s what they would argue. They would say that this, this is premature, we need to let the process be developed. And we need to not jump the gun here. We want to make sure that we’re letting off the people that should be getting off. And therefore, we would ask you to hold this petition in abeyance. And I just about bet that that’s what the judge would do would hold the petition at abeyance.

Andy 56:00
And I’m going to repeat back what you just said is if I file that same thing, I’m exactly like this, this Powell guy, they’re going to say, hey, come back to us after the legislature has done their work? They’re just going to kick me out saying hang on, come back later?

Larry 56:14
Well, like I say, my request to the court would be that it be held in abeyance until we see if the legislature is going to legislate. I don’t know if the court would grant that. But that would be my response. Because when you file a petition, there’s going to be a response filed. And that would be my response. I would do a flip flop just like what they’re going to do. Right now, I would argued that we’re likely to get something out of the legislature even knowing that you’re not likely going to get anything out of the legislature. But I would say that it’s quite likely, because of the strong encouragement of the Supreme Court, that the legislature will create something, and therefore, we don’t want to jump the gun and try to legislate from the bench. We want to let this process work, even though it’s not gonna work. But that’s what you would argue. And you would ask not that the petition be dismissed, but it be held in abeyance until the legislature legislates. They’re not going to legislate folks.

Andy 57:04
And because I don’t know this word at all, what does abeyance mean?

Larry 57:11
It would be that they just would not make any decision on it. It would just sit there while we’re waiting for this year to pass.

Andy 57:18
Okay, the definition from Google as the condition of being temporarily set aside suspension. Okay. Not really familiar with that word. But it says it’s a legal term. Larry, you got to define these things for us dumb people here.

Larry 57:31
Well, they can think of that, if I can think of that, because I’ve never professed to be brilliant. And that’s what they would likely argue.

Andy 57:38
Sure. And so you said it’s going to take to even like, on the optimistic side, it takes a year for them to go to legislative stuff, and it doesn’t take some time for that to go through before that whole legislative process would be done. And then you got to wait for the governor to sign it. And there’s got to be some sort of implementation mechanism, you’re talking two or three years before anything would happen for the people that are just waiting, that might have something else applied to them where they could get off the registry?

Larry 58:03
Well, with the epiphany that you’re hoping for, and that I’m hoping for, they decide something in the 2022 session, and it takes effect July 1, that’s a really optimistic thing that they could make it effective that fast, because they don’t have this and they’re creating it from scratch. So they’re probably going to set an effective date, maybe January 1, 2022. So they can gear up for it. So you’ve got you’ve got a process at the very most optimistic thing is going to become available and operational January 1, 2022.

Andy 58:37
For clarity, that’s like six months from now, do you mean ’23 by chance?

Larry 58:42
Yes, I mean 2023.

Andy 58:44
Okay, good, good, good. Good, because I was like, they’re not in session now. I assume that’s already out. You’re talking like special sessions. And I guarantee that’s not happening,

Larry 58:51
But yeah, so we were we were looking at January, 2023 before it be up and operational, then you got to file your petition, you’ve got to serve it, you got to let the responding party, whoever they determine. It’s more likely going to be the prosecutor in the county of conviction, or in the county of your residence if you have an out of state conviction, and then they have to respond. And then there’s going to have to be a hearing set. If they design it for hearings, hearings take time and cost money, they consume court judicial resources, so all this stuff is going to take time. There’re no instant answers.

Andy 59:30
Okay, and with your usual pessimism, you just can’t even help yourself, can you?

Larry 59:38
I don’t know if it’s a question or not being able to help myself. I can’t help myself to tell people things that I don’t really believe to be the case and I don’t believe that this is gonna do anything anytime soon to help folks. It’s a fabulous decision, but I don’t think we’re going to see any relief anytime in the immediate future.

Andy 59:57
I can tell you that over on Reddit. It has been burning up the sex offender support channel over there. And then there was a massive conversation going over on our Discord server yesterday or day before I think, pretty sure was yesterday. Just I mean, there’s five or six, seven people talking about it for like two hours almost, just beating around going back and forth. This has definitely lit up our universe as far as people having conversations and postulating about what’s going to happen with this whole thing.

Larry 1:00:27
Well, I’d be interested to hear what some of the comments are, is that gonna bring the registry down next week? Is that what they’re saying?

Andy 1:00:33
That would certainly be one of those things. (Larry: Wow.) All right, well, we are almost like exactly at an hour. Larry, is there anything else? Do we have any articles that you want to touch on before we scoot on out of here?

Larry 1:00:53
Well, let’s see on these articles. I think that there was not anything that I really had a passion for. I was putting them in in case we didn’t have anything. But we had these two decisions.

Andy 1:01:04
Yep, I’m with you. And those will all be in the show notes if you want to find a PDF of them that Larry has provided for us, which is super awesome, as usual. But of course, we need to thank, we got a new patron this week. Larry, tell me quickly about this new patron this new patron is Kay. how did Kay find us?

Larry 1:01:23
Kay found us because of our discussion of revocation of supervision on the interstate offenders who have been transferred in due process. Those probable cause hearings, and she has a loved one who’s needing a probable cause hearing. And somehow you can explain that about how those keywords search, but it popped, it popped up and they listened to our episodes, and they found them fascinating. So I ended up talking to Kay at great length, as a matter of fact.

Andy 1:01:54
But the point is, is Kay is not a PFR-related person, this is some other kind of crime that was committed.

Larry 1:02:00
That is correct. I omitted that but yes, that has nothing to do with our issue. It’s the process that we explained. And she said they listened to those episodes multiple times, because they felt that no attorney they could speak with could explain the interstate compact the way we did.

Andy 1:02:19
Fantastic. Thank you very much, Kay for joining up and look forward to communicating with you in the future. And then we also had positive, like one that we may have forgotten to mention, but so I have a podcast transcript person from inside the walls. And Jason, we may have forgotten to mention that individual. And then also a new one is Lindsay. So, Jason is Indiana and Lindsay is in Illinois. That’s super stellar. Please pass that around to your folks behind the walls there and stay safe. And again, thank you so very much. Anything else before we shut everything down Larry?

Larry 1:02:52
In terms of the transcript, it is possible… this episode will go out on schedule, it is possible to the next episode may be late because I could be traveling. And I’m integral to the production and creation and distribution of the transcript. But I’m not sure yet. But I could be traveling so you will get it, it just may be late.

Andy 1:03:13
Yeah. And actually let me mention that if you are traveling, then our schedule of recording could be off. It could be Friday or could even be pushed back to Sunday. Who knows where all of us will be at what time because I have to bring Larry equipment to record a podcast. But, Larry, with all of that you can find show notes over at registrymatters.co You find the latest episode on all of our back issues you can leave voicemail at 747-227-4477. Email registrymatterscast@gmail.com. Of course, the best way to support show is patreon.com/registrymatters. Larry, I thank you so very much. You are the explainer in chief for all things PFR-registry-related stuff. And I hope you have a fantastic week, and I will talk to you soon.

Larry 1:04:01
Thank you so much. That is why I am here.

Andy 1:04:04
Oh wait, I can play that for you here. 1-2-3.

F. Roosevelt, MacAurthur Movie Clip 1:04:09
That is why I am here.

Andy 1:04:11
Oh, you were supposed to do it in sync. Try that again some time. All right, Larry. Have a great night. I will talk to you soon.

Larry 1:04:15
Good night.

You’ve been listening to FYP.


Transcript of RM180: Understanding The Sentencing Process

Listen to RM180: Understanding The Sentencing Process

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts, fyp. Recording live from FYP Studios, east and west. Transmitting across the internet. This is Episode 180 of Registry Matters. Good evening, Sir Larry, how are you?

Larry 00:25
Fantastic.

Andy 00:26
That’s good to hear. Anything exciting over in the land of enchantment land?

Larry 00:32
Well, there was a little bit of humor, the governor announced reelection, her candidacy for reelection and she found it difficult to speak over the hecklers. (Andy: Really?) I find that so humorous. Along with many things about this governor, I find humorous, but I find it humorous that she has done a settlement for sexually harassing a staffer and paid $65,000. And I’m going to find track down the video one of these days, or at least the audio of her saying that Governor Cuomo should step down because of the seriousness of the allegations. And as far as I know, I don’t believe that Governor has settled with any of his accusers in a civil settlement. (Andy: I haven’t heard anything.) And she hasn’t resigned, as she’s advocated that people do because of the seriousness of the allegations. And I’m just troubled by that. Because again, for those of you who don’t think I call out Democrats, our governor’s a Democrat, and I’m very troubled that she imposes a standard of conduct that she does not follow herself.

Andy 01:48
Would this be hypocrisy? Wait, hang on, I have something for this. I have. Which one is it? This one.

Audio Clip 01:53
for you to come back and call bigots my admirers is a farce. It’s an act of hypocrisy. It’s a terrible way to treat a guest on your show. And you know it.

Andy 02:04
Just like that? Hypocrisy.

Larry 02:06
That’s what it would be.

Andy 02:09
And hypocrisy would be a double standard, where she’s saying, “Do as I say, not as I do.”

Larry 02:14
Well, among other things that she’s done during the pandemic.

Andy 02:20
Well, tell me about what we might have going on the show this evening.

Larry 02:25
Well, we’re going to have a fantastic discussion with some audio clips that were submitted. And a letter from a prisoner who wants to talk about Packingham, and we’re going to talk about Derek Chauvin from Minnesota whose sentencing is approaching very rapidly, I think it’s June 25th.

Andy 02:50
Okay, and that would be I’ve, I’ve always wondered what like when I got convicted, I didn’t go home that day. Why do some people have to then report for prison some weeks or months in advance from now or in the future from now?

Larry 03:05
Well, he was taken into custody. So, you’re not talking about him. But in general, what happens is, there has been an assessment done by the authorities in terms of flight risk, ties to the community. And bonds are not automatically revoked upon conviction. In this case, the bond was revoked, and he was taken into custody. But in the federal system, there are a lot of people who are allowed to self-surrender. And even in some states, it’s less, I think, less common in in most states, but people do self-surrender, and you need some time to get your affairs in order. But that’s not a given.

Andy 03:39
Interesting. Okay, well, let’s, let’s get this show rolling. And first up is to just quickly plug that there is a conference, a little miniature virtual conference coming up in about two weeks. It’ll be on June 19th. And that’s coming from NARSOL. And there’s a whole up on the screen, if you’re looking and there’s a link will be in the show notes. It’s building your advocacy toolkit. There’s 5, 6, 7, 8, 9, 10 people it looks like. Nine people that are doing presentations. That’s coming up here in a couple of weeks.

Larry 04:15
So, what is NARSOL?

Andy 04:18
Oh, NARSOL is the National Association for Rational Sexual Offense Laws, formerly known as RSOL. But that was like a million years ago. It is a national organization that advocates for making the lives of PFRs better. Did I do it justice?

Larry 04:36
You did. That means all of our listeners should also be a member of NARSOL.

Andy 04:42
I think that’s accurate. Because they’re the only national organization that I’m aware of that goes out and funds challenges nationally. I think if I word that right, because I think like ACSOL, they will do challenges, but they’re pretty much isolated to California and correct me if I’m wrong there. NARSOL provided funding for the case that we did in Georgia. And then there have been other ones that they have been advocates for in other states as well.

Larry 05:09
Well, they have, that organization has a different model, since they have an attorney who is on their leadership team. But they don’t do the same model that we have. We can’t initiate as much litigation as an organization with an attorney. Therefore, we end up funding litigation, which helps seed litigation, particular with out-of-pocket cost, which can be horrendous. So oftentimes, we will seed a case with some money for legal fees. And we will secure the case related hard costs, depositions, expert witnesses. Those things could prohibit a case from moving forward. And that’s not their model, if they take on a case, since they have an attorney, they plan, they plan to support the necessary funding through their donors. But they as far as I know, they don’t fund cases that they’re not handling. We do fund cases that we’re not handling. We’re involved in, but we don’t have the lead position on the on the case. So it’s, it’s a different model.

Andy 06:13
Okay, um, yeah, I guess if NARSOL had an attorney, like as a board member or something like that, then it would be where we could go out and play offense a lot more. So it’s kind of how you’re describing it.

Larry 06:26
Kind of, we’re moving in that direction. We’re moving towards having at least a part time attorney at some level, but when your executive director is the is an attorney, and that’s their entire day job. It creates more flexibility for that organization for them to do and that is ACSOL. What does ACSOL stand for?

Andy 06:49
Oh, the Alliance for Constitutional Sexual Offense Laws. I may have that slightly off, but I think that’s pretty close.

Larry 06:56
That is correct. And so we’re plugging ACSOL as well.

Andy 06:58
Very good. Well, then, let’s move over to our voicemail messages. The first one comes from a very long time, possibly, like patron number one, or two or three or something like that. And this is from Jeff.

Jeff Voicemail 07:14
Hey, this is Jeff from Kentucky, also known as Captain Crazy on Twitter. So, I had a comment slash question, I guess. So, in the last week’s podcast, you guys said that public is starting to get on board with criminal justice reform, which I think is fantastic. There are a lot of people in jails for reasons they shouldn’t be. However, I’m afraid law enforcement is still going to find a way to justify their own existence. So, if we stop arresting people for crimes that they would normally get arrested for, and we start letting people out for crimes that would normally keep them in jail for a long time, in order to justify their existence, do you not think law enforcement is just going to start cracking down on the real dangerous people? A.k.a. sex offenders. My fear is that if they start turning loose a bunch of people from jail, and they stop arresting a bunch of people for that, they’re just gonna get really, really hard on us, in order to, you know, justify their own existence. But anyway, thanks for what you do. And fyp. Goodbye.

Andy 08:27
Thank you for that question, Jeff. Sorry, it took us an extra week. It just slipped my mind last week to play that one last week. But what do you think, Larry?

Larry 08:36
I think he’s absolutely correct. That is exactly what they will do. And that’s the reason why we have to curtail the funding, as we are doing these reforms. If you leave the apparatus in place, with all the funding and resources that has today, and you don’t change that, it will need to operate and justify its existence. He’s absolutely correct. So if we make a concerted effort to reduce our prison population by 25%, we’ve got to look at the input mechanisms that put people into that to those prisons, and figure out what we need to do with those resources and how they should maybe be reallocated and retrained and redirected if we don’t do that. He’s absolutely correct.

Andy 09:25
Gotcha. Yeah, I don’t think there was anything else that I wanted to even touch on from there. Let’s move on to the next one.

Brian Voicemail 09:38
Hey, guys, I just want to know, this is Brian. I’m in Virginia. About to take a probationary polygraph test tomorrow, and I know that it’s a bunch of bull crap junk science, that means nothing. But I think you guys will find it interesting to know that here in Virginia, they have case law that they don’t tell people about. It’s Turner v. Commonwealth in 2009, which ruled that polygraph results are inadmissible in probationary revocation hearings, and Virginia Department of correction and probation parole operating procedures, specifically state that maintenance polygraph test results and just test results, in general, cannot be used in hearings. They become a treatment issue. So, I just figured you guys would think that’s interesting. I appreciate everything you guys do. You guys are amazing, very informative on the corrupt criminal justice system that we have. And thank you and for everything you guys do and fyp.

Andy 11:03
Have you ever heard of anything? Like that would be the only positive thing about PFRs in Virginia that I’ve ever heard.

Larry 11:09
Well, it’s consistent with what happens around the country. Those things are not admissible. I keep emphasizing they will never, you will never present me a petition that says only on the petition, showed deception on polygraph. I’ve got the challenge, a long standing challenge asking for that. No one has met that challenge yet. That’s exactly what I’ve been saying. But what is admissible is what you tell them in the post polygraph interview, that is very much admissible. And that is exactly what hangs most people is the confessions they make after the polygraph results are disclosed to them. And they are confronted with you showed deception, is there something you want to tell us about this? And inevitably, the people tell them things and those things, those statements are admissible.

Andy 12:09
And that would be them, hey, you showed deception. Yes, I had some alcohol. I was watching naughty videos on the computer. I missed curfew, I was hanging out at a ballgame, anything of that nature, that’s where they get trapped.

Larry 12:22
Absolutely. And that’s what people need not to do. And again, FYP doesn’t advise anybody to violate conditions of supervision. Nor do we advise anybody to be dishonest on a polygraph test. But what we do tell you is that after the conclusion of the examination, if you change your story, what you tell them will be used against you in a court. That’s what we’re telling you. You can read from that, whatever you would like to, but we’re telling you, if you change your story, they will use that against you.

Andy 13:01
Gotcha. All right, then let’s move over to Super patron Mike.

Mike Voicemail 13:08
Hey, Andy, Larry, this is Mike down in Central Florida. Longtime patron, longtime listener, just wanted to call and share a little experience I had down here with you real quick. On Monday, of this past week, I, not Memorial Day, but the one before sold a vehicle and you got 48 hours to make that registration change. The very next day, I had a situation where my wife came down sick, ended up in the hospital with COVID. So clearly, we were quarantined. I wasn’t able to go out to the registration office, but I had a 48-hour window that had to be changed had to be made. So, I called the people got them on the phone, talked to them, and they were understanding, they took the vehicle off. They verified my information over the phone and handled it. And although that isn’t a procedure or an option. A lot of times, I find that if you just give them a call and try to you know, be honest with them. You may or may not have that nonsense that I hear a lot of places play the whole gotcha thing. And, you know, to their credit, they’ve always been pretty civil. I mean, it is a civil regulatory scheme, right? Anyway, I just want to share that with you. If someone’s listening to this and you get in that situation where you just can’t do it. And there’s a reason for it, call them see what they say, Man, you might have avoided a disaster. Don’t stick your head in the sand and pretend it’s not gonna, you know, and nothing’s gonna happen or it’s gonna go away. I would encourage you to pick up the phone and call them. That was my experience. But anyway, I just want to share that with you and maybe encourage some people you know. Other than that, I just want to say fyp love the show, and I’m looking forward to the next week’s episode. Thanks, guys.

Andy 15:00
Do you have any opinions on that? Do you think that they act human generally? Or do you think they’re out to get you

Larry 15:06
Both. Absolutely Both. And I think this would be a good example to illustrate my point. And I agree with what Mike said, you always want to be on the up and up. And when you have something that makes it difficult for you to comply, it’s always good to reach out to them. Whether you would get the same reaction remains to be seen. We can take a look at just around Metropolitan Atlanta, within how people get treated in Cobb County, which is on the northwest of Atlanta, and how people get treated in Gwinnett County, which is on the northeast side of Atlanta. And I’ve never lived in either of those counties. But I just hear from folks, Cobb County, until recently, when they had a new sheriff elected, they were very hard-nosed, and Gwinnett County was much more like what Mike describes. And then there’s economic status that can play into it. When people that are middle class, which I’m pretty sure that Mike is solidly middle class, people in the middle class have the potential and the capability of being able to fight back. Those officers that are looking for an easy target is in some regard similar to the schoolhouse bully. You look for the easy target: the kid that you can take the lunch pail from or if they even have lunch pails anymore, I don’t know. But an example would be like a homeless person in this state that doesn’t have a fixed residence. Law enforcement, at least in my county, tell those people that they must come in weekly. There’s no such requirement in New Mexico statute anywhere. That is a completely invented requirement that the person could tell them, sorry, too bad. So sad, I’m not going to come in every week, because I’m not required to. But when you’re homeless, clearly, if you’re homeless, most of the time, very few homeless people running around with gobs of bank, gobs of financial resources. Therefore, they know if they push back, what’s going to happen to them. Contrast that with a person who’s living in a $300,000 middle class house and has resources, they tend to be better respected in the community, even though there are a PFR. Law enforcement does recognize that they have the capacity. They have resources, and they’re respected to some degree in the community. The homeless person is basically human garbage. And I think we’ve heard people refer to folks as human garbage. These are not my words. This is what we’ve had public officials, or want to be public officials, refer to. And those people may not get the same treatment. I agree with Mike, you would want to call, you would want to document. Calls are not even the best way to document if you have anything else that would be a better way to document that you reported it. That would be even preferable. But don’t think just because you got that treatment, that everyone is going to get that treatment.

Andy 18:11
I know from my experience with whatever six and change years that I always was, sir Ma’am, I was as punctual as possibly could be. As soon as they would pull up on the driveway, I would practically run out the door and greet them. I sort of did that as a defense mechanism. Hopefully, I would keep them from coming inside. Not that I had anything. I just didn’t want them rummaging through my stuff. But the other people that I know, they have been forthcoming and respectful. And none of the people that I am in touch with on a regular basis have had problems. That goes to support what Mike is saying. And then Charles said in chat said, it’s how you treat people. I’m respectful. So, the officers are good to me. I’m inclined to agree with that, too. And I have definitely seen people buck and think things go poorly for them.

Larry 18:59
I agree with that. But are you supposed to do things you’re not required to do if they impose invented requirements? We’ve talked about those things in Cobb County that they’re telling people that they have to do that they don’t have to do. That would be equivalent to Rosa Parks saying, okay, I mean, if she would have just gone the back of the bus, everything would have been fine. But law enforcement, typically, that maybe too strong a word, frequently imposes requirements that are not in the statute. And our state does not give them that prerogative to do that. In fact, we prohibit them from putting anything that’s not in the statute as a requirement on a PFR. Therefore, I don’t consider it bucking. I don’t consider it bucking when you go to MVD to pay for your license registration. And they tell you that the fee is $45. But we’d like you a whole lot better if you pay $90, would you go ahead and pay the $90?

Andy 19:50
Can we revisit the Rosa Parks thing just for a minute, where a very common, I almost want to call it a trope these days is well why don’t you just comply? It would just be easier if you would just comply. And yes, Rosa Parks, everything probably would have been, like not long term. In the immediate sense, it would have been easier, then, but not fast forward. Where we have… I mean, that was almost like what sparked the civil rights movement back in the 60s. So if you don’t have a requirement to do it, which would mean you have to know the requirements for you to be able to push back and go I’m not required to do that.

Larry 20:27
Well, I believe she actually did have the requirement, she just chose to buck an unconstitutional requirement. But there are things that PFRs are told to do that they’re not required to do by the state statutory schemes. And if law enforcement, but when they put the hand on the Bible, they were supposed to enforce the law, not invent the law. And the Gwinnett County Sheriff’s position was, I don’t know about the current Sheriff, if it’s not in the statute, we don’t invent things. We only force you to do what’s in the law. That’s all we ask. We don’t agree with the law in many regards of what they impose, but we ask you to stay within the contours of the law. That’s what you put your hand on the Bible and swore to do.

Andy 21:15
Okay, let’s move off from that. And we will move to a letter that was written I think you said it was by a prisoner. It says:

Listener Question
Dear Andy and Larry, I’m writing in regards to Episode 175 of the podcast dated May 1st of 2021, particularly in the portion the transcript I read from time index 17:36 to 19:30. When I was a PFR, before being arrested in 2016, I was able to access some social media platforms such as Twitter. And at that time, Twitter’s Terms of Service did not have any stipulations barring PFRs. Same with YouTube, Gmail, or anything else Google owns. Facebook, as far as I understand, it still bars PFRs today, even in spite of the Packingham case. Again, Google does not do this. I have a Gmail account with them. Could you please verify this? And please tell me which social media platforms as of 2021, do not bar PFRs. And thank you muchly.

I put a link in here to a video that I did about a year ago that talks about this exact subject where someone had called me. And I realized that this doesn’t help the person in this message because he’s in prison at the moment. But Larry tell me why can what Packingham was about and how this impacts what Facebook and Google and those guys do a

Larry 22:38
Lot of confusion still out there about Packingham. It was a challenge. North Carolina had imposed a blanket ban on anyone who was required to register, prohibiting them from using social media where minors were likely to be present. And that was a governmental prohibition. And the Constitution guarantees that the government will not do these things. That does not guarantee what the private sector will, will or will not do. Therefore, when people say despite Packingham, Facebook does this. Packingham was not a challenge against Facebook, it was a challenge by Lester Packingham against the state of North Carolina for its restrictions that it had imposed blanketly on PFRs. And in fact, the Supreme Court made it clear that these restrictions might in fact be constitutional if they were narrowly tailored. Again, I’ve said before the law enforcement apparatus cannot bring itself to narrowly tailor anything. They would be able to do a lot of things if they would actually narrowly tailor. Here’s your clue. If you want to restrict PFRs from being on Facebook, or similar platforms, make sure that there’s a direct correlation between their offense and their restriction. And make sure you prohibit them from engaging in conduct that would put them in closer proximity towards making contact with a minor that they don’t have any business contacting. If you will narrowly tailor. Now I’ll even volunteer to help you do it because I get tired of these unconstitutional statutes being presented to legislatures all the time. I’ll actually help you write a constitutional statute. The only problem is, it’ll be so narrow that it will not encompass enough people to make the jaws of law enforcement happy. But this writer,, Frank, he’s misguided about that because the challenge was against the state of North Carolina for its blanket prohibition.

Andy 24:41
And let me just hypothetically, like critique this narrowly tailoring, if an individual is using Facebook to go solicit whatever he’s trying to solicit, and that’s something against the law, then they would tailor that access to social media based on that person’s proclivities to use social media to do their grooming.

Larry 25:07
Correct. Now, it’s already against the law to solicit a minor for immoral purposes. And I think in all 50 states, so that we already have a protection against. But prior to that point, we don’t have to let it evolve to that. I think you could craft a constitutional statute that would prohibit a person who had narrowly tailored facts of their conviction, where they had used some sort of electronic means to approach a real minor or at least a make believe minor. And that would probably be constitutional that you could say that you can’t use these platforms to make contact with an unrelated minor. You still need to allow them to have access to their family. But you could narrowly tailor this. I’m volunteering law enforcement, please contact me, if you want to do this so desperately, I will help you write something that’s constitutional. But you won’t be satisfied, because it will prohibit very few people from using most social media. It will prohibit a small number of people who’ve been narrowly tailored for a specified period of time from approaching minors on social media. That’s what you can do constitutionally. But Facebook can do whatever it wants to. It’s a private company. And it can choose to disallow people from being on its platform until the case law or until the statutory law changes.

Andy 26:33
Yeah, I’m, I’m stuck on this. I’m thinking of another example is if you were somebody of a drinker kind of person, and they said you can’t go to bars. Like that would pass because it’s narrowly tailored like this would potentially put you in harm’s way of going to get a drink if you go to bars. I can see that that would make sense. What I’m stuck with also, Larry, is that they come out and I’m doing a lot of air quotes here that they say this is the interest of public safety. So then why not work with someone like you to actually tailor it so that it is in the interest of public safety? Because you don’t need to someone that I don’t know, looked at adult people porn, that’s probably not even a good example, that just a different example. And it has nothing to do with computer crimes and getting on the internet. But then they make all these restrictions against it that we then have to go to court, it comes up the system and creates all this headache and overhead, when if they’re trying to protect public safety, why not craft the laws in such a way that they are actually effective?

Larry 27:39
The reason why that’s not done is because in our soundbite society, it would be very difficult. And the soundbites to explain that to the general public. And the victim’s advocate, and the law enforcement Industrial Complex, they’re not interested in that. And I can’t explain to speak for them why they’re not interested. Maybe it’s because they need more business, you will have to have one of them come on explain why they want so many things to be illegal, and why they want to constantly elevate the severity of crimes and all this kind of stuff. But they would not try to explain that. And it would be difficult in the soundbite era that we are in to explain. That’s part of the problem. So, there would be all this pushback. So “Would you believe they’re letting sex offenders be on social media? They just passed this. And it’s only it’s only for a certain group, I don’t think any of them should be on there.” And there’d be news stories that would be running vilifying the lawmaker who made such a proposal, if they spotted the nuances, and they would say this hardly impacts anyone. And so that’s the reason why they don’t do that. But that’s what we should do. You’re correct. If public policy was about public safety, I don’t know that the drinking thing is a good comparison. Because when you finish your sentence for your drunk driving, you’re allowed to drink again, you may not be allowed to while you’re on probation. But as far as I’m aware of we don’t have a civil regulatory scheme that follows you post-conviction after you’ve discharged all of your jail time if you’ve received any and after you discharge your probation. I’m not aware of anything that prohibits you from going and buying alcohol. I’m really not. Is there such a thing?

Andy 29:14
Right. For any other crime other than this one that has all these extra things after you’re done with your sentence.

Larry 29:20
And that’s how we win on public opinion. We ask people, don’t you believe that a person who’s paid their debt in full to society? Do you believe they should have restraints placed on their liberties? And they won’t be able to think it through because they don’t know that they have all these restraints. They think this is a part of their punishment. And they’ll say, Well, of course not. So well guess what? That’s what we do. We control people where they live. We control their social media access. We control where they work, we bar them from jobs. We do all these things to them after they’ve paid their debt to society. And people go huh, we’re doing that in this countr? They don’t know that.

Andy 29:57
And that that is it. You’ve said Probably since before the podcast to me anyway, that if we can’t win that battle, we can’t do anything for anybody that’s still under some level of supervision. But we have people that are being punished and harassed and whatnot, after they’ve completed everything, or to work from someone like super patron Mike, who completed all of their stuff before the registry really even existed where he lived, and then got roped into it after the fact.

Larry 30:23
Absolutely. If you can’t, what I’ve said, and that’s a great memory. What I’ve said is that, if we’re trying to change public opinion, and you can’t go out and have a conversation with John Q citizen and ask them the question that you just posed, that we should stop punishing people after they’ve done their time. If you can’t win them over them that, how would we ever convince them to reduce the punishment, that for people that are serving their time, if they don’t want to stop punishing people after they’ve done their time. I don’t know how you would actually convince anybody to reduce existing punishment, but a person’s still being punished if they won’t stop punishing people after they’ve served their punishment. To me, that’s a no brainer.

Andy 31:07
Alright, so thank you for writing in that question. And man, best of wishes for your time that you’re down, you didn’t say how long that you were gonna be gone. But I hope that you have a safe travel and that you get out as soon as possible.

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Um, well, Larry, I think we should move over to our feature event. And you put this thing in there of a sentencing memo for Derek Chauvin in this week. And for the life of me, dude, I am trying to think of all the things that could be related or not related. And this fits in the category of not related, some disjointed logic you’ve got going on, but I’m sure you have a reason to think that it’s relevant.

Larry 32:31
Well, I do. I’m not sure how disjointed my logic is, but I believe it’s relevant. And I believe it’ll help our audience to understand how the sentencing process works.

Andy 32:41
All right, so what is a sentencing memorandum?

Larry 32:46
They are fairly common. In this instance, it’s a memo written by Mr. Chauvin’s attorney seeking leniency. And he’s putting forth his legal and other relevant factors in support of why this leniency should be granted. (Andy: And what is he seeking?) Wow, you want me to go through all these 26 pages?

Andy 33:07
Yes, and I want you to do it quickly. Do it now.

Larry 33:12
I’ll just quote briefly, the defense argues that the requisite substantial and compelling circumstances for a downward dispositional departure are present in this case, and he urges the court to grant its motions and impose a probated sentence or limiting his incarceration to time served, or the alternative a downward durational departure in crafting the sentence for Mr. Chauvin, meaning that the duration of a sentence should be less than the guidelines.

Andy 33:44
Alright, so since you read directly from the motion, let’s get in the memo a bit. And so before we finish, what I want to know is what did they do right, and what did they do wrong? And then of course, Larry, if you think it will work?

Larry 33:57
Well, those are great questions. So you must have worked all afternoon. (Andy: Yes. I did) Well, what they did, right, and any good attorney does this, but what he did right was he tried to humanize Mr. Chauvin. And they portrayed him as a working family man with no prior criminal history. Those were the facts. Also, they cited to the relevant Minnesota statutes and case law pertaining to judicial discretion and urged a significant downward departure. And again, I’ll quote from the memo. Mr. Chauvin asked this court to look beyond its findings because the court already issued some findings in response to the state’s motion. So, they’re asking the court to look beyond the findings to his background. His lack of criminal history, his amenability to probation, to the usual facts of his case, and his being a product of a quote broken system. Mr. Chauvin requests this court grant his motion for mitigated dispositional departure or in the alternative a downward durational departure, and that’s on page three of the memo.

Andy 35:04
What is the difference between dispositional departure and durational departure?

Larry 35:11
Well, in terms of the disposition in this case, it’s supposed to be a prison sentence, the way I read the guidelines and that’s just from what I’m reading it. I’m not an expert in Minnesota. But it appears, though, that this has a required disposition of incarceration for a significant period of time. I think like between 10 and 15 years, but so he’s asking that the disposition not be incarceration, and the alternative, he’s asking that the duration of the incarceration be significantly moved downward from what the guidelines would be.

Andy 35:47
He’s asking the court to impose a probated sentence and can you first before you answer that? Can you describe probated sentences that where he doesn’t do any jail time? He just or whatever he’s done already, but he just he has probation?

Larry 35:59
Yes, he has made that request.

Andy 36:02
Okay. How does he make such a claim?

Larry 36:05
Well he thinks he’s put forth a good argument. Again, I’m going back to this so I can be specific on what he’s arguing. The sentencing guidelines recognize that there are cases where the guideline sentence is not appropriate due to substantial and compelling factors. When such factors are present, the judge may depart from the presumptive disposition or duration provided in the guidelines and stay or impose the sentence that is deemed to be more appropriate than the presumptive sentence the next Minnesota sentencing guidelines 2.D.01. And then he goes on to argue a departure is not controlled by the guidelines, but rather an exercise of judicial discretion, constrained by statute or law. And the defense is urging the court to use its discretion to depart downward. And now we do believe judicial discretion at Registry Aatters and at fyp, right.

Andy 36:58
Yeah, right. Mandatory minimums. That’s what we often talk about as you get convicted of XYZ crime and you’re going to do a minimum of 30 years, 10 years, whatever. And we talked about the judge’s hands are tied of someone that worked in the community, all these things. So yeah, we’re in favor of letting the judge take the circumstances of the individual into account and adjust the sentence accordingly. Do you think that he has any realistic chance of this happening?

Larry 37:25
None whatsoever.

Andy 37:27
Well, you’re Mr. doom and gloom as usual. Um, you people work in a law office? How can you make such an argument with a straight face? Tell me what compelling arguments his attorney has made?

Larry 37:39
Sure, I could do that. Well, here’s the attorney is arguing that he’s 45 years old. He will be when he stands before the court and his age weighs in favor of determining the sentence because the attorney points out the life expectancy of police officers is generally shorter, and police officers have a significantly higher probability of death from specific diseases than males of the general population. And they point out that he has been preliminary diagnosed with heart damage that might that he may likely die at a younger age, like many other ex-law enforcement officers, and independent of any of those health factors, the long-term damage of prison sentence would inflict upon Chauvin’s life prospects given his age, and the fact that he’s a former law enforcement officer, that increases the likelihood of him becoming a target in prison. And such safety’s concerns they argue, are evident by his pre-sentence solitary confinement in a high security prison, which is taking a toll in itself. When you’re in continuous lockdown for your safety, that is a horrendous way to do time. I think you would agree with that.

Andy 38:47
Oh, absolutely. I did like a week in the hole. And I just had a bunkmate and it was pretty miserable. Um, but it kind of seems like you’re going kind of all soft and feely touch for this for this ex officer. I’ve never heard of a police officer being concerned about how someone arrest might become a target in prison, nor do I ever recall them being expressing concern for the health. Like they don’t give a poop about who they lock up and put away Larry.

Larry 39:17
well, you’re right about that. And that’s, that’s just who I am as a defense-oriented person. And for, for better or worse. I believe that this defendant, now that he’s been convicted, should be treated like any other defendant. I know the officers don’t feel that way. And I know they’ll never say what I’m saying, but I believe he should be treated like anyone else. However, that does not change anything. We’re supposed to be a compassionate society. Do we value all human life or not? Mr. Chauvin is a human who made a very bad decision and his sentence should not be to appease an angry mob. Rather, it should be consistent with a person with zero criminal history who’s been convicted of a similar crime, don’t you think?

Andy 40:10
I think so. Yeah. I mean, I think that that sounds fair. I just, but what about holding the concept about law enforcement being held to a higher standard?

Larry 40:25
Well, that does come into play, and he’s being held to a higher standard. Do you think any other person would have been vilified to the same level had they not been a police officer? We need to look at the other unintentional deaths for guidance, and I’m not in Hennepin County, but I don’t believe it was proven that he intended to kill George Floyd. It was proven beyond all doubt, in my mind, anyway, that the knee deprived him of oxygen, which resulted in his death. But that’s quite different than saying that when he put the knee on his back and held it there that he intended to kill him. You would agree that that the intent was not shown that that was when he got up in the morning, I’m gonna figure out how I can… you know.

Andy 41:09
Yeah, I agree with that. I don’t think he ever intended on Hey, today, I’m going to go kill some SOB by putting my knee in the neck or killing them. However, things just escalated. I’m fairly confident that’s how it went down.

Larry 41:20
Okay, then the question is how would we treat a person who had zero criminal history? Who had been a productive taxpaying citizen? I know he had some prior issues with complaints from citizens. But how would we treat a person who had unintentionally done something that resulted in death? I think that Chauvin is being treated quite a bit harsh. I think he’s being held on to a much different higher standard. I’m guessing. Again, I don’t know how the sentencing goes in Hennepin County, but I’m betting he is being held to a higher standard.

Andy 41:55
Let me ask you this question. Real quick, though, is, um, do you think he’s taking, Chauvin is taking extra heat for being this first one, because there have been so many, so many, so many other cases, that that there was never even like a trial even brought to and if there was, the cop was acquitted. So do you think he’s taking all that excess baggage, and they’re dumping it on him?

Larry 42:18
I do believe that, that this is part of the what’s happening here. I think there was a US House of Representatives member that said that they’re better than nothing other than a guilty verdict.

Andy 42:33
Um, well, let me ask you this question in a different way. So, would you be in favor of a probated sentence?

Larry 42:40
I don’t know. I don’t, I’d have to know. I need to see the state’s reply. They’re going to have a chance if they haven’t already filed it. I doubt they filed it this quickly. But I would really have to know what the state says in response. And I’d have to know how other defendants with a similar criminal history who are deemed amenable to probation, and he made an eloquent argument in there that he was compliant with all pretrial supervision and all the stipulations. I’d have to I’d have to consider all that. And it would be a tough call to make because I know that you would make a significant segment of the population mad if you were to impose a probated sentence. It would be deemed as a dismissal of value, devaluing of George Floyd’s life, and I doubt it would be a very tough thing. But I could see a person with an unintentional death getting a probated sentence. I mean, I could live with that. As a general supposition, I could.

Andy 43:37
I’m trying to draw a comparison to someone like Harvey Weinstein, who did a whole bunch of heinous stuff and was convicted. But as far as I know, he complied with all the pretrial stuff, wearing ankle monitors not trying to flee all that stuff. I don’t think he got handed a light sentence. I think they kind of put the screws to him in the end. Just trying to make a comparison to something in our camp.

Larry 44:02
They did indeed. They were very harsh. And he’s got more charges in California that are still pending. And he’ll die in prison.

Andy 44:09
Oh, I know. I’m sure of that.

Larry 44:12
I don’t know that this is a comparison, though, because we still have something accidental versus something that was intentional. And I’m not pronouncing Weinstein guilty of all that stuff. But we have what appears to have been a very bad decision. Looking back on it, I think that if you had any training at all you would know about oxygen, and deprivation of oxygen. But it was a very bad decision without the requisite criminal intent to inflict death.

Andy 44:48
All right, well, then kinda like moving into the backside of this. What do you think the defense lawyer did wrong?

Larry 44:56
Well, I’m glad you asked that. I think he minimized too much in the sentencing memo. He used phrases like during the restraint, Mr. Floyd ceased breathing. Well, I mean, that is literally true. He did in fact, cease breathing. Yes.

Andy 45:10
And I’m not laughing. Because, yes, he definitely ceased breathing. I don’t know if they know… I don’t want to, I don’t want to go into that that. But go on. What else?

Larry 45:19
I don’t believe he would have ceased breathing without the pressure being applied to him. So therefore, I think that is unnecessary minimization of what was there. Then he said paramedics attempted recitation, and Mr. Floyd was later pronounced dead at Hennepin County Medical Center. Well, that’s trying to make it appear as though there was hope, and that he could have possibly been resuscitated. This is code speak for with the right level of resuscitation effort, he might would be alive today. And I just don’t like that being in a memo. I would never… if an attorney I was consulting for had written that, I would have gone to bat and say we’ve got to take that out. We’ve got to take this out. (Andy: Tell me why.) Because it minimized and devalued his life. He did not cease, well he did cease breathing. But he ceased breathing because of a direct action of Derek Chauvin. And it makes it sound like he just was breathing just fine. And then he stopped. And then the paramedics attempted recitation but by the time they did do that attempt, he had long since stopped breathing.

Andy 46:31
Sure, I’m totally with you there. Alright. So here’s what’s really bothering me though, since the attorney said, here, Mr. Chauvin was unaware that he was even committing a crime. Okay, I’ll buy that because was he committing a crime. Killing somebody is probably always a crime. But he didn’t know that putting his knee was going to kill him, which I guess doesn’t know that he’s committing a crime. But in fact, in his mind, he was simply performing his lawful duties as an assisting officer in the rest of George Floyd. By that, Mr. Chauvin’s not a typical case in which person commits an assault that results in the death of another. As is clear from Mr. Chauvin’s actions, he had believed he was committing a crime. As a licensed police officer, Mr. Chauvin simply would not have done so. Mr. Chauvin ‘s offense is best described as an error made in good faith reliance on his own experience as a police officer in training he had received, not the intentional commission of an illegal act. And that’s the memo at page 11. How can they say that with a straight face, though?

Larry 47:27
I was a little stunned with that myself, if Mr. Chauvin had been taught about the danger of using this type of restraint, it’s difficult for him to say that he was merely doing his job. And then you combine that with the fact that Mr. Floyd did say I can’t breathe. And another officer even recommended to Chauvin that Floyd’s position be changed, to no avail. So, it’s very hard for me to agree that he was merely doing his job. But having said that, I think that adrenaline rushes can cause people to do things. (Andy: completely agree with you there.) That’s part of the good screening of police officers. We need people that are very even tempered, and they have to be able to suppress that anger and those emotions, you come up on a scene where your buddies are being attacked, and his view, he would have perceived that his lack of cooperation with getting out of the car as something that needs to be dealt with. And then if there’s more pushback from Floyd, his macho is going to kick in, and he’s going to exert more force rather than de-escalating, I would have tried to de-escalate, I would try to come and be the good guy and say, What’s going on here? You know, what, why is this happening? Let me have a talk with this guy. But that’s not the way police officers are trained. They’re trained to achieve compliance, regardless of what they have to do. To increase force, increase force, you will comply, you will comply. But I did have some trouble with that. With those statements as well. It again, it goes back to minimizing. And I felt uncomfortable with that. I would have argued with the attorney and said we can’t say this, but this is what he said.

Andy 49:11
Interesting. And then let’s just say the judge were to whatever the right terms are somehow he reads this memo and accepts it and grant some kind of leniency. What do you think the outcry would be? What would be the public’s response from that?

Larry 49:29
Well, it would actually be twofold. There would be some people who would be very happy. There are a lot of people who don’t believe he should ever have been charged, particularly law enforcement apparatus, but a lot of people who tend to be politically conservative, they would tell you that he should have complied. That he brought this on himself. But there the other side of this would be that this would be justice snatched away from them. Finally, a conviction has been achieved. And then the judge is going soft, and I would think that what happened to Persky would probably be relatively mild in terms of the reaction from the community that feels like that this is finally our day of justice. So, if he were to get any type of leniency, I don’t think the reaction would be very good.

Andy 50:08
Because you’d end up with an outcry on both sides.

Larry 50:11
It would be a jubilation on one side, but the people who believe that this is finally justice, they would be very… There’s really nothing the judge can do with this case other than impose a significant prison sentence, he can’t consider probation and prison, it’s got to be something of a significant nature, does he have to max them out? I don’t know. I would, I would hate to be the judge that has to explain why I didn’t max this person out. Because you’re going to need to read into the record. And you’re going to have to be ready to explain to an angry mob of people why you didn’t impose the maximum. So, I would hate to be in this judge’s position.

Andy 50:53
Interesting. I think that wraps all of that up, there’s, um, there’s a link to an article from courthouse news that will give you some of the background on this. And then there’s the actual memo, all that stuff will be in the show notes. Is there anything else before we duck out of this whole topic? We’ve been at it for about 20 minutes,

Larry 51:12
I think we’ve done the best we can, I hope it was helpful to people to understand. If you’re a PFR, high profile, particularly, this is the same site type of situation, you would be facing community outcry. And it would be very tough on a judge, even if they were allowed discretion to exercise that discretion. So that’s why we went down this rabbit hole. We were hoping to draw some correlations between how these high-profile cases play out.

Andy 51:44
I like the content that you develop for us. Larry instead of… we’ll cover the articles here in a minute. If we have a few minutes. Do you mind if I ask you that question that my friend asked about international travel?

Larry 51:56
Sure, I’ll do my best.

Andy 51:58
Okay, we started with a patron about six months ago, and he’s a good friend of mine. And he asked me today at lunch, if, so Georgia has a way to get off the registry. So, he achieves all that he’s done with the sentence, he gets off the registry. And he may or may not have the resources to perhaps like get a sailboat and then just go drift around the globe in all the waters. And he was asking me that he wants to know what the kind of requirements or restrictions would he have of getting into: pick random country? And I’m not like I don’t think like we know about places like the UK or Germany and like, but if he just picked some random island in the Caribbean Ocean. Like, what are they going to do when he shows up and knocks on the door and says, Hi, I’m here. I’d like to hang out here for a week, month years, whatever, just on a sailboat, though, not take up residence but just visit?

Larry 52:49
Well, there’s a lot to unpack in that question. And some of it we don’t know. But what we do know is that international Megan’s Law was signed in the tail end of the Obama presidency in 2016. So largely, all this stuff, the regulatory framework was put in place by the Trump administration. Because during the remainder of 2016, they were trying to figure out what to do in response to the law, and they were on the early part of the implementation. But the Obama administration and the Trump administration followed with the same policy. Even though the language of international Megan’s Law would appear to encompass anyone who’s ever been convicted. It’s only those who are currently registered that have any duty to report anything. So therefore, if this person has been removed from the registry, they certainly don’t have a duty to report anything, unless the Biden administration tries to more broadly define the requirements under international Megan’s Law. But that’s not his only issue. His issue is what’s going to happen if he tries to get into a country? And that I really don’t know the answer to because I don’t know to what extent that country is going to check the American criminal records repository system and what they’re going to have access to. What I do know is that America wants to know everything it can about people it admits, and it wants to check every database and it wants the home country to assimilate and accumulate as much information as possible on people that are admitted here. Something tells me that other countries have similar outlooks. That they’d like to know who’s coming in their borders. So will they have access to his American criminal history and they tell him, we don’t want you here? I don’t know the answer to that.

Andy 54:49
What about the travel advance notice three weeks before blah, blah, blah. What about all that? And describe what that is too.

Larry 54:57
Well, well, that won’t apply to him again, because I was pointing out the Trump and the Obama and I’m assuming the Biden administration. It’s so early that they probably not even thought about this. But they have not attempted to apply this to anyone who’s not registered. You told me this person is no longer registered, correct?

Andy 55:15
Well, I’m giving you the hypothetical that in a decade from now, or something like that, he gets off the registry. It’ll be a future thing.

Larry 55:23
If he’s still on the registry, he does have that duty to provide that advance notice if the state has it in the statute. Again, I hear lots of folks say, despite whether your state has it in the federal law, they are absolutely correct. It is in federal statute. But there’s no where to report it to that I’m aware of. It’s your local law enforcement that you provide that advance notice to who transmits it around the globe. Your local law enforcement transmits it to US Marshals who as I understand the process transmits it to Interpol. I’m not an expert on this, because I’ve never traveled internationally. But that’s my, that’s my understanding. And, therefore, if the state of Georgia doesn’t require that, if that’s not in the statute, I don’t know who you would file the information with.

Andy 56:17
So in his case, hypothetically, he hops on his boat down there in Savannah or something like that, and goes and drifts off into the sunset to, you know, never be heard from again, I don’t know that, you know, but he goes in visits, he’s not going to hide from the felony aspect if they do some kind of search to see if he is a felon of some sort. That would likely show up. Whether they care about or that’s another story. And he goes and presents his paperwork and gets admitted and has a good time and moves on to the next port. Possibly?

Larry 56:49
That is correct. Now, does Georgia require that 21 advance days advance notice of international travel? If they do, I would encourage him to make sure that Georgia law doesn’t require that. And then my next question would be if getting on a sailboat is international travel, if you don’t, in my mind, if you don’t cross the port of entry, you haven’t traveled internationally.

Andy 57:13
Okay, well, so you just go drift out in the middle of the Atlantic and come back, never visiting anyplace?

Larry 57:18
I would not consider that international travel.

Andy 57:21
Okay, but yeah, but then he goes and visits I’ll pick a random place. Barbados, that’s an international country.

Larry 57:27
Yeah, that would qualify. So he needs to make sure he familiarizes himself with the requirements of Georgia law.

Andy 57:36
Okay. I don’t really have anywhere else to go with that. You know that statute way better than me but I don’t recall anybody ever mentioning that particular subject being in there.

Larry 57:52
Uh, well, I will peruse it in the coming week or so. And we’ll see if there’s any such requirement. Many states have adopted it, either administratively or through a statutory change. West Virginia sent letters to everybody saying you have to do this, bring this letter to us signing saying that you agreed that you’ve been notified of this. And people dutifully went in and signed the letters and handed them in even though there was nothing in the statute at that time. I cannot say if they’ve put in their statute since then. I can’t keep track of every change. But unlike what Rosa Parks did, when they got these letters that said you better do this. They went, rushed to the offices to turn those letters in.

Andy 58:34
Okay. We got just a few minutes for some articles. Are there anyONE that you want to cover in a specific, and I’m saying that intentionally wrong specifically? Are there anyones that you wanted to hit before we get out here?

Larry 58:48
Not particularly. Did any of them jump out at you? I had these in here for filler and it doesn’t sound like we need any. The seven-year-old would be the only one that I would really, I would really want to say just a few words about the seven-year-old accused of rape.

Andy 59:02
I got this from the New York Times. Says a seven-year-old was accused of rape. Is arresting him the answer? Science doesn’t support prosecution of second graders, one lawyer said still in New York children as young as seven can be charged with a crime. That seems awfully young to charge somebody with a crime Larry.

Larry 59:20
Well, now, again, we’re going to do the unthinkable. What state is this happening in?

Andy 59:26
It would be in the liberal state, the very blue state of New York.

Larry 59:30
All right, so all right, if it’s New York, I’m coming down very hard on New York. I can’t believe you enlightened people that are so brilliant. And so much more sophisticated than the rest of the country would even think about such a thing. Even allowing an arrest. Now beyond that, I would question any law enforcement agency that would do a formalized arrest of a seven year old and I’m hoping that they didn’t and I hope that if they did arrest a seven year old they went out, took the seven year old, led the kid to the car. And did it as calmy and as friendly as possible. But I find that so distasteful. A seven-year-old could not even begin to understand the criminal justice system. They couldn’t even begin to comprehend what’s going on with them. That is just unthinkable to me. And I think there’s a movement, I think in the article said states are raising that age. And I think it’s very appropriate and it’s late that we would have to go back and change this. We never should had the possibility of doing this to a seven year old. What’s wrong with you, people?

Andy 1:00:42
You people, all right, I, you know, we just crossed an hour. I think we could probably get out of here. I do want to point out that if you happen to be watching the video, and you can look up here, there’s a tenor saxophone in the back of the screen in the back of the studio here at FYP East. Because I broken the thing out and dusted it off, and I’m getting ready for when we cross 100 patron mark and we’re getting closer and closer. So get your votes in. When you are a patron, you get to vote for the your preferred song, I have four listed, and I will be performing that for our patrons.

Larry 1:01:17
I can’t wait till we get there. There was one other article that was interesting to me. Senate now Minority Leader Mitch McConnell signals concern over changes to qualified immunity. And this is the police reform where police basically get a free ride on a lot of things they do. It’s a very high standard to overcome qualified immunity. And again, I just got through bashing liberal New York. I’m getting ready to bash conservative McConnell. So, but it’s over policy. McConnell’s on the wrong side of this. Qualified immunity is too broad. It’s an invented thing. It’s not in the Constitution. It was invented by the Supreme Court, I forget what year but decades ago, and it’s time to revisit qualified immunity. And McConnell doesn’t get a free ride just because he’s a conservative. He’s on the wrong side of an issue. And I just called him out.

Andy 1:02:09
All right, not a fan of this particular individual at all. I think that is about all we have. Larry, is there anything else before we skip out of here?

Larry 1:02:21
Do we have any new patrons? I did not receive any mail-in subscriptions. And I also had asked for people to give us some feedback on how punctual they’re receiving their, their transcripts. And those haven’t arrived yet. So, I’m gonna blame the post office that they’re in route. And they just haven’t arrived, but we need some subscriptions. And we need some shout outs from the people who receive them.

Andy 1:02:42
I think that we should possibly defund the post office then.

Larry 1:02:47
I think they tried that.

Andy 1:02:49
I think they’ve been doing it for a long time. Um, no, there were no new patrons. But I do want to thank that we had a rush of them last month. And I can’t thank everyone enough. That is a new patron, and definitely ongoing patrons. You guys and gals are amazing. And I can’t thank you and appreciate you enough. Anything else Larry? I’ll do the closing stuff, and we can scoot on out of here.

Larry 1:03:13
I think that does it. I enjoyed being with you this week.

Andy 1:03:16
Awesome. Appreciate it. Find all the show notes over at registrymatters.co and then leave voicemail at 747-227-4477. That’s how we received two of those. And then there’s email registrymatterscast@gmail.com. And finally, again, the best way to support the podcast show some love is patreon.com/registrymatters. Find us all over social media and all that. And Larry, as always, I thank you so very much for super neat content. From our point of view that doesn’t get covered. I don’t think there’s anything else that covers what we do here. And tell me in some sort of comment or somewhere that somebody else is doing it better than us, but I think we got it covered. So, thank you, Larry, as always, and I will talk to you soon.

Larry 1:04:01
Thank you and good night, everyone.

Andy 1:04:04
Take care. Bye.

You’ve been listening to FYP.


Transcript of RM179: It’s About Good Policy – Not Partisanship

Andy 00:00
We’d like to thank our patrons for supporting this episode of registry matters. Recording live from fyp Studios, east and west, transmitted across the internet. This is Episode 179 of registry matters. What is up there? Mr. Larry, on a Saturday night? How are you?

Larry 00:16
Fantastic.

Andy 00:19
anything exciting going on in the in the Larry Nader’s world on a wild Day weekend.

Larry 00:24
Not anything particularly exciting, just glad to be with our fabulous audience. And looking forward to a short podcast, we’re gonna keep it nice and light.

Andy 00:35
Perfect. So we’re finished right there, we’ll just shut it down and call it a night. Sounds good. We were just talking, it’s a pre show about possibly some Patreon extra stuff. Let’s Let’s tease some things maybe. So some people would be inspired to come over and do some Patreon for us? What kinds of things might we talk about as some Patreon extra stuff,

Larry 00:57
we were talking about the immigration problem that would be easily solved and why our political system will not allow that to happen. And the economy is being held back because we don’t have the workforce that we need to do the work. We were talking about public assistance benefits and comparing those to social benefits of other types of people who get a little bit larger check because they’re on public aid, and they have a larger family and about whether that’s good public policy or not. So we’re thinking about talking about those that none of those having to do with the registry. But it’s about ponderay policy, and how how the formulation of public policy happens, which is directly related formulation of public policy is in response to the will of the people. So that’s the that’s the correlation of the connection, but it’s not directly on point.

Andy 01:48
Of course, of course, then since this is going to be it’s kind of like a throwback to what we were doing. I don’t know, six or nine months ago, what are we going to do tonight?

Larry 01:59
Well, we’ve got a couple of questions. And we’ve got some articles. And we’ve got one thing to read from a prisoner who’s tried to effectuate change from behind the walls, and we’re going to give him a shout out for what he’s been doing.

Andy 02:16
Excellent. Then I guess we will begin with some of these questions. Our first question up is I don’t understand why you people don’t have regular segments on recurring issues. I would like to hear about more about early termination from probation petitions, removal, removal from registration petitions, interstate compact transfers, and travel from state to state. I’ll also add there and as a personal I see questions from people all the time about going to other countries. I know you’ve done all of these issues, but it’s not consistent. And we forget, would it not be possible to take a question each week on all four of these? My other observation is about the polygraph segments. It seems as though Larry is okay with polygraph testing, and Andy thinks they’re junk science. I would like for Larry to stop evading issue and see where he stands on polygraph tests. Are they junk science? Or are they acceptable as much to unpack there, Larry, what do you

Larry 03:12
think I’ll start on the polygraph testing because they probably are junk science. But the reality is, they are allowed for monitoring people who are on supervision for the type of offenses that we deal with in many states. In particular, there’s a statute in our state law that says that I think I’ve read other state statutes that says that. So whether or not they’re junk science is really not the point. The point is, how to best deal with the junk science. And what we’ve consistently tried to do is to help people understand how they can get through the process of the polygraph without getting themselves in further trouble. But I say that they probably are junk science. I didn’t used to feel that way because they were always successful. At our law practice when we referred someone to a polygraph and they showed deception, they always confessed and admitted that what we thought they did is what they did do. But ever having talked to the administrator of most of our polygraphs, he said that there were no better than flip of a coin.

Andy 04:25
If you go back, I’m pretty sure it’s episode two. So we had just started I think the first episode was something related to AWS. I’m pretty sure. And then the second episode was about polygraphs. And if I recall, right, you had a conversation that day and you were like, well, Andy, I What just happened? Oh, I know what happened. So you had a conversation and then you decided that you needed to have a little bit of a change of mind about what what the polygraph was all about and how it worked and all that stuff. But to that, Larry, I’ve also changed forget whether it works or not. I mean, like, forget, forget whether the actual polygraph does anything. If you say someone showed deception on it, and then crap my video first Um, and then if they cop to it and tell you all the things that they’ve done wrong, well, then I guess the polygraph worked.

Larry 05:18
Well, that’s been my position that if if the person acknowledges that what we think happened did happen, and they didn’t acknowledge it prior to the polygraph. What else could you conclude?

Andy 05:32
I totally understand I got nothing as far as how to work my way out of that one, other than if you go take a polygraph. And they tell you that you’re showing deception, don’t ever back down and admit to anything because they’re not because I think, from what you’ve said, is, you’ve never seen anybody that got revoked, for showing deception or something along those lines.

Larry 05:55
I do not believe that anyone can show me a petition for revocation of supervision. That says, We seek revocation on behalf of the State, because this person undertook a polygraph examination to show deception, and then the petition stops there. If you show me that petition, I will admit it and say I’m wrong, but I have not ever seen one of those, you will show me multiple petitions that says to person show deception on a polygraph. And at a post test interview, they admitted to a plethora of things to the examiner and to the probation officer. That’s a whole different revocation petition, because it’s not the polygraph that got you revoked, is your admission and confession to violate your terms of supervision. I have seen petitions where people have been dropped from treatment because they’ve shown multiple episodes of deception. And since they have actually held their position and said, I’m telling you the truth, they’ve been dropped from treatment. And that has resulted in a revocation that puts you kind of kind of in a catch 22. If you if you hold your ground aside, I’m telling you people the truth, can’t explain your Kabuki machine. And they revoke you drop you from treat, but I revoked you for not complying with treatment, you really didn’t gain that much. So it’s a terrible position to be.

Andy 07:25
Yeah, I’ve told this before a friend of mine was in treatment, this is years ago. And he was working for barely above minimum wage, maybe eight or nine bucks an hour. And he was doing very manual labor. And it was around Christmas time. And he’s paying like 23% child support off of minimum wage or something like that. And they said he had to take a polygraph. And he said, I don’t have the money to take one. And I’m like, Well, sorry, you gotta get dropped from treatment. And if I drop you from treatment, and that’ll be a probation violation, and you’ll go back to prison. It’s like, that’s how what are you supposed to do? So his probation officer gave him a one month pass, and he would have to take it like in January or whenever it was. That’s ridiculous.

Larry 08:03
That’s unfortunate. The reality of of many of these regimes that they have at last check in by state. They had provisions for indigent people where the polygraph would be paid for by the state. But I don’t know how many states do that. And I’m not even sure we’re still doing that. But at last check. That’s what they were doing. But let’s get on to the first question, because my answer is real clear on that. I can’t help myself, I’m not going to admit something. And if I’ve told the truth on the polygraph, I’m not going to change my story to satisfy the examiners post polygraph questions. I don’t know what else to tell you.

Andy 08:44
There’s a couple other things in there. We have been covering the subjects, to me almost to the point of the different areas that we cover a lot. I’m almost thinking that we cover them too much. I don’t know that we need to I don’t know that I would feel comfortable that we would have enough content to do one every all four of those every week to do probation, petitions removal and all that stuff to do that on a that consistent basis. But when they come up with something of a novel question,

Larry 09:11
well, what the person is really angling for. And I don’t know that we can do it, because we don’t have any ad lawyers. But they’re wanting us to take particular questions from an individual who’s facing one of these things. And I don’t think that we can really do that effectively.

Andy 09:33
I mean, like I said, I see, I see questions on Reddit, and then you throw them in here. So I don’t know that we could do it that way. But anyway, if they come up, we’re certainly going to cover them. But the whole point of this is if you have a question about a thing, and it was something that we already covered, then you could go back and listen to 10 or 20 or 100 episodes ago. This is like an archive of all of the current knowledge about what’s going on in the registry world.

Larry 10:00
Well, I guess the point, I would make all that is that if that were the case, then no radio station would ever be successful. Because you would just say, we covered that news story. bunts today already was at 7am. And therefore, you didn’t listen at seven. So don’t bother. We’re not covering it again.

Andy 10:17
The difference between that and the this in the radio, though, is that you can’t go back in time unless you’re recording segments. But no, I mean, like, we can certainly go back and cover AWS and polygraphs. Again, and I’m not opposed to that at all. Just that if we constantly cover the same thing about polygraphs and early termination petitions, then it’s going to be a very boring show.

Larry 10:38
I would agree with that. We would really need fresh questions. And if if the people want to submit fresh questions, and if they want to listen to an answer that they may not agree with, because I’m going to consistently say the same thing. I’m going to say that, yes, we can’t give legal advice. But if I were doing this, as a friendly consultant, here’s the things here are the things I would tell you to do, and recommend that you do. And we can we can do that. But probably we could rotate through the different topics. Rather than try to do one of each one every week, we could rotate through those topics. And of course of a month or five weeks, we could rotate back and by Did you forgotten what we said five weeks ago?

Andy 11:21
Yes, exactly. Exactly. I think that was all the things they’re not getting on to the second question.

Larry 11:28
That is correct.

Andy 11:30
All right. So question number two, it says Larry always recommends that people get an attorney for every issue. I’m probably better informed on this than most any lawyer. I want to get off registration. And my state does permit petitions. Why is it that I can’t just simply do a petition myself and tell my story to the judge? That’s a legit question. Like, I like that. Why can’t we just tell the judge, hey, I’ve done these things, I’ve complied. Why do we need to go go through the whole rigmarole of hiring an attorney for 30 505, Grand 10, grand whatever that number is, and just have the judge award us what we are asking for?

Larry 12:05
You can you are permitted to do that? Absolutely, you can do that. And I don’t recommend it, because we’ve covered before. But here’s what I was thinking for. Probably wouldn’t be bad to mention it again. To increase your odds of success on your petition for removal, you’re going to need to consider a lot of factors that the average lay person hasn’t been trained in considering, you may tell a great story to a judge. But it may not be a great time to tell that story to the judge, because it might be four weeks before that judge is going to face an angry mob of voters like judge Persky did. Therefore, therefore, an attorney might be able to guide you past that troubled period of time, the same thing but applied to the prosecution. And that jurisdiction, most of these petitions are served on the prosecution, the district attorney, the prosecuting attorney, whatever they State’s Attorney, whatever they call them in that particular jurisdiction. And you may be in the midst of a high profile case, that would really sink your ship, because there’s been a lot of publicity. And this might not be a good time to file a petition. So therefore, those things A Legal Professional can help you with the legal professional can have the conversation with the district attorney’s office, and find out how they’re going to posture on your particular case, what their, what their opinion is about you, and how vigorously they’re going to fight against you, you’re not going to be able to have that you will be able to talk to the judge, the judges general gonna let you make your statement. And you got to read your petition if you can put together a coherent petition. But it would be a whole lot better if you knew what the state was going to say. Before they said it. Because it would help you would be able to set yourself up with supporting evidence of maybe a psychosexual evaluation. Or you might be able to call some witnesses that might offset what the state’s gonna say. We just don’t know that. And those conversations are not going to be able to be successfully had between you and the prosecution.

Andy 14:13
I guess we could equate this to almost anything that you might do on your own, whether that’s changing oil, or doing some thing more probably not changing oil, because that’s pretty simple to do, but something a little bit more heavy lifting on fixing your car, you could probably follow a manual and take apart the pieces. But there are certain levels of expertise where it’s not just common, unscrew this, but something more nuanced. That’s a little obscure that goes on when you’re doing one of these things. I mean, you know, I work in the computer field and sure you can do all kinds of things on your own. But at a certain point that expertise level becomes so great that you need to call in a professional because they know a bunch of the traps and pitfalls that you’re going to run into. Same thing with like you and legislation kind of things if we talk to you and ask you questions about how a bill what kinds of traps might there be or conversations that we need to have with an opposing politician that your expertise kicks in, in those areas to tell us what kind of traps we might run into?

Larry 15:11
Absolutely. When you don’t understand a game, it’s really not a good arena to play. And that’s what I stress to people is, this is not a game that you do very well, because most people don’t understand it. You might have seen some sub episodes of something resembles court on television. But that is not the real world in most cases of how things are done. And when you’re not quite sure, when the stakes are as high as they are getting off the registry. And And particularly, you won’t be able to file a petition again, sometimes for years. I would think you’d want to be successful.

Andy 15:52
Yeah, I think I agree with you. Anything else you want to cover there before we move on to this other note from the person? No, I

Larry 15:59
think we can move on, because we’re almost at our full hour now.

Andy 16:03
Now, excellent, perfect. All right. This was can you tell me Who wrote this? Is this? Is this from Gerald? Is that what it is?

Larry 16:11
Yes. He said, I think he’s in federal prison, if I remember, right.

Andy 16:19
Okay, and I think it gets set up by reading it says I’m writing in hopes of dialogue and adding to the Hate Crimes Act bill to protect additional classes of people. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, which extended protections to victims of crimes committed based on a person’s actual or perceived sexual orientation, gender identity or disability. Today, despite great progress for civil rights, these crimes continue in communities nationwide and in prisons and in the US Department of Justice should continue to be vigilant in its efforts to bring those practice. Those who practice hate fueled violence to justice, a lot go unreported because of fear of retaliation or death, especially in prisons. I’m asking that this bill be amended to add some of those who have been convicted of sex crimes. They are US citizens, US citizens and human beings and therefore should be added to that bill for the LGBTQ community. Because we people have made them to be a group because they are outcast to groups just for protection. I’m asking for your help in considering these types of people be added to that bill because of vigilantes in the prison, and out asking to add this with the ex post facto act, because this is the same as terrorism, torture, and no one should get away with harming another citizen of the United States of America, just because of its crime or alleged act. We all know that the DEA is only want to convict not acquit. Even though both of those are their jobs. No da, no da, it’s a hate crime. Even when you set it up like that. Stop the hate in America. That last sentence is a little hard to read. I didn’t quite figure out how to edit that one while I was reading it. But we get the point.

Larry 18:03
So well, the the Matthew Shepard is so old. A lot of listeners won’t even remember the name. But he was a young college student. And Cheyenne, Wyoming, I believe it was 1999. in that era, he was picked up in a bar. There’s not a lot of gay bars anywhere in Wyoming, but actually be surprised if you found a single gay bar in Wyoming. But he was he was picked up by a couple of straight guys. And he thought he was going to go out and have a romantic evening. And they they started beating him as soon as they put him in the pickup truck. And they tied him to a fence post and I left him and he died after being hung on a fence post outside town for some number of hours. And so that was that was what he’s referring to. But he wrote this to the US Department of Justice and civil rights, civil rights division. And I would personally be supportive of expanding hate crime protection. It generally draws a lot of resistance from the conservative side of the aisle because they say their argument is that it’s already a crime to do these things, which is already against the law, to beat a person in time to a fence post. We’ve already got a law for that. But what I used to miss when I used to feel the way that they they feel their response is that it those things are against the law. But you don’t want people sitting around thinking about committing crimes and the mob mentality to sit in when they’re targeting someone because of their sexual orientation or their race or all those things. Because that’s, that’s the most heinous thing about it is already heinous enough to go rob a person. We would prefer that you not do that. But if you’re hanging out with two or three your friends and you’re drinking a bud and you’re doing your Friday night thing is that you say wesco woke up lonesome, whatever I didn’t want to use the majority is but whatever, you go out and you start targeting those people, you would not have committed a crime. But for hate of that group, that is an additional crime on top of the crime. And that’s what I had trouble seeing. At one time in my life I used to buy exactly until the conservative talking point that these things are already against the law, and they are. But

Andy 20:31
just just bet this around with me for a minute. Doesn’t that just make it illegal? Or?

Larry 20:37
Well, it does make it illegal or if there’s any such word. But what what would happen if people who are not predisposed to do crime to begin with? And the group mentality, the mob mentality? What if you were referred to it? If you if they know that their hatred of the particular group is the thing that’s driving them to prison, and they wouldn’t have committed the crime? But for that hatred? Could that be a deterrent? Maybe?

Andy 21:10
I suppose if, like the the young lad that was killed about a year 18 months ago in Southeast Georgia, if that has a hate crime attached to it, does that then make it across banners across the news saying that this was being charged as a hate crime? which I’m sure it is, but does that then deter the group of people that hates the other group of people from doing those kinds of things? They’re still going to hate them? Larry, I don’t know that it changes that?

Larry 21:37
Well, I don’t know that it does, either. But the threat of a severe penalty might, if we didn’t believe that penalty is deterred. Why do we even have penalties to start with?

Andy 21:48
I think we’re just mad at them when we take them off the street.

Larry 21:53
So do you don’t think that deterrence is any factor in the equation?

Andy 21:58
I, if you are a person that just hates on, you pick your subclass of people, whether that’s, that’s LGBTQ, whether that’s based on race, if you just hate them for that reason? I think you’re just going to hate them anyway. And I don’t know what stops you necessarily from from just going out and going on a rampage. But some level of human decency, I don’t know that it’s a deterrent, like, Oh, my God, if we go do this thing, we’re gonna go to prison for 50 years. I don’t know that that factors into the equation.

Larry 22:26
Well, the test the same argument, but general deterrence, that that’s made all the time, how much the criminal penalties deter people? I don’t think I can answer that. But

Andy 22:38
I think it would vary from person to person.

Larry 22:40
But I think there is a deterrent factor. That’s the reason why. If if we didn’t believe that we would not even have penalties, we would say, well, that’s not gonna stop anybody from doing anything. deterrence and, and protection, there are some people in addition to deterrence, you also want them not to be able to act. And if you think you can’t deter them, that’s place for prison is a certainty. The criminality drops considerably when they’re in prison, not completely, but considerably because of the restricted movement.

Andy 23:13
Yes. That’s funny, yes, I getting locked up with at least prevent you from doing to the general population, you can still certainly do criminal activity to that isolated group of people, but you’re not going to do it to just you know, grandma Jones down the street. So, well, let’s keep moving along. Then, Larry. We have an article here. The first article up is from SCOTUS blog. And it’s just says won’t here Missouri inmates request to choose firing squad over lethal injection. It looks like this story is about an individual who had I think a tumor removed and he’s missing a fifth of his brain. And he believes that the current concoction of the lethal injection drugs may cause him to be have severely painful and prolonged seizures during the the injection. So he wants to be shot by a firing squad. And it looks like they’re denying this. Is that right?

Larry 24:10
I have mixed emotions. Yes. The liberals said that they were disappointed that the conservatives didn’t want to hear this case. They dissented. But I have mixed emotions, because I put it in here for the reason that I want to, to emphasize. People say Larry, why don’t you argue the righteous trees unconstitutional because it constitutes call unusual punishment. And I say repeatedly, if the capital punishment, the various methods we put people in death in this country is not cruel and unusual. It’s difficult for me to conceive that anything short of that is going to be considered cruel, unusual. So here’s a case where the Supreme Court, the conservatives are telegraphing to you that this man may suffer lots of pain in his execution. The cruel and unusual punishment clause is not adequate that they don’t deem that. So if if torturing a person to death, if not cruel, unusual punishment, I don’t think registration is that’s why I put it in here. But the thing broke down broke down liberal versus conservative in terms of the petition for cert and who voted to grant certain who did.

Andy 25:21
Yeah, if we go back to 240 years ago, what was considered cruel and unusual punishment, as long as you didn’t enhance the torture? You could, if you wanted to execute someone that was okay. You just couldn’t execute them slower, I guess like you couldn’t blood let them let’s I don’t know, let’s make up something. So if that’s considered constitutional than just having some people go visit the Popo on an annual basis and get kind of harassed on a regular basis, that sounds like that’s not nearly as bad. I agree with that. I don’t agree with it. But I agree with that concept.

Larry 25:55
You and you understand the reasoning of the court. If you believe that we strictly interpret the words. And that’s all we do. And we interpret those words, based on what was accepted at that time. Capital punishment was widely used in colonial times, there’s no way you can conclude that it was unconstitutional, and that the framers had any idea of making it unconstitutional. Therefore, you can’t make a constitutional argument successfully to a textualist. The same thing on the cruel and unusual punishment clause. If you look at punishments that were acceptable at that time, in that era, if you don’t do any evolving as a society, then having extreme pain, even though we have means of executing people that are less painful. That’s not cruel and unusual punishment.

Andy 26:56
Did it? I don’t see in this that it broke down six, three. Is that how it came down?

Larry 27:00
That was what I thought I had read. But our listeners will correct me I’m looking

Andy 27:05
for a six dash three, but I don’t know. I don’t see what it says. So to my your wrote the dissent?

Larry 27:09
Yeah, I think it was joined by the other, the other the other two, the other two liberals. But that’s all right. It’s it’s not cruel and unusual punishment. We’re not going to win in our battle and cruel, unusual punishment. Not as long as we have a court that’s composed of the membership that we have. Now. I know that our audience wishes that the conservatives would be our Savior. And they, they so many of them believe that, but they’re not.

Andy 27:36
And then for clarity on how we get the nine justices that we have, I just want to make sure that it’s completely clear, as presidents nominate senate confirms. So we would have to have a president that thinks the way that we would want to think about this kind of subject of what we would consider cruel and unusual punishment for them that person to nominate. And then we would also have to have the composition of the Senate to think roughly along these lines, that they would confirm those kind of judges.

Larry 28:02
Yes. And what we learned during the previous administration, is that, that they will rush approvals through at breakneck speed when they have control of the presidency. And we learn that they will hold up confirmations and let a backlog of vacancies develop across the federal judiciary. When they are in control of the Senate. We learned all of that. And we were it’s funny, they ran against packing the court. And they did more court packing than has ever been done in our history.

Andy 28:40
Over the 400 judges just judges at the federal level appointed during the previous administration.

Larry 28:47
Yeah, and a lot of those. It was it was funny, whether debates and bide was so off his game that he didn’t respond. But it was mentioned a debate. I was handed a whole bunch of vacancies. And the thing would have been to a sadness. Yes, you were but it was because all confirmations were basically shut down for two years. And you’re ready to vacancies, not because the president at the time wasn’t nominated judges, but the senate wasn’t confirming the nominees.

Andy 29:18
But the lady To be fair, though, I don’t know that that makes it out to the general population. they they they don’t know. This is what the processes that the President nominates. And then the Supreme Court then confirms the judges at the federal level and at the supreme court level. And I guess the term is in the Constitution. It’s with the advice and consent of the spring of the Senate. So the President could do all he wants but if the senate doesn’t go along with it, which I totally accept and like that it’s not just one person making up a rule. But then you end up with a POS in the senate named mitch mcconnell who shuts it all down and won’t let anything go. Why don’t they let Go on the record and go vote and then you know whether the person in your state was one of the people that you would like or not like, they just shut the whole thing down and didn’t even hold a vote for any of them.

Larry 30:11
That is correct. And you misspoke. I wanted that cleaned up in the transcript. You said the Supreme Court confirms the senate confirms. But

Andy 30:18
oh, my bad, my bad, my bad.

Larry 30:20
That the the advising, consent is a little bit unclear, but we have history and prevent the precedent of how confirmations have been handled. And that’s what we generally go on. And the fact that judges normally were considered, and unless they were deemed qualified, they were given a vote. And the reason why they were not given boats in less than the last administration before before Trump was that they would have been confirmed, because there wouldn’t have been any basis to not confirm them. The same thing was with Merrick Garland. When he was nominated to be on the US Supreme Court, had he had the committee held a hearing and referred him to the floor, he would have been, he would have been overwhelmingly confirmed as as a Supreme Court justice. He was already sitting on a court of appeals, so he would have been confirmed.

Andy 31:14
Ready to be a part of registry matters, get links at registry matters.co. If you need to be all discreet about it, contact them by email registry matters. cast@gmail.com you can call or text a ransom message 274722744771 a support registry matters on a monthly basis, head to patreon.com slash registry matters. Not ready to become a patron. Give a five star review at Apple podcasts or Stitcher or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting without you. We can’t succeed. You make it possible. I understand. Well, then let’s continue on sir. And there’s a next article same other let’s move over to the Marshall project. He died like an animal some police departments hogtied people despite doing the risk. This is Larry I had I guess I’ve seen this. But there’s a there’s a picture up on the screen that let me make sure that this is up there right now. Like people have seen this where you have your arms tied behind your back and then that’s adhere to your legs that are also tied. It’s something you see in like cowboy movies or something like that, I can see that this would be an effective way to restrain people. But I can’t imagine that this would actually get used on a regular basis. But this article describes that they use it pretty regularly. It’s very sad.

Larry 32:46
It is a dated these are one of the things this would be one of the things that would be addressed and police reform that you would prohibit these type of things kind of like the the shackling of a pregnant woman when they’re giving birth. Yes, putting handcuffs on a 12 year old 11 year old kid in school, because the law enforcement apparatus and I’m talking directly to you law enforcement apparatus, you’re incapable of making the rules yourself. And that’s why we as your employers have to forbid you to do these things like all employers forbid employees to do things that are not acceptable. You should not be allowed to do these things. And I will do all I can to help pass laws and support proposals that will stop you from doing things like like shackling pregnant women when they’re having a baby and putting hardcore handcuffs on a child in school because he burps too loud it’s disruptive in class, those type of things are not acceptable please conduct and you are not able to restrain yourself. So we will have to restrain you.

Andy 33:56
I didn’t, I guess I didn’t realize this. I didn’t I didn’t put the connection together that when they when they pull that super taut, and they and there’s a picture up on the screen of if you are pulled cinched all the way tighten your your body is at more than a 90 degree angle that puts pressure on your diaphragm making it very difficult to breathe. I’m like well, yeah, that would make sense. But I didn’t really think about it. So it would become very uncomfortable. But I like Why couldn’t they just sort of leave you a Mobileye like handcuffs and leg ankle shackles, what are you gonna do? You can’t run if you got shackles on your legs. He just can’t. I don’t know what you supposed to do.

Larry 34:33
Well, you’re missing parts of police training mentality. Unfortunately, police training is is driven by the threat of death. They convince these people when they’re training, that everybody’s carrying something in the rectum that everybody’s got bad guidance gonna kill you. You won’t make it home to your family. And they teach compliance and escalation tactics are largely By the way of achieving compliance, they don’t teach de escalation. They teach escalation. And this is to show and demonstrate superiority of force, you will comply and this is what will happen when you don’t comply.

Andy 35:14
Yes, I get it’s, it’s I’ve said this before, it’s not a it’s not to serve and protect, it’s to dominate and oppress. That’s what the police should have on their, on their cars down instead of to serve and protect, they should dominate and oppress. Alright, so so we get hogtied. Great, cool. Should we move on?

Larry 35:36
Let’s move on. This was about public defenders. I think

Andy 35:40
this one is lawmakers consider bill to ensure rural counties appoint public defenders independently from the judiciary. Can you explain that to me because I, I don’t under I don’t even understand how that concept works defenders independent from the judiciary.

Larry 35:55
I was hoping that you could explain it because I didn’t read the bill number AB 480 in Nevada. But it appears as though that they’re going to try to make a more robust defense system in Utah, particularly the rule of Utah, Nevada, particularly the rural areas where it’s haphazard at best, and it’s going to cost some money. And therefore that’s going to make a difficult sell. And the political environment spending money for criminal defense is just not a very popular thing that gains votes.

Andy 36:27
The thing that it would make sense to me is that there’s an independent group, there’s like the public defender’s of fill in the blank of state. And that would be an independently funded organization outside of the judiciary that but as far as I know it the public defender’s work in the same building as the DA does, or at least something nearby. They’re very they’re tied together, that would, to me would create a potential conflict of interest.

Larry 36:55
Really? How so?

Andy 36:57
Yeah. Just that they are rubbing elbows together. They’re having lunch together? I mean, public defenders are ridiculously overworked. But if they’re a public defender should be effectively the same as a paid attorney. They’re just publicly funded. And they should be. They should be there to advocate to your best defense and not part of the judicial system itself. I guess. I don’t know if I’m being clear in how I’m articulating that.

Larry 37:31
So well, I guess we could come back to this in a future episode. But if it’s if it’s increasing resources for indigent defense, and making it in a more formal process, rather than haphazard, where the judge says, Hey, they’re got this case, or would you mind taking it for me? And they point out in the article that some of the attorneys are like what we refer to as a Guppy or a newbie, and they’re being asked to take take very serious cases. And they probably don’t have sufficient experience and background to take these serious cases where so many people are facing lengthy prison sentences, including life or maybe even capital punishment. And therefore, it’s important that you have robust defense and qualified defense. But no state likes to spend money on that. It’s just not like appealing go out, run a campaign tell people you want to spend more money on the edge of the fence. So tell me tell me, what kind of reception you receive.

Andy 38:27
Shoot, if you run a campaign on indigent anything, you’re not going to do very well, I don’t think. Okay, well, then let’s move along to Colorado. CBS, Denver is where this come from comes from Colorado district attorney sound the alarm over a bill to revamp sex offender management. This was something that someone posted in discord, I believe. And it says a bill dealing with sex crimes has exploded and controversy at the Colorado State Capitol district attorney say the bill would allow some of the state’s most violent pfrs to be released from prison without any treatment. And did you have any thoughts on this?

Larry 39:03
I sure do. I think i think i think it’s amazing. You have a system where treatment is so underfunded. So people were imprisoned and they cannot get treatment. And they’re trapped there. And now the district attorneys, they’re crying. They’re crocodile tears, about how much they want these people to have treatment, what they really want is extended prison. And this is a convenient way to keep people in prison. Because Oh, we would be happy for them to be out if they had the treatment. And it’s just would be a tragedy if they were released without the treatment. Of course you’re not doing anything to try to increase the budget for treatment. You’re just magically concerned that they’re not getting any treatment. Well, that is just so transparently dishonest. The way you force people to provide funding for But as you require them to be released, what their day comes for release, like I say about our state when when you’ve done your time, we don’t have early release here, you do a parole period that they named parole, but you only get to that after you’ve done your time, we need to change our law that says all that day, you shall be released. And magically, we will start finding the funding, so that we can put these people in supervised settings rather than just having them roaming the streets, but they should walk out the prison when their time is up. And I don’t know the system in Colorado well enough to, but I think there’s a lot of similarities, they do their time. And then they have these long, extended periods of supervision. And they can’t get out because they haven’t had the treat. But they’ll find the money. If you start releasing them, they’ll magically find the money.

Andy 40:54
I’m thinking of how things went for me in Georgia that I to make parole that I needed to complete x, y, z classes, classes did not become available to me until I was getting like ridiculously close to maxing out forget parole, just maxing out the whole sentence. So then they magically found the space for me to get into a class so that I could max out and do the whole sentence. And I know Georgia is different than other states having split sentences with parole probation and and then completing your whole sentence and all that. But they could have sent me through the classes to help me get out two years earlier. And then maybe I could have made it out on parole two years earlier,

Larry 41:30
but they didn’t. So well. We used to have, we used to have a messed up system here where juveniles were supposed to be taken before a judge within so many hours. And that wasn’t happening. And we recognize that the law said that they shall be taken before a judge, but yet the judges were not seeing them within that requisite. And I don’t remember the exact number of hours. But I work with a senator who said there’s an easy fix for that. He said, let’s just add one sentence to the law that says if they’re not taken before the judge, they shall be released. And magically the judge rules, judges will start finding a way to hear them. Well, a couple of senators that don’t do criminal law, but yet our attorneys, they were saying well, I feel uncomfortable about that, because bad people might be released. They said don’t you don’t have to worry about if you have it in the law, that if they don’t see a judge within that requisite period of time, they shall be released, the courts will find a way to see them.

Andy 42:32
Um, but given the court not having infinite resources and infinite time, then Wouldn’t that push other people’s cases? Wouldn’t that push that back? Also, I mean, there’s only a finite number of hours and judges and resources to handle all of this stuff. Anyway,

Larry 42:47
that would be true, generally, civil cases would be pushed aside and they would have to wait their turn, we might have to look at possibly increasing judicial resources. If we can’t curtail the number of cases that are entering the system. I remember, the defense attorneys have very little to say about which cases that are the system. If you look at the system of how cases are introduced, who does introduction of a case to the criminal justice system, is that the defense attorney of the prosecution most likely the DA, right? So the person you elect Susan, yeah, the person you elect, that tells you that running on a platform of law and order, and I’m gonna make you nice and safe. Remember, when you go in and you punch that name for them, you’ve just done the opposite of what you claim you’re for. Because when they tell you that they’re the law and order person, that means that they’re that they’re going to prosecute everything they can get their hands on. And that’s part of the problem. I

Andy 43:46
hear you. Alright. Well, let’s go over to the appeal. And this is how these cities are breaking up the work of police departments. I think if I was reading this right, that they were talking about, let’s see if this was the right one, they were talking about changing the name of like a police force to was it public safety or something along those lines to separate out that you have? You have another it is that it is it’s it’s because Mayor made headlines in February when he proposed replacing the city’s police force with armed and armed public safety officers. That’s not defunding the police that’s changing that you have people that are there for aggressive situations and you have other ones that are there for de escalating kind of situations. Sounds good to me.

Larry 44:31
Sounds good to me, as well. The problem is it gets it gets sold misrepresented. When when you hear that term that was coined in there good quoting terms that that resonate with people defund the police. They act as if that that that you’re just gonna abolish the police and call it quits and let the criminals roam. No, that’s not what anybody’s talking about doing. They’re talking about re allocating some of the police Funding for baby to people who are better equipped to handle things, the police get stuck with a lot of things that they, they’d probably rather not do. And if you if you could have that dialogue with the police, they would tell you, hey, we’ve become the social workers we’ve become. I mean, you ask a jail administrator, particularly, they’ve become the psych wards. They don’t want to be a psych ward. There’s a lot of lot of police duties that that police could probably do without that would be better done with someone who’s not quite as threatening as a police officer can be to those who were in stress of their life, mental stress. But, but we’re not we’re not really going to be able to have that conversation because the Define anti define this soul is so convincing, that, that it’s that is so much hyperbole there that I don’t think we can, there’s so many things that we really can’t have an honest discussion about this country, because you get vilified for trying to do so.

Andy 45:59
Totally just just like that. The ad we played a week or two ago that you were talking about just a little while ago on on this episode. But we played that clip from Adam remember the guy’s name, but was bashing the other person for the something bill, we got to pass the something bill in Congress.

Larry 46:16
And in fact, that election is happening on Tuesday. And it was the breathe act. Ad he said that that we would let rapists and murderers child molesters free. And that that she would want to close all federal prisons with a 10 years. The only thing about that is nobody’s talked about closing all federal prisons within 10 years. And the federal prisons have very few rapist very few borders. Very few job less was because those are all state crimes. Nobody understands that. Nobody understands that though. All the people right out vote for him, because his opponent is going to close the federal prisons and release rapists and murderers, child molesters, which they’re very few in federal prison. Right?

Andy 47:00
God you’d have I bet you’d have to do like, I mean, just like, Nasser, I don’t even I don’t think he made it to federal.

Larry 47:09
He didn’t. He didn’t. He didn’t because he

Andy 47:12
hated Minnesota, Michigan, Michigan.

Larry 47:14
Yeah, he didn’t commit any federal crimes.

Andy 47:17
And Sandusky Also,

Larry 47:20
our Dennis Hastert are on it all

Andy 47:22
these these are people that have ridiculous numbers of victims that came forward and they end up at the state level. So I’m just supporting the comment you made about the argument that that particular politician made was being dishonest about supporting this act, this act of letting all these people out, try to waive a crime blah, blah, blah. But it’s at the state level that this would only impact people anyway. Alright, so over at courthouse news, Texas governor signs law banning reality TV crews from filming police, Larry, I gotta get my cops my daily cop drama show on bad boys, bad boys and all that. Why would we sign bills that stop this from happening? That doesn’t make sense. I want my entertainment.

Larry 48:03
I don’t know. I just thought it’d be funny to put it in here because I have the feeling that the police don’t like being watched.

Andy 48:11
I think the Pete the police like being watched when they get to go be a badass and and you know, they get there the 15 seconds of fame. I bet you they like it from that point of view.

Larry 48:21
So well, I don’t know the background of this are Texans can tell us what the backstory is. But, but I don’t know how you can actually stop them from filming, you may be able to stop them from distributing it. But in terms of filming, I think that you have the right to film the police. I think that’s been pretty well established.

Andy 48:41
And we know that the young lady that filmed the George Floyd event, just sat there on the sidelines and filmed away a picture you can film them and but Larry took them to account in my own argument. The police have come by and taken cameras from people I’ve heard reports of that where they say you can’t film us. And you can certainly like follow them around. You don’t have to get the you’d have to get releases. But so let me fill in another part of this. If you go back to a program on the media, from w NYC six ish, maybe six months ago, maybe 12 months ago, they did a program about this subject pretty in depth. It’s I think it’s like a 20 minute long segment. There’s a revenue split between the cop drama shows, and then with the local police department, which I got to think that so they’re driving on ratings. And if they get more exciting car chases or chasing people down dark alleys and whatnot, the more people will tune in, which would drive more revenue to the police department which like they would be incentivized to potentially escalate a situation. I, to me, that seems like a conflict of interest.

Larry 49:50
I don’t know enough about that to know about revenue splits and whatnot. But I do know that that police used to when cameras were much larger when you had your When you had your cam quarter, yeah, the police were much more likely because there were so few of them that were expensive. You really can’t do it as easily plus the body of case law has evolved to protect those who are videoing the police. But that was a routine thing. They would they would confiscate it and say, This is evidence that a criminal investigation we’re gonna have to, we’re gonna have to seize this camera that the video that you shot. While the truth of the matter is they didn’t want that video out there. That’s why they seized it.

Andy 50:30
Sure. Yeah, yeah, totally. I’m with you. Alright, well, then let’s move over to a Washington Post article says Louisiana lawmakers rejected non unanimous juries relief bill. So as I understand it, there was a week we covered it in the last couple of weeks something with the Supreme Court. And there were only two states I recalled Louisiana and Oregon were the last two states to hold out that you can be convicted of superduper like murder kinds of crimes in a non unanimous jury. So 11 of 12 jurors could convict you and that would send you to life in prison. And then as I read this, Louisiana lawmakers Thursday blocked an effort to offer a path to release for an estimated 1500 prisoners convicted of felonies by juries that were not unanimous. So the Supreme Court says, didn’t they say that you have to have a unanimous jury for those kinds of crimes?

Larry 51:24
They did, but it’s not retroactive.

Andy 51:28
Right. I’m with you, super than these people are asking to have some sort of relief applied based on that ruling. And they said no,

Larry 51:35
no, this was that is correct. This is a liberal democrat named Randall Gaines, who sponsored legislation to apply this and it could release I think if the article is accurate, 1500 prisoners that were convicted by non unanimous juries. Now this is the hypocrisy of the whole see the conservatives. They’re the they’re the stewards of fiscal responsibility, you see. And they don’t heard this. They don’t want government any bigger than it has to be. Yep. And there was a constitutional issue. I understand all these things that they tell. Well, so now, the Supreme Court has said, You can’t convict anybody prospectively with the non unanimous jury. What if you can’t do it prospectively, it stands to reason that you shouldn’t have been doing it in the past. The here’s a chance for you to demonstrate your true conservative values. You have a prison system in Louisiana, that’s overcrowded, underfunded. And you’ve got all the political coverage you possibly could need. You’ve got a Supreme Court, the United States saying that you shouldn’t do this shouldn’t have been doing this, although they didn’t make it retroactive. You can’t do it going forward. So you can clean up 1500 out of your presence. But rather than demonstrating your true conservative values, you blocked it, you blocked it. Why? Are you really about cutting government down to size? Or is that just political jargon?

Andy 53:15
Tell me what like, for real though. Do you have any insight? What is your opinion of the mindset of why they would block this? If not, if so, obviously, it’s not about money. Is it about just keeping the prison industrial complex, fully loaded?

Larry 53:30
Yes, it would have been the law enforcement industrial complex, like the days we talked about in a previous segment, they would be they would be against it. It would it would have, without being you would have to develop the public to understand it, it would require some leadership that people don’t want to provide when it comes to criminal justice. Someone would have to stick their head up out of the tall grass or politicians like to stay laying low. They would have to say, look, we were doing this wrong all these years. And I’m willing to take the political risk, we should let these people go. And even though Normally, you don’t get vilified, if you’re conservative, there is that risk that within your own party, you might get vilified, because as we’ve been noticing, in the not too distant past. Sometimes you’re not conservative enough. And you get you get pushed aside. And so therefore, they could be fearing a conservative backlash of if they take these types of risks that would be by guest not being in Louisiana, but the Louisianans who are so much more brilliant than the rest of the country. southerners take great pride of how much smarter they are than the rest of the country, and how brilliant they are when it comes to applying common sense. Hold your elected officials and the Louisiana House of Representatives accountable. Tell them this goes against your values. Have the constitution about guilty only guilty upon unanimous juries. And that it also goes against your values of spending money that shouldn’t be spent. These people shouldn’t be imprisoned because they should never have been convicted on a non unanimous jury. Tell them that, that helps give them political cover. Let them hear from you. Of course, I know. No one’s gonna call. But that’s what that’s what would give these people did send us would be if they would hear from the constituents. We’re not happy with you for killing this.

Andy 55:32
I gotcha. bizarre. All right. Moving on over to an Associated Press article, prosecutor Sue over California prison, good conduct rules. You put this in here for some crazy reason, I’m

Unknown Speaker 55:44
sure. The same reason we had the other article in there about about DEA is this is an example of the law enforcement industrial complex.

Larry 55:56
They they do not want the prison population to go down. This with this would put more people eligible for good time as I understood it, and we just can’t have that.

Andy 56:10
And so we were just bashing on Republicans. Isn’t California, mostly a blue legislative state?

Larry 56:20
That’s why we’re bashing on them as well, because this is not a partisan issue. I keep saying for some reason people don’t believe me. registry matters. And fyp is not partisan. We are about good public policy. It doesn’t matter whether the state is Republican or Democrat. If you’re doing something wrong. Now, apparently, the California legislature is trying to do the right thing. And they’re getting pushback from a district attorneys. Okay, that’s fine, then you need to be electing different district attorneys. But but we need to call it the way we see it. That’s why this is in here.

Andy 56:58
I’m just reading something here. And I think I’ve I’ve known some people that were firefighters in Georgia. But I recall, California being overrun with wildfires, at least if it was not last year was two years ago. And those individuals were there on the frontline getting paid pennies to fight these fires, and then they would be released from prison. And then they would not be eligible to work for the fire department to go fight wildfires, even though they were able to do it when they were effectively doing like slave labor, Larry. And, um, but I would think that we would want those kinds of people to receive exorbitant amounts of good time for putting their life on the line to actually save homes and people’s lives and property and all that stuff in the state. We would bestow all kinds of goodtime credits on that particular profession. But I think that we would also want them to have those kind of jobs on their way out the door. But here we go. Prosecutor Sue over California prison, good conduct rules.

Larry 57:53
Yeah. Love it. Well, the thing is, I don’t know, California politics well enough to be to be precise. But I can tell you this. If you’ve got 58 district attorneys, according to the article and 44 suing, I don’t believe that 44 of those would be from Republican districts. I think that is as blue as California is that that’s a lot of district attorneys from Blue districts. And therefore, they need to be called out. You’re not the progressive that you probably ran, claiming that you’re going to effectuate change. If every time you have the opportunity to do some change, you file lawsuits and you oppose it. So therefore, there should be no hate mail. We just called out the conservatives. Everybody just called out the liberals

Andy 58:45
will probably get it anyway. All right, well, let’s move over to reason Baton Rouge cops a strip searched a minor during a traffic stop and entered a family’s home without a warrant. The city just settled for 35,000 bucks. Larry, that does not sound like enough money. The case is an indictment on just how hard it is to get accountability when the government violates your rights. What is your point here?

Larry 59:10
I think I was smoking some Mikey weed. I think it’s just a police accountability. I was putting some filler in here. It is a low amount of money. The thing that struck my attention was the federal judge called him out for that this officer has had multiple times where it difficulty This wasn’t his first encounter. And all we want is police accountability. We know that no group of human beings is going to be perfect. And we know that we just need to hold them accountable. When you watch the video, I found it relatively disturbing.

Andy 59:49
Alright, so then we’ll move over to the final article before we close the show out and this is from a news dash journal. com never heard of this one but someone in chat posted this one on the discord server and said man charged 2018 murder in Longview gets 99 years for failure to register as a PFR. That is a lot of time for failure to register, Larry.

Larry 1:00:11
Well, I don’t know what you want me to do with that one. It’s

Andy 1:00:17
repeated around for a few minutes during pre show, what does it mean, potentially for him for to say? So it says this is the third time Kellogg, the person that got the sentence failed to register as a PFR. The assistant district attorney said Thursday during closing arguments of the sentencing phase of the trial, third time to failure to register. Didn’t you have some ambiguity there?

Larry 1:00:40
Well, what i what i said i’m not sure where this jurisdiction is, where as long as you Where’s where we’re talking about?

Andy 1:00:48
Where are we talking about, you keep talking for a minute now. And I’ll try and find where we’re talking about.

Larry 1:00:53
So what I was talking about in the pre show was that when you when you say failure to register, that usually is misleading. It’s often a technical violation, some issue of non compliance, where a person was registered, but they didn’t report something within the three days a job change a vehicle change, something of that nature. That’s not the same thing and should not be treated with the same severity. If someone just didn’t register at all, the news media doesn’t bother to find out and reports the public if the person had a technical violation, or if they just flat out were not registering, that would be very helpful news media, if you would tell us if the person failed to register at all, or if they fail to update some paperwork, that would change the level of severity. But by other point would be in terms of the crime. If you didn’t have these laws on your books, they would not be able to impose them. We do not have the potential for that to happen in my state. Since registration as a civil regulatory scheme. It’s not eligible for for the habitual offender act. Although our habitual offender Act has never had anyone successfully prosecuted under it. For the 45 years, it’s been all the books, no one has ever been sentenced to life, the prison in prison. But our civil regulatory scheme, it is a fourth degree felony carrying indict an 18 month maximum. If you have a previous conviction failed to comply, it elevates to third refolding. And it has a whopping three year maximum sentence. So that’s all he could get here. It’s not eligible for any type of enhancement beyond the internal enhancement. That means that you feel Texas By the way, you people in Texas, need to change your law, you need to exempt the civil regulatory scheme. This is the reason why you need to argue it’s a civil regulatory scheme, you need to exempt the civil regulatory scheme from your habitual fintrac. Because this is a civil regulatory scheme, it should be treated like a person who drives without a valid driver’s license, the punishment would get more severe, but they would never get 99 years. But also, you should put something in your statute that makes it clear that failure to register all together is is not the same as failing to comply with a particular nuance of registration.

Andy 1:03:15
And what you’re saying there is someone is still living at the same address, still driving the same car license hasn’t changed. And they forget to whatever, they don’t register, but they didn’t go move to a new address trying to like evade the system. They just like, oops, sorry, I forgot. But all the data is still the same.

Larry 1:03:33
I can make it more heinous than that. Say a person has a job. And they lose their job. And they’re all distraught about losing their job because they can’t support their family. And the law says that you shall shall report within 48 or 72 hours in a change in your employment status, where you’re too worried about trying to get a job. So you can keep food on the table, and you don’t get in within 72 hours. That’s a failure to comply. You could conceivably get the same penalty for failure to report that you’re no longer working there because that is a change in your job status. Right.

Andy 1:04:08
Yeah, totally.

Unknown Speaker 1:04:09
They prosecute people for that.

Andy 1:04:13
Okay, sure. And a person in chat says Indeed, I had a technical violation, I forgot to update my phone number forgot to even registered it caught it when I was signing the form. He said, We don’t play those gotcha games. So at least not everyone sucks. The key is if they were looking for something to pin on me. There you go if they don’t care currently, but if they do want to get get me for something, there it is.

Larry 1:04:34
So but but yeah, it’s really it’s really sad that that they put so much emphasis on this civil regulatory scheme to play the I gotcha. And they do play the I got you. You may have you may have some departments that don’t but too often, that’s what they do. They they place an extraordinary amount of resources in to tracking to see if they have an I gotcha moment, because the penalties are so extreme.

Andy 1:05:01
Gotcha letter that closes out the articles for the union. We are like right at an hour. Fantastic. Did we did we did a fair a fine job of moving these things along. Should I should I play the teaser that I released to the patrons? Should I do it? Or should I not do it,

Larry 1:05:17
I think you should play it because they’re going to see what a musician you are and what a treat they’re going to have when we reach 100.

Andy 1:05:26
It’s more like a musician that I was some time ago. Hopefully this will work, I will give it a shot. All right. The whole point of that was that so when we reach 100 patrons, then you have requested a song that I put out a questionnaire to people on Patreon to see which song that they would like me to play. I’m way at a practice as you may be able to tell from that. But that was a teaser that I have said I was a musician A long time ago, and I did not lie.

Larry 1:06:23
Well, I am sure that when we get ready for you to play on the stage with 1000s of people listening around the world, that you will have practiced and you will be playing at the highest level that could be imagined.

Andy 1:06:38
I will get there. So now that we are in striking distance, I will be practicing on a regular basis to get my chops back up so that I don’t embarrass fyp. And me especially and definitely not you, I don’t want to embarrass you either. And with that, Larry, as far as new patrons, we did have a pretty substantial increase from Chris, for sport. And people are renewing their membership and doing the annual thing, which I think is fantastic. They get a little bit of a perk of a discount by doing it that way. And I don’t know you didn’t tell me if anybody subscribed to the other method of doing it like by the mail. But

Larry 1:07:20
did anybody do that? We did that we we are receiving inquiries, people are taking advantage of the opportunity for a sample. And we’re gladly sending out the sample transcripts. And we know that the podcast is more expensive than than anything else you’re probably subscribing to Well, maybe not prison legal news. But yet again, I don’t even know what they charge anymore. But we realize that but it’s a weekly infusion into your to your life. It’s not like you have to wait a month or it’s not like you have to wait every two months or three months. It’s a regular weekly infusion into your life.

Andy 1:07:55
I like it. I think it’s fantastic. If you want to find any show notes or anything, you can find us over at registry matters.co. I would certainly encourage you to find a podcast app on your cell phone and find the podcast and that podcast app and subscribe to it that way when we release the show. It comes out at midnight on Tuesdays. That is like 11:59pm on Monday night is actually when I release it but you’ll have it for your if you’re driving to work. But for your working time on Tuesday, you’ll have the podcast available to you. And otherwise you can leave voicemail and you find all that stuff over at registry matters.co. And of course patreon.com slash registry matters. That is our favorite way for you to support the podcast. And Larry, I don’t think I have anything else that we need to cover tonight. And with that I will let you go and have a great weekend.

Larry 1:08:44
Thank you very much. Good night. Talk to you soon. Bye bye. You’ve been listening to F YP


Transcript of RM178: Full Court Review in 7th Circuit

Listen to RM178: Full Court Review in 7th Circuit
https://www.registrymatters.co/podcast/rm178-full-court-review-in-7th-circuit/

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts, fyp. Recording live from FYP Studios, east and west, transmitting across the internet. This is Episode 178 of Registry Matters. Happy Saturday, how are things over on the western side of the United States?

Larry 00:28
Fantastic. Glad to be with you tonight.

Andy 00:30
Wow, you sound excited. Are you feeling better finally? You got pot brownies, didn’t you?

Larry 00:35
Not yet.

Andy 00:38
Any movement? Have you gotten a prescription? Anything? Are you still on the fence?

Larry 00:43
I’m still working on it.

Andy 00:48
I have a pop question for you that I don’t even know if I can frame correctly. But it has to do with there’s a case that’s going to hit the Supreme Court and we can cut this if you don’t want to answer it but there’s a case that’s about to the Supreme Court. And it has to do with Roe v. Wade. And I’m one here’s my question for you is I’m hearing that the vast majority of the of the United States is very much opposed to just overturning Roe v. Wade. However, we have a very conservative court, probably six of the judges want to, they would probably be in favor of it. Do you think that the opinion of the population, the United States impacts what the judges would do? That’s really the question. So regardless of what the topic is, do you think that they take that into account?

Larry 01:31
Yes, marginally they do.

Andy 01:33
Okay, so you think if they feel that Roe v. Wade, is bogus, that they would then vote against it. And then and so and even though I forget what the number is, but it’s somewhere around two thirds or so of the country is in favor of some kind of right for a woman to choose. Secondly, to then tack on the back of that, that puts conservative legislatures in the crosshairs of being the ones that have taken that right away from women. I’m not trying to go down the politics side of that particular subject, but that puts them in the crosshairs and being very angry.

Larry 02:10
It does, but the people in those states are going to be very supportive of that. Those people who are in those states like Mississippi, where this case originates from, most of the women do not agree with that right.

Andy 02:24
Okay, I’m with you on that. Continue, please, please, please.

Larry 02:33
They do marginally take public opinion into consideration. Because when you talk about a precedent here, are you talking about a 15-year precedent. This was decided in 1973. Since 1973, we have had this ingrained that there is a right to choose, in particular during the first trimester. And there are going to be certainly aware of the disruption they’re going to have. And you’re going to have, like Chief Justice Roberts (Andy: John Roberts) reminding people about what they’re going to do. I’m not saying they’re not they’re not going to put tighter restrictions on abortion, Mississippi already has pretty strict abortion rules already. I think there’s one clinic operating in the entire state, which is in Jackson.

Andy 03:15
Yes. And they keep doing, again, I’m not trying to go down this route. So please don’t send me any hate mail over this particular subject. I’m interested in the concept of the justices taking public opinion as part of anything that they do, which I got to say that they should be more or less removed from it. So I kind of agree with your answer that they would, hey, look, it’s on the radar of something that they’re interested in. But they many of those states are putting in super tight controls over how far the place is from a hospital or whether the doctor has admitting privileges, how wide the hallways are, and so forth.

Larry 03:48
Well, I mean, it indirectly affects the decisions that they make related to our issue. It’s got to be very controversial for us to be talking about that issue. But it is important to understand to what extent that they’re going to look at public opinion. I think it marginally is considered, but they’re supposed to be removed from that they’re supposed to be looking at it… the question is, is there a constitutional right? And those on the conservative side would argue there clearly is not there is no nothing that you can argue to in the constitution that provides for that, right? Therefore, if you want that, right, you need to go through the process and put it in the constitution like we’ve done what 20s or so many times, the Constitution is amended. That’s what they would argue. And they would argue that that they are not supposed to be the ones who decide what the constitution should be. They’re the ones supposed to decide what it is be.

Andy 04:42
Yeah, I’m kind of in favor of that, I think I am. Anywho. All right. So since that’s the way What do we have going on tonight?

Larry 04:52
We have the most exciting episode ever. (Andy: Ever?) Ever.

Andy 04:59
How is it gonna be the most exciting episode ever Larry?

Larry 05:03
We’re going to be discussing how the AWA defines a tier three registrant, because we touched on it, but we really didn’t go all the way through it the last two episodes, so we’re going to go back to it. And I’m actually going to read from the Adam Walsh Act. And then we’re gonna come back to this case from the Seventh Circuit Court of Appeals from Indiana. And then I have a funny point to add about the case from Montana that we talked about last week that’s on appeal in the Ninth Circuit. There’s a guy on the NARSOL website that is going crazy, insisting that that had nothing to do with homosexuality. But yet, I quoted from the judge who made the decision, who said that it had everything to do with that. So I find it find it very strange that you can look at direct quotations, and say that it had nothing to do with homosexual sex. That is so bizarre. But anyway, we’re gonna have some questions, including one we carried over from last week, and so we’re going to be busy.

Andy 06:01
And then we have like some, like dozen articles that we’re never going to get to, but we’ll think about them.

Larry 06:06
So that question is, what will they do if I leave the United States while under supervision? That’s the essence of the question.

Andy 06:13
Okay. And I think where we will start then is about the tier three designations. And I would like to, like you said, oh crap, I forgot to cover this. So we covered another part of this person’s questions, but not how a person what I think this was the alternate ways that someone could become a tier three designation, I believe in Virginia.

Larry 06:34
Yeah, and I’m just gonna read it directly from the Adam Walsh Act, what a tier three offender is. This is, remember, we’ve talked about this two previous episodes, you can go beyond this. But to be deemed substantially compliant, you need to do at least this. And under the federal recommendations, a tier three offender means a sex offender, whose offenses is punishable by imprisonment of more than one year. So that’s generally going to eliminate all misdemeanors. A tier three misdemeanor would not have to be in tier three. I’m not saying that they’re not. But if a tier three only has to be crimes that care more than a year, we just dropped the whole misdemeanor universe from the tier three, right? (Andy: Yep.) Okay. Okay. So let’s continue: it’s comparable to or more severe than the following offenses or an attempt or conspiracy to commit such an offense. (1) aggravated sexual abuse, or sexual abuse as described in sections 2241 and 2242, of title 18 of the United States Code; or abuse of sexual context, as described in Section 2244, of title 18, United States Code against a minor who has not attained the age of 13. So that means if you’ve abused someone under 13, and that’s what I keep telling people, this universe is fairly narrow. It involves kidnapping a minor unless committed by a parent or guardian, or occurs after an offender becomes a tier two offender. That’s what they recommend. So misdemeanors don’t need to be in tier three. Now in Louisiana, if they even have any misdemeanor sexual offenses, since everything has to register for life in Louisiana. Clearly, that’s a tier three, even though I think Louisiana puts tiers levels on, you don’t get any benefit from that. You still have to register for life. But it’s a fairly narrow universe of of tier three, but the states have gone beyond that. So that’s really all I wanted to say was, I want to read this and we can make it available in the show notes.

Andy 08:54
Sure. Okay. And let’s see here, I think then are we can go over to the listener questions that were written in.

Larry 09:03
Sounds good.

Andy 09:05
Okay, great. So this one had some background information. But so this one continues. This one is from Sean says:

Listener Question
With that being said, I get released in about eight months, I just applied for my British United Kingdom passport, as I’m a dual citizen, as well as my brother. I plan on leaving from Wisconsin, direct flight to England on my British passport. As a British citizen. I know from Registry Matters 175 not to leave from any other state or to or to land in any other states otherwise, that would be interstate commerce, and a new fed case. I guess what I’m wanting to know is what all can I be charged with for leaving the United States to my other country of citizenship, just failure to register? Do they extradite PFRs for that? Couldn’t I seek asylum as a PFR due to the fact that Wisconsin PFRs could possibly be civilly committed, which most European countries don’t agree with. As sad as it sounds, I’m not worried about doing more time. In fact, knowing once my five years of extended supervision is over, I’m free to leave the country. I actually wrote to my sentencing judge and asked him if I could just sit the full 10 years off right away at once. So I could leave a little legally leave the country to be with my dad, brother and granny in England. The judge said he couldn’t answer my question and suggested I write to my probation officer. So I wrote my probation officer and asked her if she could pre revoke me, that’s a funny term, she could pre revoke me, so I can do all my time now. She said, I need to contact my sentencing judge, as she legally couldn’t let me revoke myself from prison. I just want to be with my family in England, I don’t know how many years left my granny overseas has and how much longer my dad will be around as he’s had heart attack and stints already put in. All I know is I no longer have family in the US, and that I’ve been in and out of jail since I was 19, now 29, and I’ve never even made one year of probation. So it’s not realistic to expect I make five years of extended supervision, especially with no family support this time. So let me have it. Larry, what are your thoughts? What do you think will happen? Will England extradite me for being to being a British citizen? Will the US come for me over a failure to register? Thank you very much for your time, Sean, and I plan to renounce my citizenship once in the UK.

So let us have it, Larry, what’s the what’s the skinny gonna be?

Larry 11:27
Well, we’re not going to touch the renunciation of citizenship, because I do not advise that anyone ever give up the United States passport, ever.

Andy 11:34
We talked about that kinda like, what five weeks ago? And that was your same position, then.

Larry 11:39
Yeah. And I can’t recommend that. I would find that appalling. But he’s got actually two different angles within this question. If he were to have totally be completed with all his supervision requirements in Wisconsin, that’s one scenario. The other scenario would be if he hopped the flight, and left the United States, while still owing Wisconsin that five years, that’s another scenario. So if he were to leave, with Wisconsin still being owed supervision, I will absolutely guarantee you this: Wisconsin will put out warrant for you. They will put out a warrant for you, and they will seek your return to the state of Wisconsin, and I don’t care where you are, they will want you back because you’re a sexual offender. I don’t agree with that. But that is what they will do. And a person might go to a country that would refuse to extradite them. England will not be one of those. If he were to go to England, and Wisconsin wanted him back, I would just about bet you that the United Kingdom would honor that extradition request. So that’s what I would say on the first scenario. The other scenario would be that he extinguishes that five years of supervision, and he only is obligated to register. Well, what we’ve learned from that, is you have an obligation under federal law to notify in advance of international travel, and I think United Kingdom would be considered international travel. Would you agree?

Andy 13:12
last time I checked, oh, yeah, they are definitely not part of the umbrella of the United States of America. They’re not a territory.

Larry 13:18
Therefore, he would be obligated to notify the US authorities that he’s going to travel internationally. Being that he holds a passport, I would just about bet they would admit him. If he has that passport at the time he seeks admission, they will admit him. If he’s done that notification, and he’s complied with US law. And they’ve notified British authorities who choose to admit him. I think he’s home free. But if he doesn’t notify them, US authorities will seek his extradition. I think we’ve learned that back in the Philippines, many, many years, three or four years ago, however many years that case was where the person went to the Philippines and they didn’t tell US authorities that they were departing and they were seeking his extradition from the Philippines.

Andy 14:02
I think he was from Kansas. The person left Kansas. And one of the Supreme Court justices said, so the person left, and we went and got them back? And this is a person that we don’t really want here. Why would we do that? But that’s what they did.

Larry 14:17
And that’s what they would do.

Andy 14:19
Yes. Especially with a nation that is that much friendlier. I mean, you could call us like bosom buddies with the UK I would think.

Larry 14:26
yes, I’ve had that discussion with law enforcement about a person our state was extraditing from South Dakota, I believe it was, and I said, Well, why would you want to bring a person back from South Dakota. If they’re offending, wouldn’t we be better off if they’re offending there?

Andy 14:44
They’re not going to show up on your statistics on some kind of blotter if they offend in South Dakota.

Larry 14:49
That’s right. But see, that wasn’t that way. They looked at it. They looked at it was a caller for them, meaning a catch. They looked at and we’re gonna go to bring a person back. They’re gonna get some jail time because they didn’t come comply with the requirements that notifies that they were leaving the state. Therefore, we’re going to have a felony conviction. And it boosted statistics for our unit that we’ve apprehended a dangerous person. That’s what they would hang their hat on. They wouldn’t care about the greater good of the community, the greater good of the community. If the person is as dangerous, as we say PFRs are, then we would want them to be offending in South Dakota, I would think, wouldn’t you?

Andy 15:26
I, that sounds reasonable.

Larry 15:28
I wouldn’t want them to be offending at all. But if you are offending, I would prefer you offend in another state.

Andy 15:36
That sounds legit to me. But again, that’s not what we do here. Okay, so let me let me throw this out there. And I realize the UK is not Germany, but there’s that guy out there. And he has a YouTube channel, the name of it is escaping me, but the person’s name is River. And he, as I understand it, he like, got himself out of the US and got himself to like one of the neutral countries like a Switzerland kind of place. And then he got himself to Germany. He’s claimed political asylum there because of civil commitment stuff in Florida, as I understand that could have some of the details wrong around the edges. And he is safe in Germany at the moment and is seeking political asylum for these human rights violations for the way the civil commitment stuff is. Kind of what Sean here was saying, instead saying about that they disagree with the registry stuff in the United States.

Larry 16:32
Well, that’s a difference of whether the United States will seek their extradition or whether the United States will succeed. I mean, we’ve had Snowden, for how long? (Andy: Oh my god, like 12, 10?) But that guy he’s asking, will they seek his return? Absolutely, they will seek your return. If you leave Wisconsin, they will put up a warrant in the NCIC. It will be, they do that in in layers like statewide regionwide, national or international, they will put out a warrant that says anywhere to bring you back. Now, when actually you’re found in another jurisdiction. They do look at cost. They look at those factors, and they may decide to forego extradition and hope you get a little bit closer to the to the destination state. If I’m if I’m making an allocation of extradition resources, which somebody in a DAs office, in a prosecution office is charged with that task, if I’m making that decision, and someone is in New Hampshire, and I think they’ve got ties in Texas. I just might forego extradition when they get picked up in New Hampshire and say no, we’ll pass this time. And hope they get picked up some somewhere closer. Because you don’t take advantage of extradition, that doesn’t nullify the warrant.

Andy 17:52
Okay, so so they could you’re, you’re saying they will, they will literally put out the extradition. But then when they say hey, we found this person in the United Kingdom, that’s got to be a $2,500 deal to get a marshal on a plane to escort you back. And all that funds to buy the commercial plane ticket, all this stuff, it’s got to be some number of dollars. It’s not like you just go send a trooper over there, pick them up in the car and drive them back, there’s going to be a hefty expense in doing it and they might go, maybe not this time.

Larry 18:22
That is exactly what they might do. But there will be that warrant out there. And he might decide to come back here, people die in the United States, people, people re enter the United States that think that they never will. And there’s a welcoming committee waiting for you when you do that.

Andy 18:37
So the next part of that is not that you’re giving any advice, but don’t ever come back if you do get out.

Larry 18:43
I would tell people that if you’re if you’re going to flee the United States, you need to stay gone. But again, I don’t encourage anybody to flee the United States. For all of our problems, this is a country that many envy and try to enter, we need to always consider that we have the opportunity within our system of government to change the things in the United States that need to be improved. So rather than throwing our hands up and leaving, I choose to work for change. And I choose to vote for people who campaign on platforms of change. A lot of our people actually vote for the people who campaign against the change that they say that they’re for. But that’s a topic for another podcast.

Andy 19:23
Maybe some Patreon extra somewhere along the way. (Larry: Sure.) All right. I think I think we’re done there. Anything else? You’re

Larry 19:30
Sure, sure. We’re done.

Andy 19:33
Cool. All right. So this one carried over I think, so this letter came in somewhere in the early of May and it’s from Charles, it says:

Listener Question
To whom it may concern, and this is not our Charles, our regular listener. This is a different Charles. I understand that you are by no means a lawyer or can help me with law or help with my case. I just wanted to give you a little about my case and how it is so hard to get any help from anyone when you have these kinds of charges. My question is, how is it that a woman or child can say you abused them or raped them with no DNA, no times, no places, that they can tell you where they are located, all hearsay and be convicted? The only charges you can be convicted on hearsay. I really enjoyed reading the papers and really hope that something can change. Thank you and I hope change can come soon. And that is from Charles and boy do I agree with his sentiment there.

Larry 20:26
I put that in there because I wanted to talk about hearsay. What he described as hearsay is not hearsay. When a witness testifies against you, that is not hearsay. (Andy: Sure.) And hearsay is when someone says, I heard from another individual. It’s not first-hand testimony. But when someone says he did that to me, she did that, to me, that is not hearsay. That’s direct testimony, direct witness testimony. Now, the hearsay rule is not absolute. There are exceptions to hearsay, and I can’t begin to go into all of them because I’m not an attorney and I don’t know them all. But a dying person can make a declaration that would be an exception to hearsay, because they’re on their deathbed. And therefore, they won’t be here. So there’s no absolute prohibition against all hearsay, but what he described is not hearsay. The woman or the child, they witnessed that. And what about DNA? What about for the first 200 years of our existence? We didn’t have DNA. Under that theory, nobody would have ever gotten convicted of anything. Where’s it written anywhere that DNA is required?

Andy 21:37
You don’t have a constitutional right to DNA evidence?

Larry 21:40
Absolutely not. Yeah, if you want that to be a constitutional requirement, then you need to work on changing the Constitution. But right now, witness testimony is sufficient. Now, I agree with him about the no times, no places, and they can’t tell you where the offense occurred at with some particulars. That is a real problem. You can thank the victim’s advocacy apparatus for that, and the law enforcement apparatus for that. They have worked diligently for many years, to make sure that we actually can’t put an accuser on the spot and ask them particulars. We’ve never been able to badger a child. And the older the child is, the more leeway you get. But when you have an 11-year-old, no court, in my lifetime has allowed you to aggressively attack an 11-year-old witness. First of all, they’re not going to have the ability to relate to dates and times and places the way an adult should have. But you have the witness testimony. And if the jury or the judge, in the case of a trial to the court without a jury, if they choose to deem that witness credible, that is all the evidence you need to convict a person.

Andy 23:03
Let me provide a couple of little points. Hopefully I can remember the second one. The first one is, and I’m pretty sure I’ve shared this before is I sat on a jury trial for something along those lines where a DEA person had taken some pictures of a witness and the witness then was calling a civil suit. And I know that the standard of evidence is different at that point. But we acquitted because we didn’t have the photos. So it was her word against his word. And so to what he’s saying, he’s saying he was convicted, just based on testimony evidence, testimonial evidence. And that’s all this was, was testimonial evidence. And because we didn’t have pictures, we didn’t convict the person, even though we believed that he probably did it. We didn’t have any evidence to go on. And I’m with the writer. The questioner about that, in this regard, that without any, any sort of physical corroborating evidence to support the claim? It’s hard to, it’s hard for me to fathom that you would convict somebody of just someone saying that he made me feel Oogie or touched me without anything that is something more tangible as evidence.

Larry 24:09
Well without the particulars of that case, I don’t know what to say. But you can deem a jury, can deem no witness credible, in which case they should return a not guilty verdict. If the person… remember the accuser has the burden. The victims forget this. You’re trying to put a person in a cage, usually for a long period of time. And in order for us to be willing to put a person in a cage, you have to carry the burden of showing that their behavior was unlawful. And if you can’t carry that burden, they don’t get to go into that cage. But if the jury chooses to give you that benefit of believing you, that’s all that’s required. Your jury that you sat on, chose not to believe the person without any corroboration, but that was your prerogative. You could have chosen to believe them. The judge when they give you the instructions, say that as I instruct you, being that we don’t have any, any corroborating evidence, you should find this person not guilty. Of course, the judge didn’t say that.

Andy 25:13
Right. Right. All right. Larry, I think based on the amount of questions that we have to go over on this little shindig that we have going on that we will move over to the Seventh Circuit thing that we have covered already that we need to go back to.

Larry 25:32
the Seventh Circuit thingy. Tell me about that.

Andy 25:35
Well, I’m wondering why you want us to spend more of our absolutely overly expensive airtime on this matter. We talked about it. I think I brought up that Fred had asked a question about it. And then so now we’re gonna go back to it again, and we talked about it several months ago again. But here we are doing it, again.

Larry 25:57
We’re doing it again because even though we indeed have talked about it, the PFRs won this case in the Seventh Circuit. And we talked about I think in early February, but the decision came out in January. Unfortunately, the state of Indiana was not elated with that outcome. So they appealed. And they requested en banc review. In rare circumstances, courts grant en banc review. And they did in this case.

Andy 26:23
I need to know what en banc and can please please please please spell it because like en banc like there’s actually there’s like a martial arts movie called on bonk. And I don’t think it’s that?

Larry 26:36
Well, it means that the full court, when these cases go up on appeal, most appellate courts operate, as far as I know, practically all operate on three-judge panels. And with three-judge panels, you seldom get a tie. And so a three-judge panel decided this case back in January. But that doesn’t mean that that’s the end. That’s referred to as a panel decision. And the panel decided to two one with one dissent, that that the PFR case was decided correctly, and they affirmed the trial judge, but the state of Indiana asked for a full court review. That’s what the that’s what the en banc is. So all the judges sitting on the full court will make the decision. Now this is not unprecedented, but it’s rare. If you remember the case of Michael Flynn, do you remember? I think he was the National Security Advisor, I think for Trump.

Andy 27:38
Yeah for like, for like a month or a couple weeks.

Larry 27:41
He was granted… The US AG was trying to dismiss the case against him. And, and judge Sullivan I believe was his name, did not want the case dismissed because he’d already entered a guilty plea. And my position is, as I believe that the government and the prosecution can always dismiss a case. And the panel agreed with me and I was pontificating about see, I told you so. But then the government appealed. Judge Sullivan asked for en banc review, which was granted, and they reversed the panel. So reversals do happen. This type of review is granted sparingly, but it does happen. So that’s what happened in this case, we have a full court review underway right now.

Andy 28:28
Um, so how many judges you were just talking about the number of judges on the initial panel, there were three judges and now they’ve done en banc, how many judges are on the hunt now?

Larry 28:40
Now as best I can count, there would be 10 judges, the 10 would include the three that were on the panel. We can we can assume that the panel is gonna think the ones who voted in the two that they got it right. So we can figure that to two of the judges are going to be voting the way they previously did. And we can assume that the judge who dissented is going to think they got it wrong. So we start out with seven undecided judges. And from seven, you’re trying to reach a total of six. So it’s a lot easier to get to six when you’ve got two to start with than it is when you’ve got one to start with, but anything can happen.

Andy 29:20
And to clarify, so that I understand cause I’m the the dumb one. The decision was in our favor. So we have two in our favor, and there was one that was not in our favor. So we already have two that would then in en banc, we’re looking for the full court to then affirm or what’s the word for is that dissent? Is that the right term?

Larry 29:40
They’ll affirm or they will reverse.

Andy 29:43
Okay, good. So we already have two in our camp and there’s one not in our camp? Is that right?

Larry 29:47
That’s correct. That’s correct. That’s correct. We got two in our camp right now.

Andy 29:52
So if that ratio holds, we’ll end up with something of six or whatever and everything would go great. And this has to be a simple majority since there’s only 10, as soon as you get to the sixth person is over. This isn’t like Senate rules where it has to be 60% or anything like that.

Larry 30:05
You could conceivably have 6-4. Or you can have a tie or you can have nine to one. Who knows, but in order for the decision of the panel to be changed, you’re going to need a majority to reverse the panel. So if there are in fact five sitting judges, and they were to tie that would affirm the panel decision.

Andy 30:26
Okay. all right. Let’s see here. And what is India, not India, Indiana arguing here? What are they what is their issue?

Larry 30:35
Well, I’m just going to quote from their petition for review. They say quote, rehearing en banc is warranted because the question raised by the majority’s decision is whether the privilege or immunities clause prohibits all state laws that have a disparate impact on newer residents is a question of exceptional importance. And that they say, the decision conflicts with precedents of the Supreme Court, this court and at least one other circuit, and threatens to invalidate scores of long standing state laws, and that’s on their petition, at page one.

Andy 31:14
Is this at all similar to what we talked about last week in Montana?

Larry 31:18
It absolutely is similar. The Indiana law requires an offender to register, and they use “He’s”, if he committed in Indiana a registerable offense that gets you on the list, obviously, or committed a substantially similar offense elsewhere, or is required to register any other jurisdiction, which is a catch all clause we have discussed. So that’s absolutely what happened with the person from Idaho who went into Montana. Same thing. Now the issues were different there in terms of the particulars we talked about, we don’t need to dredge it go through again. But the underlying issue is the same. Can you have these catch all clauses, that the states are fond of having?

Andy 32:06
Now, I know that it’ll be hard for you to believe this, but I read the state’s petition for hearing and they say that if you have to register anywhere, you should have to register in Indiana. What is wrong with that logic?

Larry 32:19
Well, according to the panel opinion, and to the district judge, District Judge opinion, it’s the equal protection clause, that’s what’s the matter with it. And a state with a more expansive registry, having that law would place you on another state’s registry for conduct that would not be registerable in the new state. So that’s what’s wrong with it. Our country operates under the premise that when you move to a state, you have the protection of that state’s law. And that’s what’s wrong with it.

Andy 32:52
But if you move to a state, and your car is smoky, and smelly, and they have emissions controls, then you would have to follow your new state… If you move to California, which is gonna have the most restrictive emission laws, and your car is belching out stuff, and you came from a state that didn’t care. California’s gonna say, fix your shit.

Larry 33:13
That’s exactly what, but that’s the reverse of what we’re talking about. If you reverse that, and you move from a state, where you’re where you are required to register your vehicle, and inspect it for emissions, and you go to a state where they don’t care about emissions, they wouldn’t say, well, gee, you had to register it back in that state. So you have to you have to emissions andsmog inspect you here, they wouldn’t do that. It doesn’t carry over with you.

Andy 33:40
Okay, all right. Um, when wouldn’t people move from one state to another to seek a safe haven? Now we talked about that on the regular Larry?

Larry 33:47
Well, of course, they would, some would. But how is that different, people move from state from one state to another for a plethora of reasons. One would be avoiding paying income taxes. Another would be no tax on Social Security. Why don’t we impose the same obligations as for all new arrivals for the taxes they had in the previous state? Why don’t we do that?

Andy 34:07
And would we call taxes a civil regulatory scheme?

Larry 34:11
Yes.

Andy 34:13
okay. So then since this is a civil regulatory scheme, then when they have the same sort of logic applied to them?

Larry 34:19
Well, you get the benefit of the tax structure of the state that you move to. If you move from a state that they’ll or you go to a state that doesn’t have an income tax? They don’t say, Well, you know, we normally wouldn’t have an income tax here, but you moved from New Jersey, and they have an income tax. So we’re gonna levy one here.

Andy 34:35
Right, right, right. I’m with you. I’m trying to figure out how they would then apply that logic to a PFR moving to their state and saying, Oh, well, you were registered over there. So now you’re going to register here. That seems inverse of what we’re saying about something like taxes.

Larry 34:50
Well, that’s what I’m saying. That’s the idiocy of the whole thing. Of course, people would move from one state to another if they could to avoid registration. You would be crazy not to.

Andy 35:02
But people move different counties for property tax reasons. I mean, just inside your own state.

Larry 35:08
People move from one state to another for a whole variety of reasons. And we don’t impose the previous state’s requirements upon them. We just don’t do that because it would violate the equal protection clause.

Andy 35:21
Interesting. So how does this relate to the Wallace case from Indiana Supreme Court? And this was one of the first victories. Tell us about Wallace and how it’s relevant in this dispute.

Larry 35:33
Sure, you’ve heard me talk about Wallace, I think I talked about on last episode or before that the end, and the Supreme Court decided that the Indiana constitutions Ex Post Facto Clause limits retroactive application of registration. And the court held that that SORA, as they called it could not be applied retroactively to someone who had been charged with, convicted, and served the sentence for his crime before SORA was enacted. Because as to such a person, SORA would impose bars that had the effect of adding punishment beyond what would have been imposed when the crime was committed. That’s Wallace v. State. And for those legal beagles, that’s 905, North East second, at page 371. That case is 12 years old now.

Andy 36:30
And I realize that it’s not really that simple to make comparisons. But didn’t the Indiana Supreme Court permit some level of retroactive application on registration?

Larry 36:41
Actually, they didn’t. On the same day that they decided Wallace, the same court held that Indiana’s Ex Post Facto Clause does permit applying for or retro actively to an offender for whom the marginal effects of the Act are merely to increase the length of an existing registration obligation. And that was in Jensen v. State. And that’s 905 NE second at 384. Same thing 2009. So they did say if you already had a registration obligation, that they could increase that registration obligation. And that’s where it…

Andy 37:17
Because it’s a civil regulatory scheme.

Larry 37:19
And that’s what the state is arguing in this case.

Andy 37:24
Um, All right, let me try and put this into my own words, the state is arguing that the federal court is bound by existing Indiana Supreme Court decisions, right?

Larry 37:34
That is correct. They say, the state of Indiana, they say that based on existing case law that has that has established a straightforward rule. They say that that straightforward rule is if an offender is already required to register by Indiana or any other state, the Indiana constitution prevents applying SORA retroactively to him so long as the marginal effect of doing so it’s not to increase his obligations dramatically, and thereby impose punishment. And that’s what they argued in their petition on page four.

Andy 38:08
What does that mean not to increase his obligations dramatically? So if they go up by one year, that’s not dramatically, but if they go up by 50? That’s dramatic. Like, isn’t that a subjective term?

Larry 38:18
I don’t know. I don’t think I think that’s one of those things that’s a little unclear what they mean by that. Clearly they’re saying that if you had a registration obligation, that you that you’re not protected by the Wallace decision, because they on the same day, they decided that there could be a retroactive imposition of registration. But in my skim read of the of the Jensen decision, it’s not clear to me what the marginal effect is. So I guess that’s what is going to become a contentious dispute of this in this case now, because what is marginal? If you have to register, and you merely have to mail in a form, which I don’t think Indiana has ever been that way. But if that’s all you had to do is mail in a form, whether you had to mail in 20 of them, or 10 of them once a year. That’s not a huge change. But if you have to go see the sheriff, or law enforcement and have fingerprints taken, and you have to be constantly visiting them and have and receiving home visits, and you have to go from 10 to 20 years, or from 10 to lifetime, that would seem like that’s more than marginal. So I’m not sure what that means

Andy 39:28
We could extend out your your prison riot thing from New Mexico of that one day mattering. Where if your name is on that list for one more day, you could end up under the scrutiny of some sort of vigilante that one day could matter of your life. Don’t you think?

Larry 39:45
it absolutely could matter. One day could make all the difference. But there’s another option that the court the Seventh Circuit could if they’re not clear, and they may be a lot clearer than I am because they have law courts. So they’ve there’s 10 of those judges. And they may have figured out what the marginal effects are. But they could ask for clarification, they could certify a question back to the Indiana supreme court and say, What? What do you mean by marginal effects and see if the Indiana Supreme Court will tell them.

Andy 40:15
Wouldn’t they then kick the ball back down to the legislature? Isn’t that where that would go that they left that to be something vague?

Larry 40:25
Well, I don’t know that they intended it to be that way. That’s what the what the law enforcement apparatus presented to them as being the language that they preferred. And all these things are the law enforcement’s creation. And since the PFRs are never represented or are seldom represented, there was nobody there to argue that that was vague. But this case could go on for some time. If the Seventh Circuit decides that they want to certify the question. Now remember we talked about that in the Michigan case about whether they the certified question and I’ve learned to quit predicting that they will certify questions, because I would have certified that question that they didn’t certify out of the Sixth Circuit. And I think if if I were this position, I would seek some more clarity from the Indiana Supreme Court. Because ultimately, the Indiana constitution if it provides greater protections than the US Constitution, only Indiana gets to, the Indiana courts get to interpret their constitution.

Andy 41:19
Okay, we’re gonna have to dig into that one at some point. I think there might be stuff that might be interesting to noodle around with, because we talked about Maryland having more protections. So I don’t know where those boundaries are. And maybe we could get into that at some point. Have you talked to any of the attorneys that were dealing with this case?

Larry 41:39
I haven’t actually had a verbal conversation. I did reach out after a listener or someone alerted us to the fact that they had granted full court review. I reached out t to one of the attorneys, and I received an email back saying he said at this point, and this was after oral argument was held on Thursday. At this point, there was not much to do other than wait for the en banc court to weigh in. I do not have a good sense from their argument, what they are thinking, but I’m more than happy to let you know when it happens. So they they’re not going to try to read the tea leaves. I’m not going to try to read the tea leaves. I’m very disappointed that the panel decision is in jeopardy. I can say this, though. Now that we do know about it, it won’t fall through the cracks again. And we will be looking and that would be the National Association for Rational Sexual Offense Laws (NARSOL). We’ll be looking for an opportunity to weigh in on this with an amicus brief. And every Attorney General in the United States practically had briefs in this case. But on our side, there were no amicus briefs, but all the AGs from all over the country, they weighed in.

Andy 42:54
Let me ask two questions. Let me ask this one first. Is it just that the losing team asked for they appealed it, that’s why there’s en banc?

Larry 43:05
That’s correct. They had the option, they could have they could have filed a cert petition with United States Supreme Court, or they could ask for a full court review. Full court review is seldom granted. But in this case, it was but even if the full court review had been denied, they could have sought a cert petition. And they probably would have.

Andy 43:24
and why would they pick for the full court panel versus cert and vice versa?

Larry 43:31
Well, I think that since only about 1% of the cert petitions are granted, that they would view that as even lesser odds than full court review. So, I think that if it were me, I would go for the full court review before filing a cert petition. Because if you, it gives you another bite at the apple. If you lose with the full court, you can still do the cert petition.

Andy 43:54
Oh, I see. But I mean, couldn’t the Supreme Court just refuse… wait, so they refuse cert than the en banc wouldn’t be an option?

Larry 44:00
That would not be an option. If you’ve not filed for en banc review and you go to the Supreme Court, and Ithey deny cert, you can’t come back and ask for en banc review, that’s the step before you go to Supreme Court.

Andy 44:16
And so then my final question is, I think you’ve said that there’s not really much of an advocacy group in Indiana, I think you’ve said that.

Larry 44:25
That’s my understanding, that there’s not

Andy 44:27
So what other groups would have been in a position to write some sort of amicus brief and why didn’t NARSOL?

Larry 44:37
Well, honestly, we didn’t because it was not on our radar. The other groups would be like the National Association of Criminal Defense Lawyers (NACDL), that would be one possibility. Okay. That would be one possibility. The the state of Indiana has some kind of lawyer association that deals with criminal offense, that would be another. Like in in New Mexico our criminal defense lawyers, we actually have a lobbyist that’s in the Capitol when the legislature is in session. This would be something for a state criminal defense or a national Criminal Defense Lawyers Association to weigh in on being that every Attorney General in the United States weighed in on it, it would have been great if NACDL had weighed in. That’d be a really great question to ask them. Why didn’t they weigh in? Because their resources are far greater than what ours are.

Andy 45:26
Yeah, sure. Larry, I got nothing else on this one. Are we being clear of this discussion about this Indiana case?

Larry 45:32
We are indeed unless you can think of something else.

Andy 45:36
I got nothing. And I’ve asked the 75 people that are with us in chat, and they have had nothing to share. There may be some slight exaggeration on the 75 people in chat part too.

Larry 45:45
I only see 71 people in chat.

Andy 45:49
See, I told you I was exaggerating. Do you want to we have about 15 ish minutes to hit some dozen articles. Do you want to want to move over there for a few? Or is there something else that I missed before we get there?

Larry 46:02
Oh, let’s do some of these articles. We don’t do articles anymore.

Andy 46:06
We do do them just not like was quite so many.

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Alright, this first one’s come coming from the ABA journal. I don’t know what ABA journal is, what is ABA journal?

Larry 47:06
American Bar Association.

Andy 47:08
not the American Broadcast Association. Alright, so the American Bar Association. Momentum builds for second look legislation that allows inmates to get their sentences cut. Why did you put this in here?

Larry 47:21
Because we’re always accused of not having enough good news. So we have, we have some good news that momentum is building which means public support is building. And therefore, it could be that people who are not eligible to have their sentences reduced, will find themselves eligible. And I don’t have enough from this article to really tell you anything other than Washington DC approved referendum measure in December 2020 allows people who committed crimes younger than age 25, to petition the courts for re sentencing after 15 years of imprisonment. So that would be a good thing. Elected prosecutors across California using a 2018 law allows they can seek resentencing. So there’s several states mentioned in the article. And momentum public support is building for beginning to chip away at the prison industrial complex. Cf course, PFRs are always excluded.

Andy 48:20
We are always excluded and and just for clarity, where we you were covering things from specific states that the Federal stuff is its own, we’ll call that its own state just for this context that they are their own state. They have what 200 or 200,000 or so people locked up under federal stuff. And then you have the 57 states, how many states are there Larry?

Larry 48:41
I’m not even sure somewhere in the 57 to 63 range.

Andy 48:46
It’s 50. Don’t, don’t confuse people. It’s 50 states. So I just wanted to point out that those two things, so the federal laws would be different than Maryland and Virginia and Wisconsin and California, like all the other states would have their own laws on how many people are locked up. And this is pointing to something that there is momentum for changing sentencing laws across the country, including federal too. That sounds amazing. We spend so much money on prisons. It’s ridiculous to me how much we spend on keeping people in cages. It’s just really unfair. It seems inhumane to me.

Larry 49:19
Well, I just had a conversation with a board member who will remain nameless at the moment, but I can give you the state, West Virginia. And he was talking about how the legislature just extinguished good time for people, for a certain group of people that they have to serve their entire sentence if they have violated any of their extended supervision. That they don’t receive good time. And I told him, I said, Well, now let me just make sure I’ve got this straight. Now West Virginia, we would agree is fairly conservative, right? He said yes. I said you’re conservative, right? He said yes. I said well, the way I understand it, conservatives are totally brilliant when it comes to being frugal financially. So how is it that you were not able to argue to those lawmakers that if they’re going to hold those conservative values that they espouse publicly? How is it that you could not convince them that not allowing good time, which was a subject somebody people to basically life in prison, how would you not able to make that case and have it connect with them? Of course, the answer is hypocrisy. But he says, Well, I guess that’s a good point. And I said, Well, that is an excellent point. You need to call these people out who claim that their fiscally responsible conservatives and ask them when they just dramatically increased the length of people be imprisoned? You should ask them how do you feel about being running a geriatric prison? How do you feel about the health care costs that we’re gonna have to have to absorb because of the decision you’re making right now? You call yourself a conservative right? I said these are legitimate questions, ask those questions. And he said he was gonna give that some thought.

Andy 51:00
All right. Let’s move over to SCOTUS blog. I hear this one referenced on some different podcasts that I listen to. Says justices divided on retroactive application of jury unanimity ruling. That’s a really weird word to say. And you’re gonna give me the skinny on what this is about?

Larry 51:23
Well, in 2020 or 19, somewhere recently they decided the Supreme Court decided that that non unanimous jury verdicts violate the constitution. But then that raises the inevitable question, what about people that were convicted as a result of not unanimous jury verdicts. So this decides that issue. So the Supreme Court on Monday in a 6-3 vote that inmates whose convictions became final before last year’s Ramos v. Louisiana decision, they have no recourse. Because they’ve already, their decisions were already decided before this new decision. So basically, it broke along conservative versus liberal. The six conservatives said, you don’t get your day in court. It’s over. It’s old news. Serve your time. Forget it, get over it. And the liberal pointy heads said, of course, we should go back and look at those nonunanimous convictions. But since six said no. And three said yes. Guess who wins?

Andy 52:31
I think the six overrules the three.

Larry 52:34
So but yeah, I just wanted to put that in here cuz our listeners are just so convinced the conservatives are going to save us and every chance I get to show what happens when you have the conservative ruling. This is an example of those people should be given. If a nonunanimous jury verdict is unconstitutional now, doesn’t that call into question every verdict that was achieved by nonunanimous jury?

Andy 53:07
Let me flesh this out a little bit. So there’s a, I was going to ask this question, but it’s right here in front of me says the geographical impact of Monday’s decision is limited to Louisiana, Oregon. The question I was going to ask you is weren’t there two states that were still allowing non unanimous convictions, and I wasn’t sure which ones. (Larry: Those are the two states.) So you do like the most heinous crime and those two states would allow like an 11 to one jury decision that would convict you. Not being a unanimous jury, and now you get some life in prison sentence. And this ruling said that you need from this day forward to have a unanimous jury to have a lifetime conviction. But this is not a retroactive thing. The opposite of the registry. (Larry: That’s correct.) The registry goes and sucks and everybody from 50 and 100 years ago, were this you have a lifetime sentence and on this day forward, no one’s going to have a… it is unconstitutional to have non unanimous jury, but it’s not going to retroactively apply and let someone out.

Larry 54:09
That is correct.

Andy 54:13
That’s sad. All right. And I guess then we will move over to The Advocate. House committee rejects Louisiana PFR offender ID bill due to legal concerns. House committee rejects. This sounds like good news. Hey, we got two good news things, Larry.

Larry 54:31
This is absolutely good news. And I’m bringing this up simply because I didn’t expect it. The conservatives control Louisiana and the measure failed in committee. It didn’t get a due pass recommendation. And in most instances that will derail the legislation. It’s not a complete guarantee. But the measure failed on a six to seven. Meaning there was only six to pass and seven against passing after lengthy discussion. There was concerns about the constitutionality. And this is just fantastic news. Now I tell people just because it didn’t get out of committee favorably. There are parliamentary procedures to move something out of a committee without a due pass. They’re rare like that previous episode segment we talked about, you can actually by a majority vote of the chamber. You can remove something from a committee that’s, that’s assigned to you. So I’m not tracking Louisiana day to day. I don’t know if that’s been attempted. But that is a process. So don’t consider it over until the gavel goes down on this session. And then certainly, this will be brought back in all likelihood in a future session. Just because something doesn’t pass one year, doesn’t mean that representative Larry Bagley, Republican from Stonewall will not bring this back again. But it’s good news for the moment.

Andy 55:54
Interesting. Um, yeah, and I don’t think we have much of an advocacy group down there. But I think this is one of the tactics that you, you, you preach from time to time about, hey, look, if maybe I guess I’ve maybe I’ve heard Paul Dubbeling saying something to the effect of if you make this a law, we will sue you. And so you can expect to see me because this is not a constitutional thing for you to be able to do.

Larry 56:19
Well, I think it was more powerful than that. The courts had done, already declared it unconstitutional. So therefore, you have the threat. And the reality of it has already been found to be unconstitutional. But that never stops them if they want to do something. I’m surprised that they didn’t pass it.

Andy 56:40
I don’t I don’t see the incentive from a politician of saying I made like, I brought this back after these judges that after it was ruled unconstitutional, like, move on to something else, I don’t see why you would then like try to die on this hill?

Larry 56:55
You really don’t?

Andy 56:57
I mean, I don’t in a sense, like, I don’t see why driver’s licenses are such a big deal for someone to stake their flag in the sand and saying this is what I accomplished. I got driver’s licenses marked after they were ruled unconstitutional.

Larry 57:13
Well, it’s really not that complicated. The reason you would do that is because that’s where the people are. The people support this. It’s a soundbite issue. And you can go out and say, in short, sound bites that I protected children and families in the state. And I’m keeping the community safe by this marking, I don’t support it. But as long as the people do, this is something you can benefit from politically. What we have to do is make sure that the people don’t support this. But right now, if you were to take a poll in Louisiana, the poll would be very overwhelmingly in favor of having driver’s license marked. They would say, of course, law enforcement and people who deal with those kinds of people need to know exactly who they’re dealing with. That’s what the average person would say.

Andy 58:04
And I guess this goes back to our conversation about Supreme Court justices. Do they care about public opinion, and they should be removed from that. And if this was deemed unconstitutional, in spite of public opinion, this is a flip flop of the issue we talked about where we would want them to rule constitutionally not based on public opinion.

Larry 58:23
But the court didn’t say you cannot mark a license in any circumstance. They said you can’t do that type of marking. They were they were proposing a less of a marking than what they had been declared unconstitutional. The court didn’t say you can’t mark driver’s license. I keep reminding people, we mark driver’s license with all sorts of markings all over the country. You can mark driver’s licenses.

Andy 58:48
And Will says Tennessee has restriction code 88. And Will is that what’s written on it? That says code 88, or restriction code 88 on the driver’s license? Yes, he says that’s what it is. All right. And then we’ll move over to a New York Times article, it says victory in Philadelphia buoy supporters of progressive district attorney, we talked about Larry Crasner, somewhat regular, at least we used to as a new breed of prosecutor who is very focused on progressive prosecution. And he has stymied a primary challenge. Is that what you said it is?

Larry 59:22
That is correct. He has survived a challenge from the primary side. But he would probably have to go through a general election, but republicans are going to face an uphill battle in that urban center. So the fact that he’s survived the primary he’s good for another term.

Andy 59:39
Teresa says they were sweating it. We covered him when he was elected forever ago. And the thing that sticks out in my mind is take some number of 40 or 50,000 bucks a year to lock someone up. And if your prosecutor wants to lock up someone, then it’s more than like three or something years. Hey, write me personally an IOU for x times so many years times 50,000 bucks and is the crime worth that kind of money? So if you want to lock up someone for 10 years and 50 grand, are you willing to put up some what would that be? 500,000 bucks. Is that crime worth 500,000 bucks? I think that’s a really interesting way of of substantiating that the person did something horrendous that they need that much that much time that it’s going to cost that much money to the public.

Larry 1:00:22
And let’s go back over this next week. Because there’s an issue I want to talk out of Florida, but I don’t want to get into it now. But we’re going to talk about the cost of incarceration. So let’s put this back to come back to next week.

Andy 1:00:35
We’ll do it. And second to last if we got time. This is from St. Louis, Public Radio, Missouri senate passes a wide-ranging law enforcement and criminal justice bill. Larry, all of these are tied to the same thing we were just talking about two things back about the support is rising for criminal justice reform.

Larry 1:00:54
Yes, and this is a republican state. This is a Republican legislature, this Senate, we got to give them kudos. And it passed totally bipartisan 31 to two and like to keep telling folks. I promise you, the Democrat Party won’t vilify the republicans for leading the charge on this reform. But often, when it’s the other way around, you do get vilified. Remember the clip we played last week?

Andy 1:01:19
I do. It was the campaign ad against the person of something, act, whatever we got to support this thing in Congress,

Larry 1:01:28
The Breathe Act. So it was just so filled with misleading statements. But But anyway, we’re giving. This is the good news episode. We’re giving good news. And then we’re gonna close on one that’s not such good news.

Andy 1:01:45
Excellent. And that’s from St. Louis, Public Radio. And then the final one, and this is going to lead us out perfectly. Larry, this is from the Washington Post Mississippi court upholds a life sentence for pot possession. Now Larry you better be careful if you get one of these medicinal things that like you better watch out. You can be one of these people.

Larry 1:02:00
Yeah, and this is under a habitual offender statute and life sentence for habitual offense. And it doesn’t take much for the states that have those life sentences. And again, Mississippi is a very conservative state. Mississippi listeners, ask those lawmakers, do we really want to do this? Do we want to pay for health care? Do we want to put someone in prison for this? Should we rethink our habitual sentence? But right now, that’s what happened. The court said, Gee, we don’t make the laws here. We just interpret them and that’s what the law says and you are a person aren’t you? You do have two prior convictions, do you not? Well, why are we here?

Andy 1:02:43
Come on. This guy. He’s 38 years old, was sentenced to life in forest county in 2019, after a jury found him guilty of possession of more than 30 grams, which is 1.05 ounces, that I’ve realized that pot doesn’t weigh very much. So it’s like what like, physically, it’s probably a decent amount, but like it’s an ounce, man, that is not a lot of marijuana. That has been legalized in more than 50% of the states at least for medicinal use. But yeah, Mississippi is somewhere back in the dark ages in the 1950s. Where everything is bad. This is ridiculous. And life without parole for pot.

Larry 1:03:18
So well, you are a person, aren’t you?

Andy 1:03:22
Oh, my God. That’s ridiculous. That’s just terrible. I won’t use the word hate. That’s terrible. Larry, I think that it is about time for us to get out of here. I think. Is there anything else that you want to cover? Before we scoot?

Larry 1:03:38
Well, we have a new patron this week or a couple of ‘em.

Andy 1:03:41
we do have a new patron. I only captured one. And it’s a Michael. And thank you so very much. That was an annual subscription that seems to be the way people are going these days is to sign up for an annual one. Did we get any snailmail subscribers?

Larry 1:03:54
I’m not sure if it came in this week or not. But we are getting more interest and inquiries about the podcast and requests for… I know I’ve gotten requests the past week for sample transcripts. But I’m not sure if anybody actually signed up. But please sign up because nobody can provide you the information that you get from FYP Education.

Andy 1:04:17
And that is to say if you come in at the $15 a month level, then you can provide us with the name, address and telephone number of someone and Larry will get it sent into them on professionally printed material for someone inside to have a transcript of it, which is a really neat service that we’re providing. What is the status of our of our nonprofit? If you don’t mind me asking.

Larry 1:04:41
There hasn’t been any additional movement on that.

Andy 1:04:44
We need to get on that. I think it would be wise for us to do that in the near future.

Larry 1:04:49
We are going to encourage people to actually send the transcripts that are going to be at our FYP Education website. They will be available with a subscription form. And if you want to subscribe by becoming a patron or if you want to subscribe directly to receive the transcript from us, they will come like clockwork every week. Matter of fact, I’d like some testimonials from people who receive them about how reliable they are because they are sent out on Monday. After we record this on Saturday they’re sent out. But we would like to let people know that you’ll be able to print a copy, if you want to send it in, then you can bypass all that stuff because we want to get information to people who need knowledge. Knowledge is what people are thirsting for.

Andy 1:05:34
Absolutely. And just going back to patrons real quick, we are getting closer to that 100 point mark, where I said that I would play some goofy sax solo for you people. And we are getting closer. It’s about 15 or so away, so sign up. And so I will start getting my chops back up. And I’ll play a sax solo for the listeners.

Larry 1:05:55
All right, I’m looking forward to that.

Andy 1:05:57
That should be fun. You can find all the show notes and everything over at registrymatters.co You can leave voicemail at 747-227-4477. The email is registrymatterscast@gmail.com. And of course the best way to support the podcast show some love as over at patreon.com/registrymatters. Larry with that, I don’t have anything else and I hope you have a splendid rest of your weekend. And I will probably invite you back next week. Because I mean, if I find somebody else maybe you’ll be kicked to the curb. But otherwise, you can expect to be back.

Larry 1:06:33
Thanks for having me.

Andy 1:06:35
Take care Larry. Have a good night. Bye bye.

You’ve been listening to FYP.


Transcript of RM177: Montana Judge Orders Removal of Person Convicted in Idaho

Listen to RM177: Montana Judge Orders Removal of Person Convicted in Idaho

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts FYP. Recording live from FYP Studios, east and west transmitting across the internet, this is Episode 177 of Registry Matters . Good evening. How are you?

Larry 00:22
Fantastic. And now the Registry Matters has passed my age.

Andy 00:29
Oh man, look at that. We should have like some like pops and whistles and all that stuff. Did you get all your snacks and all that stuff consolidated leading up to the show?

Larry 00:40
Yes, I did. I closed down my cannabis.

Andy 00:43
You wait, you close down? What?

Larry 00:44
My cannabis?

Andy 00:47
I didn’t realize that you were into these? Are these like brownies? Are you smoking? What are you doing?

Larry 00:54
Well, I’m actually going to put in an application for the edibles. But I don’t have my card yet. But I am going to be looking into that.

Andy 01:02
Holy moly. I would like to remind everybody to click like and subscribe and share and all those other fun things to support the podcast, it would be fantastic. If you know what Larry if we could get to 1000 subscribers on YouTube, then we could make some money on YouTube.

Larry 01:18
I’ve heard that there’s an attorney I’ve been watching in Florida that’s been building his disability practice with YouTube and his subscription I mean his subscriber list is growing exponentially.

Andy 01:32
Oh, do you? You mentioned something about trying to possibly do some cross content of some sort? Did that move anywhere?

Larry 01:41
I haven’t reached out to him just yet on that I’ve been listening to many of his episodes, and he politicizes the disability and this process a little bit more than I feel comfortable with. So I would have to have a conversation that we’re not. We’re not taking partisan positions here on things. But he does tend to do that more than I feel comfortable with. But otherwise he gives really good information.

Andy 02:04
Interesting. All right. Well, that’s enough of the pre-show banter. I suppose now that you’re getting dope for the show, you’re going to be like, Hey, folks, welcome to the show. And you’ll be all slow and silly sounding. What’s going on tonight, there’s something kind of big you want to talk about isn’t there?

Larry 02:22
It’s a case from Montana, that has to deal with a person who had a registration obligation in Idaho and he subsequently relocated to Montana, and he has successfully petitioned, not petitioned, he has successfully challenged the constitutionality of the provision that requires that catchall provision. So we’re going to go do a deep dive, that’s going to be our major event. We’ve got some questions from people who are inside prisons. And we’ve got one question from person who’s outside prison and we’ve got some articles. And we are going to go back on episode 160. And talk about Indiana.

Andy 03:05
Are we’re gonna make it in an hour?

Larry 03:09
You’re gonna have to be very fast.

Andy 03:11
Okay, well, let’s go. Would you like to start with like the audio clip the voicemail message?

Larry 03:20
Sure, that’s a good place to start.

Andy 03:22
Alright, here we go. Here’s a voicemail message from a listener.

Unknown Speaker 03:26
Yes, I was listening to the podcast and I on YouTube. And I heard Larry say, to be a tier three in the state of Virginia, you had to be convicted with at least two charges. I only have one charge. And I am a tier three in Virginia, going on 21 years. I was retroactively changed in 2008. And I was hoping he could give an explanation on this on the next podcast about state of Virginia. If it’s you gotta have two charges to be a tier three, because I’ve definitely only had one charge. Thanks a lot. FYP.

Andy 04:12
I kind of thought I sort of remember hearing you speak it that way, though.

Larry 04:18
Well, the reason why we’re coming back on this is because apparently I confused everybody. And I’m going to try to clear it up. While we talk about tiers, we often get confused in that in and of themselves. When we talk about tiers because some states have levels where they’ve actually assigned a person a level based on their offense and our risk. They’ve done an individualized assessment. And the Adam Walsh Act, the Federal Adam Walsh Act, does not support that approach. They support the approach of categorical look at the offense. putting it into a tier category. And one of the categories as a tier three. And tier three is, by federal recommendations, anyone who has previously been at tier two, and has a subsequent conviction for another sexual offense. That would having previously been a tier two, that would make that person a tier three. But before the Adam Walsh Act ever existed, a lot of states, the overwhelming majority of states already had lifetime registration. Remember, tier three, under federal guidelines is lifetime. Many states already had a lifetime provision for people who had multiple sexual offense convictions. So what I was trying to communicate to him is that some states consider it to be multiple convictions, if it comes within the same case. And some of the majority of the states consider it to be multiple convictions, if it’s within two separate case numbers. And the way to think of it is like a habitual offender statute, a person can go out and commit 27 felonies and never be apprehended. And if you’d look at that, literally, you’ll say, well, that person was a habitual offender. No, they weren’t a habitual offender, because when they were brought to justice on the 27th felonies, if they were all combined into one case, that’s one judicial intervention. Sure. So it would not be fair to make that person a habitual offender merely because they have not previously had any intervention for us to determine if they are going to continue breaking the law or not. Well, that same concept would apply with a sexual offense registry requirement. If you make a person a lifetime, simply because they have multiple convictions. Within the same case, that’s not really fair, because we don’t know if intervention worked. So that’s why the federal guidelines as rigid as they are, they don’t recommend making a person two or three based on multiple convictions unless a subsequent conviction to the earlier conviction that triggered the registration obligation. So I was trying to convey to him that it’s very confusing, and some states will make you like Colorado, you’re not eligible for removal. If you have two convictions within the same case, We had an attorney Colleen Kelly, who explained that, and so that was what I was trying to convey.

Andy 07:40
Alright, well, that turned out to be like, clear as mud again, I’m just kidding. I’m, like, all of this stuff Larry turns out to be super complicated. Every state has their own different set of rules and conditions that fall under this or that, like, this is like always like a nightmare. And when you talk to this person, well, their conditions are very different than we’ll talk, you know, we’ll talk to somebody else in a different state, like between their case, and then the statutes don’t say every person is their own individual little entity. It’s a pain in the ass.

Larry 08:11
That is correct. Virginia has the prerogative of making a person a tier three. If they choose to, even though they did not meet the definitions that the feds recommended. Virginia can make everyone a tier three if they like.

Andy 08:26
Right.

Larry 08:28
Because that at least equals the recommendations.

Andy 08:32
Okay. I was just saying, because like, the way there’s the federal guidelines, but then everyone else, not necessary everyone else. The states have their own tiering structure, and what falls into what those are just recommendations of what they want you to do. But the federal guidelines if I’m not mistaken, correct me, of course, is there’s no limit. There’s no living or work presence restrictions. So the states have added those. Correct. So they can just like, well, we’re not going to follow anything that they say, and we’re going to exceed everything, Unless it crosses the boundaries of being unconstitutional. They can do what the F they want to.

Larry 09:10
That is correct. And remember, the feds are only dangling this in exchange for federal funds. You don’t have to do any of this. But these are minimum standards to receive federal funding. You need to at least classify certain people as a tier three. It’s a much narrower list than actually what the states have that have adopted their version of the Adam Walsh Act. Most of the states have gone beyond what’s recommended. But you can do that, because you’ve met the minimum recommendations. Again, Virginia can declare people lifetime there that weren’t recommended to be lifetime by federal guidlines. It’s not that confusing. The feds merely have made recommendations for you to get your money you have to do these things.

Andy 09:56
Okay.

Andy 09:59
And I’m totally going to need you We’ll move on, I’m totally gonna need you to set up this video clip of why you want to do this one.

Larry 10:05
Okay, so what we talk about frequently on here is the difficulty in doing criminal justice reform. Now, let’s be clear, I’m talking about positive reform, anytime you make changes in the law that’s considered reform. I’m interested in positive reforms that result in fewer people in prison, fewer people being arrested, and alternatives to incarceration. And I talked about the difficulty and I say that there’s vilification, primarily coming from the conservatives. So I’m setting this up to give you an example in real time. We have a special election for any member of Congress, in my district here because our Congress person, Deb Halland, was appointed to serve as U.S. Interior Secretary. So there’s a vacant seat and the candidate have been named by their respective parties in a special election is going to be held June 1. This is the conservative running and this is what he is saying about his opponent, Melanie Stansbury

Andy 11:09
Here we go. Press this button and everything will work.

Melanie Stansbury 11:15
We need to pass the Breathe Act in Congress.

Unknown Speaker 11:17
Melanie Stansbury supports the most dangerous legislation in America as Albuquerque faces record numbers of homicides, legislation and de funds and dismantles the police empties every federal prison in 10 years murderers, rapists, and child molesters walking free, “we need to pass the Breathe Act ” in Congress” stop the madness.

Unknown Speaker 11:39
Stop Melanie Stansbury before it’s too late.

Mark Moores 11:41
I’m Mark Moores and I approve this message.

Andy 11:48
Oh, that’s a pretty aggressive, like they’ve been they seem to have just taken like a quick little soundbite. We need to pass the breathe, act like okay, we need to do it right away. There’s probably a whole other sentence after that. That describes why. But they cut that off.

Larry 12:02
Yeah, I don’t know enough about the Breathe Act to really talk about that. That’s not to focus. What I’m focusing on is the vilification. There’s no one running for office that’s advocating emptying all federal prisons that I’m aware of. And if that’s in the Breathe Act , again, I don’t know. But I can tell you, no responsible candidate or even irresponsible candidate is advocating emptying federal presence. But what’s really so disingenuous about that, is that federal prisons are not filled with rapists and child molesters. Because for the federal government to have jurisdiction over sexual offences. There has to be an interstate component, most rapist and most child molesters would be in state prisons. So to attack Melanie Stansbury for putting rapists and child molesters on the streets. That’s so disingenuous and even murderers. In order for there to be a murder, there has to be a federal jurisdictional hook. Most murderers are in state prisons.

Andy 13:07
You ever remember the DC sniper? Like in the early 90s? I do a Malvo is the last name and like so they were trying to figure out if I recall, they were trying to figure out a way to make it a federal component. But those crimes were committed in DC I probably not DC that would have been federal? No, I guess it would be still like in that district. But there’s no way to prosecute them. So they tried to do it in Virginia where it had the harshest sentence. But because they killed people in those three areas, there’s still no federal component that hooked them in is, as I recall, I could be wrong, but that’s what I recall.

Larry 13:40
The absolutely correct. And what makes this so disingenuous is that the average voter, for the voter in this state, or where they are, they don’t realize that. So they’re hearing this as sectionalized ad, that murderers rapists, and child molesters will be free walking amongst us within 10 years. And they’re going to vote in a terrified fashion for the guy that sponsored that ad. I don’t even want to really give him airtime. But they’re gonna vote for him. A lot of our people that are on the registry will vote for him, because he espouses conservative values, but yet they profess they’re for reform. This is an example of what makes reforms so difficult. Melanie cannot actually go out and talk about what she’d like to do, because she’s gonna receive this from now until the primary not the primary till the special election on June 1. This is what’s coming. This ad and variations of this ad are being run continuously here. This

Andy 14:46
I’m sure they’re doing it on the radio a lot.

Larry 14:49
Radio and TV. This is what we need to stop folks. You need to call the people who run ads like this and say I would have voted for you but I reject what you’re doing? And if you do that they will stop running these type of ads, they run these ads because they work.

Andy 15:11
Doesn’t this then promote the idea that politicians are just all liars? You can’t trust any of them?

Larry 15:19
Why would it do that?

Andy 15:21
Because of you’re aware of it, I don’t suppose that the average voter is necessarily aware of it. But as you look at things, I remember the governor of Georgia here doing some similar kind of ad against the candidate that was running against him, and putting up something that she voted against something that made life easier for PFRS s. That she was doing it because it didn’t promote anything that was good for public safety was based on evidence and whatever that making it a 2000 foot living restriction, whatever it was at the time. But that’s what that was, was running on the air, then, because they’re making it such an exaggerated point. Because it’s not anything reality based. It’s just about fear, then people go what politicians lie. So the people on the people that would analyze these things, they know that that side of the politicians lie. And then going in the other direction, the right side leaning people would watch ads from left leaning politicians doing things similar, exaggerating and taking things out of context against their opponents as well. So both sides, do things that are exaggerated, and then no one knows what to believe from anybody.

Larry 16:29
Well, I guess if you framed the question that way, I would agree. But I think we have some responsibility to be informed. you couldn’t live 40 50 or 60 years, and not realize that no one has proposed closing federal prisons, all of them. we’ve, had a prison system ever since the country has existed.

Andy 16:52
Long before that. And all the other countries prior to there have been a way to deal with people that have performed some kind of thing against society.

Larry 17:01
There are people who have advocating sitting fewer to prison, but no one has talked about closing all federal prisons. That’s absurd. I think we have a duty to inform ourselves. It might mean giving up one afternoon at Hooters or giving up watching the Broncos play football, but you’re gonna have to spend some time understanding and be an educated and informed voter.

Andy 17:32
Hmm, I don’t know, Larry, that sounds like a pretty tall order right there.

Larry 17:36
Sure.

Andy 17:37
Or, hey, they could like listen to this podcast and possibly get some ideas on how to make life easier for PFRs. Hmm, there’s a thought there’s only a roughly a million of us nationwide, like actually directly impacted. Forget all the other ones. Like the handful of people in chat that are just one degree out from the person. That’s the registry person. I don’t know, man. We’re never gonna win. All right, Larry, let’s move on then. Because we have we have like 8000 questions and things to cover about this case. There’s Randall Menges versus Austin Knudsen. Is that what it is?

Larry 18:14
Well, I would say Knudsen But

Andy 18:17
Okay, Knudsen Knutsen and and forgive me. Because like I’m butchering your name, and I apologize. But let’s let’s dive over there for a little while, because this could take up like the majority of the time, and then we’ll have to skip over, not skip, but really compress the stuff at the end. You said it’s like, I mean, it’s 70 pages, right? I read all of it. But so you put this in here, and it’s from a US District Judge in Montana. What is this about sir?

Larry 18:47
Well, it is a challenge against Mr. Knudsen, who is the Attorney General of the state of Montana and Gary Sedar, who’s the bureau chief of the Montana crime information Bureau. And Sarah Malikie who is the head of the sexual and violent offenders program for Missoula County Sheriff’s Office. The question before the court is whether Montana may force plaintive Randall Menges to register as a sexual offender for engaging in consensual oral sex with another male back in 1993.

Andy 19:20
Why do we care? Why do we care about something from you know, there, you’ll be surprised I read all 72 pages and I found it absolutely fascinating. It was an amazing read and I stayed up for all of it. He is required to register having consensual sex with a 16-year-old when he was 18 years back in 93. That’s a long time ago there that we would care now. But as I understand it, that wouldn’t require registry obligation, but he engaged in homosexual activity. And Idaho did not go lightly on him. Did they?

Larry 19:56
They did not and I was having Preshow chat with another person I said this might explain why Idaho Senator Larry Craig a few years back decided to do his homosexual activity in the restroom in the Minneapolis St. Paul airport, rather than the state of Idaho. Because apparently they do not take kindly to crimes against nature, he was sentenced to 15 years. And upon his release from imprisonment, he was required under Idaho law and still would be required under Idaho law to register as a sexual offender. And, and that is, as at some point, he relocated to Montana. But he still could not escape his registration required because under a Montana sexual and violent offender registration act, he must register as a sexual offender in Montana, because he’s required to register in Idaho.

Andy 20:54
Right, just and that’s what we talk about pretty much all the time of if you were ever required to register or convicted of a sexual offense in another state, blah, blah, blah, all the little nuances there, you have to register here.

Larry 21:05
Yes, that’s the famous catchall clause that they have. And so yes, as he has to register as a sexual offender, because anyone who is convicted of a sexual offense has to register and critical to this case, it includes any violation of that definition includes any violation of a law of another state, to which the offender was required to register as a sexual offender after an adjudication or conviction. So he is a person he was required, and still would be required in Idaho to register because they haven’t updated anything in Idaho. So he would still be required registered today. So Montana said, Well, I mean, your person, right? You did relocate here, right? you’re required to register in Idaho. Right. So you have to register here. So what what’s your problem?

Andy 21:55
I’m surprised at how fast it moved because I hear about things. It just takes, like the even the Georgia case like the signs in the yards, that took years to get to go through before it got heard by the federal judge. How did this just happen? That he just filed in December? How did he pull this off in a handful of months?

Larry 22:17
I’m still trying to figure that out. Okay, you’re, you’re correct. That did move very quickly. He filed a suit, the December 9 of 2020. And he asserted a plethora of violations. He said the registration requirements are unconstitutional as applied to him. Remember we talk about facial and as applied, and he said it violated the due process clause of the 14th amendment. He said it violated the Equal Protection Clause of the 14th amendment. And he said it violated article two section 10 of the Montana constitution. And he moved for a preliminary injunction requesting that the court enjoin the defendants and their officers, agents and employees and attorneys and any person who is in participation from requiring him to register the sex offender in Montana. This This was an amazingly fast-moving case.

Andy 23:08
Did he also challeng in the source state in Idaho, about the constitutionality of the law?

Larry 23:14
He actually did. He has a parallel action going in Idaho. He’s challenging the constitutionality of the law, because the US Supreme Court had decided back in the 80s that it was okay for states to criminalize sodomy between same sex individuals. And then some years later, that was the Hardwick case. And then some years later, and I don’t know, the year that they decided Lawrence, but I think it was Lawrence vs. Texas, they decided that it was a person’s right to engage in sexual activity of a person of their choice. So he’s challenging the constitutionality of a registration requirement, because he’s arguing that the US Supreme Court has said that that behavior he engaged in cannot be declared criminal. So that is, in fact, a parallel challenge. And interesting, the defendants moved in light of that parallel challenged that this action in Montana should be stayed and held in abeyance. The court did not go along with that the court set a hearing on all the state’s motions, and decided to let the case proceed on the merits. And they had a hearing on March 30th. And Menges testified and this this case, there’s a decision been rendered and it’s just amazing.

Andy 24:44
You talk about the importance of standing did either of the state’s contest standing? And why would they contest standing?

Larry 24:52
Well, they would contest any because you’d ever get to a to a merits decision if the person doesn’t have standing. So yes, it appears that they did. Because remember, you cannot lose a case if you don’t go to trial? I’ll tell to people all the time and they roll their heads. If I’m the state and I can avoid you ever having a trial, I have no risk of losing, do I? fair? So it appears that they did. The court had the following to say, at all stages of litigation, I’m quoting from the opinion at all stages of the litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether the interest exists at the onset of the case in order to establish standing plaintiffs must show one, they have suffered an injury in fact, that is a concrete and particularized and actual or imminent, not conjectural or hypothetical. Remember, with a challenge called international Megan’s Law, I said it can’t be hypothetical. Yes, we’ll see. I didn’t invent that this is legal doctrine. Two, the injury is fairly traceable to the challenge action of the defendants and three, it’s likely as opposed to purely speculative that the injury will be redressed by a favorable decision. That’s on page nine of the opinion. So folks, I don’t make this stuff up. This is legal doctrine about standing at about what the courts can do. And you have to have standing, not liking something is not enough for you to take it to court unless you have standing.

Andy 26:20
To circle back to the point you just made about IML international Megan’s Law, they were challenging that this was going to create some kind of harm, but they hadn’t decided what they were going to do with the passport something like this, where the marking hadn’t been identified, whether it was going to be some big red X or some kind of tiny little marker, how do you say that there’s any sort of harm done. That’s what the attack was?

Larry 26:42
That is correct. They were speculating of what the Congress had put in there at the last moment, this passport identifier, marking, and they left it up to the Attorney General, and the State Department to figure out what it was going to be. And prior to figuring out what it was going to be, you cannot allege harm. You might have the requisite standing. But you can’t speculate about harm, because we don’t know what the marker is going to be yet. So therefore, we do not know what harm it will inflict upon you. And legal doctrine that I didn’t invent. And people roll their eyes when I told them that you can’t prevail at this point, because we don’t know what they’re going to do. So therefore, you’re speculating, you can’t do that.

Andy 27:29
Okay, it has to be an active damage. It can’t be some sort of future and you’re saying speculate hypothetic whatever. It can’t be some imaginary thing that you’re saying, well, this could damage it has to be damage done.

Larry 27:40
Well you can, the harm may not have happened yet. It can be imminent, but the harm wasn’t imminent, because again we didn’t know what the marker was going to be like. So therefore, we didn’t know if it was going to harm you or not.

Andy 27:54
Um, let me go back to the point. You mentioned earlier about that Montana requested its stay of this case pending resolution of the constitutional challenge in Idaho. The judge denied that request. Why and did he and was he correct?

Larry 28:08
I believe he was legally correct. And I will again read from his written opinion. quote, The court also notes that the focal point of defendants’ argument in favor of a state is that resolution of the Idaho litigation will have an impact on the suit is far from certain. Any ruling from the Court Presiding over the Idaho litigation would have little more than persuasive effect. If the court concludes the Idaho statue obligating Menges to register as a sexual offenders is constitutional this court is not precluded from reaching an opposite conclusion, or Montana’s requirement, and the defendants need not alter their enforcement or Montana law in response. So that’s directly from the judge. And I think he’s right, because Idaho cannot remove him from Montana’s registry. Montana could say, you are a person, aren’t you? You were at one time convicted there. Were you not? Even though they’ve declared the law invalid now. It is a fact that you were convicted, they could continue to maintain the posture that you have to register. And the judge is absolutely right. Anything that the Idaho court would do without necessarily preclude Montana from registering him but will preclude Montana from registering him is what this judge did. He precluded them.

Andy 29:24
Okay. Tell me what the crux of the case is. The Montana Attorney General said this will blow a gaping hole in the registry. Do you think it will?

Larry 29:33
I don’t think so. I don’t think it will at all. But that’s exactly what you would say in the position he’s in because I would just about bet that the public, not having taken the time to understand that this was consensual sexual activity between two people very close in age. That would not have been illegal headed occurred between a heterosexual couple. The average person in Montana is not going to understand that. All they’re going to understand is that there was a person on the registry that being let go. But the reason why I think that it’s correct is because the underlying criminal statute which obligates Menges to register in Idaho and according to Montana, does not concern itself with the age of the of the sexual partner. As the court noted, quote, Menges’ underlying criminal conviction is not for having sexual contact with a minor it is for having sexual contact with another male. And that’s why Montana law requires him to register, not for having sexual contact with a miner, but for having sexual contact with another male. And that’s from the opinion at page 42. So this is different, because it’s clear that Idaho has a problem with same sex conduct. And that’s why they required him to register. You hear the people, the LGBT community saying that the registry targets them. This is an example of what they are talking about.

Andy 30:53
What do you think the most critical and deciding factor was in the case?

Larry 30:58
Wow. Well since he asserted, he made several assertions, in my opinion, although he got relief on all three, it was the equal protection clause. The court stated quote, Montana has no rational basis for forcing Menges to register as a sexual offender on the basis of a 1994 Idaho conviction for engaging in oral or anal sex with a 16-year-old male, when he was 18 but not forcing those to register as a sexual offender who were convicted in Idaho in 1994 for engaging as vaginal sex with a 16 year old female. That I think was the most critical thing. Because here you’ve got, we clearly have an equal protection clause, and you would be protected had you had had heterosexual relations, you would be protected. But the same constitution doesn’t protect you, when you had same sex conduct. I think that’s what carried the day. But consequently, that operation of Montana law flouts to guarantee of equal protection, and Menges enjoys actual success on the merits of equal protection claim. That’s the other quote on page 58. I think that was of paramount importance to the judge. We have this clause in our Constitution, both Montana and US Constitution is for reason, you can’t deny people equal protection. That’s why the US Supreme Court decided that people can marry regardless of gender, gender, because the Constitution is blind to that.

Andy 32:31
Ready to be a part of Registry Matters , get links at Registry Matters .co. If you need to be all discreet about it, contact them by email Registry Matters . cast@gmail.com you can call or text a ransom message to 747.227.4477 want to support Registry Matters on a monthly basis, head to patreon.com slash Registry Matters . Not ready to become a patron, give a five star review at Apple podcasts or Stitcher or tell your buddies at your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry, keep fighting. Without you, we can’t succeed. You make it possible.

Andy 33:20
So let me try and understand this a little bit better from my point of view. The 14th amendment was put in somewhere roughly right after the Civil War. So late 1800s. So that has been there that made that the three fifths person thing and all that. So when did it become? I guess I’m trying to figure how to word this so that it’s clear and concise. When did it become the thing that same sex had the same equal protection as heterosexual, then for it to apply to this because Iowa law, Idaho law made it so that this was illegal, sometime prior to 1993? a crime against humanity? Whether hell you call it a crime against nature, but somehow now it’s okay. When did that switch occur? And how did that occur?

Larry 34:05
It happened when the Supreme Court ruled since like, about 10 years ago with the Defense of Marriage Act that that okay, people have the right to marry. The Constitution has an equal protection clause, it is totally blind. It doesn’t say you have equal protection as long as you do this with an opposite sex. Sure. So therefore, for all these years since the Defense of Marriage Act was struck down by the US Supreme Court, Montana, I mean, Idaho has not changed their law. So someone has finally put the challenge to them. I don’t know if he’ll succeed in at Idaho, but he has certainly succeeded in Montana, and they’re gonna have a hard time turning the ship around. Now, having said that, there’s always concern because the supreme court can change its mind, we’ve talked recently on episodes about how the Supreme Court has, has reversed itself on key issues and the blistering dissents by some of the liberal justices. Justice Anthony Kennedy is now gone. And we have a much different court than we had when the Defense of Marriage Act was passed. Is it possible that the Montana Attorney General could file a cert petition in the Supreme Court of the Ninth Circuit affirms the trial judge? Yes, it’s possible. Is it possible that they could take a second look at this and say, Well, that was that liberal bunch? And we don’t see it that way? Yes, that’s possible. They could, they could backpedal and reverse themselves on Lawrence, but I don’t hope not. I hope they don’t. But they could.

Andy 35:43
If we do if you want to drag this out for like, another hour or so but what did the What did the court decide on the other claims?

Larry 35:50
Well, the court actually awarded him relief on the other claims as well, they said it violated substantive due process, equal protection and his right to privacy. And these violations are ongoing. But to me, the most important one was the equal protection. I think, without the equal protection argument, he wouldn’t have won on privacy. And I’m not so sure due process would have carried the day as well. But but in conjunction, he’s one on all three. Now, this is an example of the judge has got three things he ordered relief so only one of them has to stick for the Ninth Circuit to affirm. And I banking on equal protection sticking.

Andy 36:29
That is a pretty powerful argument these days, as I see things coming up about equal protection. Do you think I kind of know the answer this, do you think Montana will appeal?

Larry 36:42
Now they’ve already said that they will, because it’s blowing a hole in their registry. And they’ve announced that intention already. And I’d like to cut them a little bit of slack because that is kind of their job is to defend the laws of the state. Now, in conjunction with defending that law, they could, the Attorney General could tell the state legislature, you were wrong on this. I encourage you to change the law. The problem with that is there are political risks. Can you imagine, we just played a clip about what happens with vilification? Can you imagine if this Attorney General and let’s assume that, that he’s up for reelection in 2022? Can you imagine if he doesn’t want to defend the sexual offender registry and he has an opponent that would like to assume the Office of the Attorney General of Montana? Can you imagine what those campaign ads would look like?

Andy 37:38
They would be pretty strong. I imagine.

Larry 37:41
That’s the reason why that’s the reason why he’s going to defend the law.

Andy 37:46
Does this apply to other people of a similar condition, same sex kind of relationships with a with a non minor and a minor? With things dating back that far?

Larry 37:58
I would say it will. It will give relief, if there are others, and how many there are in a small state like Montana, who knows but it’s not going to blow the gaping hole. This is not going to people can wish that this says that. That the catchall provision requiring registration for out of state convictions magically goes away. It doesn’t this doesn’t get you there. This is a small victory. Huge for this person. It’s huge for the reason that we we’ve talked about. But this does not. This does not negate the catchall provision.

Andy 38:33
When we when we rolled over into I think it was 2020. I asked you to give me an idea of what you think like the victories were and you said we continue to build a body of case law, I think is how you word of it is does this go into that kind of bucket?

Larry 38:48
It absolutely does. It serves warning now and we have to hope that the Ninth Circuit affirms, the Ninth Circuit that is. We have to hope that the Ninth affirms. Now in the case of a recent adverse decision from the Ninth they overturned in the Stephen May case. But if they affirm This puts the states on notice in the Ninth Circuit that your catchall provision better be carefully analyzed, because you can’t just throw a catchall provision in there that includes unconstitutional provisions like this does, and expect it to withstand scrutiny. And, this is an amazing victory, but it’s not going to dismantle the registry or that catchall provision.

Andy 39:30
So for the 12 people that live in Montana that are on the registry, this only impacts them with a pending thing in Idaho. What does that do for the Ninth then? or anybody else?

Larry 39:42
Well, it would be a similar application if there are other states who have those type of statutes still on their books, like Idaho does. And it’s triggering registration obligations all throughout the Ninth Circuit. I can tell you this, if I were living in Idaho right now, and I had a conviction for a crime against nature. I would be packing my bags and headed toward another state. I mean, why would you want to stay in Idaho be subject to the registry when all you have to do is argue this case? it’s not precedential yet, but it soon will be. It’s the Ninth upholds it. And if I had a choice to live in Montana, or live in Idaho, I would choose Montana if I didn’t have to register. Wouldn’t you?

Andy 40:21
oh, I see what you’re saying. Okay, so you’re saying the people that are already living in Idaho that you should be figuring out how to go move so they could possibly apply this challenge?

Larry 40:29
Everybody benefits from this challenge if the Ninth upholds it. The same legal doctrine would apply to anybody who has a crime against nature that’s putting them on the registry.

Andy 40:38
And then people in the other 11 districts, they could then use this as supporting information.

Larry 40:44
Well, anybody in the whole country can move to Montana. But you know, if the Ninth affirms. But I’m saying if I’m living in Idaho, I’m certainly going to get out of Idaho. I don’t know what other states require you to register for a crime against nature, but I certainly wouldn’t stay in Idaho if I had to register for that crime.

Andy 41:00
There’s a lot of there’s a lot of potatoes there aren’t there?

Larry 41:02
Absolutely.

Andy 41:05
Is there anything else on this before we duck out of here?

Larry 41:08
Let’s get out of here.

Unknown Speaker 41:09
Excellent.

Andy 41:11
I guess we let’s see, let’s uh, let’s jump over you wanted to acknowledge a question submitted by someone you want to go over that super quick.

Larry 41:18
Sure. We have a subscriber among our inmate subscriber base. This person subscribed for a year and he said Wisconsin prison, his name is Sean. He sent an amazing question. And we’re teasing it now for the next episode we’re going to talk about will Wisconsin extradite him from a foreign nation if he leaves Wisconsin, before completing his supervision? And we’re going to try to unpack that on the next episode. 178. So tune in if you’re interested in leaving the United States. I’m wondering what they’re likely will if you flee?

Andy 41:54
I’m interested in leaving the United States. Geez. And then we can move over to Fred is a good friend of mine and he asked about a clarification on a ruling that occurred came out of he said he posted a link about criminal legal news, said Seventh Circuit, Indiana’s sex offender registration act, other jurisdiction requirement unconstitutional violation of right to travel and you had some thoughts about them.

Larry 42:23
Yes, we took this case up on episode 160. So prison legal news or criminal legal news or whoever it is way behind the Registry Matters podcast and FYP education. But what we talked about was that these people had Indiana convictions, that they left Indiana, they never would have had to register as I stayed on RM 160. None of these challengers would have been required to register if they: one, had not moved out of Indiana and returned to Indiana after 2006; or two, had not moved into Indiana into Indiana after 2006. It was in 2006 that Indiana law was amended to include the requirement that forced a person to register if they had to relocated to Indiana and had a registration obligation in that state regardless of whether it was equivalent the Indiana which is kind of what we’ve been talking about in previous episodes. But Indiana got a little bit too cute. And so the challengers won on this. They have the right to travel and leave Indiana and return to Indiana and not be disadvantaged because they in fact, did travel. And that’s what happened to them. The mere fact that they traveled caused them to be disadvantaged and you can’t do that. The Equal Protection Clause protects the people of Indiana you can you can leave and you don’t get disadvantaged for coming back.

Andy 43:47
So this is only traveling, going to visit your grandmother and then you come back a week later. That’s that’s all this is referring to. These are people that are trying to move to another state and then move back.

Larry 43:56
Now these are people who had moved out and decided to move back.

Unknown Speaker 44:00
Oh, okay. Okay. Okay.

Larry 44:02
So these are people who had left Indiana by virtue of their departure and return. They were being roped in to Indiana’s registration scheme and the travel is what required them to register.

Andy 44:14
Okay. All right, then I think we we’ve done this really rapidly. Larry, we can cover some of these articles if you are.

Larry 44:17
Well, we’ve got we have a couple questions.

Andy 44:19
Let’s hit question one, and I’m going to kind of skip down a little bit since I have two questions. Can those who register post their own signs in the yard? I’m always hearing about sheriffs putting their signs to alert the public of a PFRS that lives there. Well, could you post your own? Here are some examples. When the stigma is removed, people will no longer be afraid to seek help and lives will be saved and restored. Less than 1% of sex crimes are committed by someone outside of the family. Rape is defined as whoever a slight of touch in Arkansas flight I can’t read that word Larry.

Larry 45:08
So, however slight.

Andy 45:10
Oh however slight Okay, I gotcha, gotcha. And then the second question is why doesn’t Arkansas have a halfway home for level three or four offenders? Cummins unit is filled with guys who have been granted parole, but because of their level have nowhere to go. And men have died here of old age waiting. God, that’s just awful. You can’t hey, you’ve been granted parole, but sorry, there’s no place for you to go. So stick around.

Larry 45:38
I want to take the last question first, about halfway houses. Why doesn’t Arkansas have halfway houses? Normally halfway houses or more often operated by private entities, these nonprofits, they somebody who has a corrections background or some kind of counseling background, they get together and they get a little money together and they form a halfway house. And they call it some type of rehabilitation, and then they go running to the government’s be it state or local, looking for contracts that will take your prisoners. Arkansas is not known for wanting to spend a lot of money on reintegration. In fact, most states are not but particularly the southern states are not. Halfway houses have a cost associated with you’re running program in a halfway house that cost money. So trying to secure funding for placement of people in halfway houses is very difficult, particularly if you fit int the PFR category. And then there’s one other thing that I want to pontificate about. And that’s the everybody says, wouldn’t it be great if we have a risk-based system? Arkansas, in fact, does have risk based system. And the level threes and fours have been determined to be higher risk to the community. So if you were running a halfway house, hypothetically, pretend you have a halfway house Andy pretend you want to keep your funds flowing and you want to keep good relations with the community. Because being accepted in the community is an integral part of operating a halfway house. Tell me if the word got out that you were accepting level three and level fours. Now remember, they have gone through this lovely process that’s individualized. Do you think the community that you operate in would be more accepting of your presence or less accepting? And do you think that the governmental entities that provide funding for reiteration Do you think they would be more or less or less willing to provide that funding? That’s a that’s a that’s a compound question. But

Andy 47:30
Sure. I mean, and I’m going to then expand threes and fours are people that have been deemed to be more susceptible to reoffending than level ones and twos? Correct, then, I mean, doesn’t that make logical sense that would pose challenges for the community?

Larry 47:50
That’s my point. So the halfway houses that do operate in Arkansas, when they’re trying to remain as an acceptable partner in the community, and have city zoning and county zoning and all these people off their behinds. The last thing they’re going to do is stick their neck out and be willing to take the highest risk offenders in the state. Now remember, the lovely risk-based system is what this is not a categorical approach to Arkansas. There’s actually a process you go through in Pine Bluff, and there’s a risk assessment. So this is one of the downsides when people think it’s a panacea. And I tell them, no, it really actually isn’t a panacea. This is one of the examples. The people who have had to go through that process now can’t be reintegrated because they’re deemed high risk. So the second part of that question is that they have their reasons as business people to not take level threes and level fours in the halfway house that do exist.

Andy 48:50
Okay, let me let me just throw this. So if someone had been convicted of a very, very, very minor crime, but then they end up going through this leveling process, and they are deemed these level threes and fours, if they had a categorical system, I think that’s the word you used, if they had that kind of system, they may have just been based on the crime been leveled very low, but because of the risk based system, then they got leveled very high. They could it’s a double-edged sword, it could go either way.

Larry 49:15
Absolutely, in fact, the people who think that it will be leveled low, and the risk-based systems are typically level higher, people automatically assume with a non-contact offense, that those people get candy, easy kid glove treatment, that you don’t get that. In fact, those tend to be the most repeated offenses. And they tend to be rated very high. So oftentimes, people who think they would be just in the fantasy world of being low level because they have the noncontact they would not. If you repeat something enough times like streaking, indecent exposure. They don’t refer to it as streaking anymore. But you could be rated very high in Arkansas’s system, because you’ve done it more than once. But yet, the mere act of streaking does not put anybody in physical danger. Well, I guess you could possibly have a heart attack if you saw something you hadn’t seen before. But, but there’s no real danger to the community of a person engaging that. But you could end up at a high risk. Yes. So yeah, so that’s a good analogy.

Andy 50:12
There was a very famous song about that song. Are you familiar with that song?

Larry 50:16
Yes. The first part of the question about the signs? That’s a great question. Because in our case, in Georgia, that is one of the defenses that the sheriff of Butts county has said. He said, Well, nothing precluded them from putting up their home signs to counter our sides. Now, of course, they didn’t tell the people that if a time you know. They didn’t say we assume that you don’t care much for our signs so you can certainly put up a counter message. But they’re arguing that in court right now, in the 11th circuit. Here’s what I’d say to you. If you put that sign up, while you’re under supervision, I can just about guarantee you that you will have a horrendous amount of adverse consequences. Now Arkansas, he’s more than likely going to have a huge amount of supervision because they are fond of imposing very long sentences in Arkansas. And then after a period of time they’re eligible for parole, and they serve the balance of that in the community. Its’ very similar to what Georgia does. If you put a sign up like that, your PO is not going to be happy with you. And they won’t violate you for that. They won’t say because you put a sign up. But here’s what they will say though. They will say that you are showing behavior characteristics that are not conducive to accepting responsibility. And if you’re not responding well to this officers’ motivation to turn your life around. And that you are that you are a risk to the community by the fact that you’re still in denial. That’s what they will say. So go ahead, put the sign up, find out what happens.

Andy 51:42
I can’t imagine why somebody would want to. I mean, we’re arguing in court over having the signs place that draws attention. Why would you then put a counter message up, like in advance of almost and draw that attention to yourself? Like, I would just want it to go away, and hopefully nobody noticed it while I was there.

Larry 52:03
So well, make sure I clarify When I say go and put the sign up, see what happens. That is that is code speak for do not put the sign up because yes, bad things will happen if you do that.

Andy 52:16
Obviously, that’s not what you would want to do. Yeah, I agree that yeah, this would be you being facetious and sarcastic going. Don’t do that. Very interesting. Um, yeah, like that. That last one. Like That sounds like a bad idea.

Andy 52:32
it’s a neat question. Nonetheless.

Larry 52:34
It is. That’s why I put it in here. I just, I just got that today. And I loved it so much. I said, I’ve got to answer this guy’s question.

Andy 52:40
Okie dokie. And then here is another letter that came in. It says, Dear FYP, I really like how that sounds les. Andy and Larry. I’m an inmate at Washington State doing time for a PFRS kind of crime and I saw the ad for NARSOL in prison legal news and decided to get a subscription. Wow, I was shocked to find a group that actually advocates for PFRs s instead of against us. I think I share the same sentiment as many other PFRs s in that I’d like to do more. But I understand that I am hindered by my situation. As the old adage goes, it’s a thought that counts. I also recently bought a one-year subscription to your podcast. Sweet. Thank you so very much. Anyway, I know you guys get hundreds of letters and questions, so I’ll try to keep the short. And the January and April issues of the NARSOL newsletter. There was a two-part article about the pseudoscience of the polygraph and speculation loophole. That completely sucked, by the way, and I had to wait two months to get the second half of the article that I really wanted to read. I can tell you firsthand that the speculation loophole definitely exists here in Washington. Most PFRs in Washington state have the polygraph stipulation in their judgment and sentence and it causes a lot of angst amongst our demographic. The article states the best advice is to seek the protection of legal counsel by having your attorney accompany you as a witness and advisor during the polygraph interrogation process. That’s a really neat idea there. It is advised that you answer controversial or incriminating questions with the response, I request my attorney to respond to that particular question. I was unaware that I could even have legal representation during a polygraph. And so was everyone else when I shared the article too. So I’ve got some questions. And I’m really hoping that you can address these in your podcast so I can read about it first. I know that many of the cases that are talked about in NARSOL are federal so I’m wondering I don’t think that’s true. They’re that they’re talked about in our cell our federal so I’m wondering if the advice given is directed at federal PFRs s? Or does the advice work at the state level too? Second, If I defer my questions to my attorney, does that not sit still subject me to speculation loophole as being deflection or avoidance? Third, going along with the second, Can I be jailed or violated for requesting an attorney answer my question on my behalf? FYP Thank you for all you do and all NARSOL does for us. And sincerely, there’s a PS which I won’t read. Larry, can you bring your attorney to your polygraph?

Larry 55:10
I can tell you that I did not write that article. Now I am the publisher of the newsletter. But I have to confess I didn’t read it. But I can tell you this, I would not have given that advice. I would never tell anyone to try to take your attorney to a polygraph examination. That will not go well for you. That would be just like the advice we gave to the previous person about, putting the signs. If you show up for a polygraph examination with an attorney, it is not going to go well for you. And in theory, it sounds good because you have the right to an attorney, and you have the right to have that attorney present before any questioning will ensue. The problem is, this is not a criminal investigation. This is a tool that’s being used to determine if you’re complying with treatment and the terms of your supervision. And showing up with an attorney would set off all sorts of machinery that you would not want. Because first of all, you don’t know what the questions are. The questions were composed when you get there. And they’re reviewed with you were in the pre-test interview. So therefore, you have the opportunity in the pre-test interview to object to the questions or to narrow the questions or to phrase the questions in a way that it will not provoke an adverse response. Like if a person says have you ever had sex with a person under the age of consent? That’s too broad. You’d say I have no problem with that question. But we need to narrow it. What is the age of consent? At what age are you talking about? Have I ever because ever means always so we need to narrow that question down? Have I ever had sex with a person under the age of 16 if that’s age of consent in your state since I was over the age of 18? Then you’ve got a narrow question. But if you just I am not answering that question because it incriminates me, that is not going to go well for you. If you have an attorney say my client is not going to answer any questions, because it could be incriminating, that is not going to work well for you. I would not advise that course of action.

Andy 57:15
Let me also, if you were also under the age of consent doing this, then it may not be a crime where you were so answering the question in the affirmative could give you a lot of problems when you didn’t actually like break any laws.

Larry 57:28
It indeed could but his question is about asserting his right to an attorney to accompany him to a polygraph. And if you do that, I’m not aware of it having been done. But if you do that, the polygrapher is going to go bonkers. I doubt the test will be administered; they’re going to notify the PO that you didn’t comply with the test. The PO is either going to depending on if they have arrest powers or not, they’re going to come out and take you into custody. If they have arrest powers, if they don’t have arrest powers in your state, they’re going to notify the court that you refused to cooperate with a polygraph exam and ask for a summons or a warrant one or the other. And it’s not going to go well for you. I just cannot I cannot advise this course of action. I know I’m being conservative. You can be jailed for not cooperating with this because it’s in the statute of our state. And I can’t speak for the state that he’s writing about. But I can speak to our state is in the statute, that polygraphs can be used to monitor compliance and treatment. If you refuse to cooperate with those, that is a violation of your supervision that could and likely would result in you being jailed. I don’t like to see people go to jail so I cannot advise that course of action. And does it apply to federal those decisions? No, they happen to be in federal court, because that’s the that’s the choice that courts if you’re going to bring a cause of action, you have a better chance of: A, not having a politicized outcome because the judges are there for life; and B, the attorneys bringing the cause of action, if they prevail, are going to be able to be paid and most PFRs s don’t have the financial resources. So although they were in federal court, that doesn’t narrow that in a way. In fact, I think the Utah supreme court after the Von Behren case in the Tenth Circuit, I think the Utah Supreme Court handed down a similar decision based on Von Behren. So it is the constitution the question is about incrimination and as the is the threat of incrimination real or speculative? The Von Behren case in the Tenth circuit was a little bit murky in terms of where you can draw the line and refuse to answer the question. You can’t just refuse to be polygraphed. I think you have a story to tell about a guy in Georgia who after Von Behren was decided he gave an ultimatum about paragraphs. Tell the audience what happened to him.

Andy 59:57
He tried to do that and they locked him up anyway. Yeah, he, but he tried to refuse the entire thing Von Behren just tried to refuse a single question or maybe just a couple questions. This dude was like, I’m not taking that because of this Colorado decision, he refused the whole thing.

Larry 1:00:11
Well, showing up with an attorney will be viewed as non-compliance. Attorneys are viewed as adversary and that in our adversarial system, that’s not an unreasonable position. And you show up for treatment, or for a polygraph with an attorney, that is going to be viewed as an adversarial stance, and it’s not going to go well.

Andy 1:00:33
Can we? Let’s go up to that first question. Talking about is NARSOL like talking about federal things? Or is it working at the state level? Oh, yeah, I’m sorry. That was uh, that was the first question that you just covered?

Larry 1:00:45
Yeah, I was I was saying that the federal court that’s where that’s where the more of the decisions are. But it’s not entirely limited because the constitution about self incrimination that’s the federal constitution that applies in all the states, your state constitution has to give at least the same level of protection as the Federal Constitution. Now you can go above, but you can’t go below, so you cannot force a person to incriminate themselves. The question is really murky here about where does the polygraph become incriminating? And that’s what the pre-test interview helps you figure out?

Andy 1:01:19
A person in chat is asking this. So you would get punished for using your legal right. And that’s what you’re just describing right there. This is just almost like your PO is asking you a question. Kind of off the cuff. Almost, I realize it’s an interrogation thing. I realize all that. But you’re not in a legal proceeding. And as you’ve described, if you stick to your guns, and don’t lie, I mean, excuse me until an answer and then stick to and say, I did not do the violation. You stand by that you’ve never seen anybody violated for this?

Larry 1:01:54
Well, what I’ve said is I’ve never seen the petition for revocation say, only in the petition, that the person showed deception on a polygraph. I have seen quite a few petitions say that the person showed deception on the polygraph. and subsequent to the, at the post test interview, they made the following confessions to this PO. I’ve seen that. But I, I don’t advise anyone to lie. FYP is not in the business of advising people to misrepresent. I’m telling you this, if you’ve taken the polygraph, and if you’ve spoken truthfully, you should not change your position. Because they say you’re showing deception. My answer would be I told you the truth. And then when I say, Well, why are you showing deception, say, if I could explain your machine, I would have so much wealth. I don’t know what I’d do with it all. But I can’t explain why your machine is showing that. All I can do is tell you the truth. And that’s what I’ve done.

Andy 1:02:51
I can’t tell you how the Kabuki machine told you that I was deceiving you.

Larry 1:02:57
And they’re gonna keep pushing here. They’re gonna say, do you have anything to tell us? And you know, we’re grown up here. We’re adults, and we’re here to help. Trust me, they’re not there to help that I can guarantee you.

Andy 1:03:08
And let’s let’s just make the assumption for the second question that we did bring the attorney into the office for the for the polygraph for the Kabuki machine that says if I defer my question to an attorney, does that not still subject me to the speculation loophole as being deflection and avoidance?

Larry 1:03:23
That’s exactly what it’s gonna do. They’re gonna see that it’s all sorts of obstruction. And it, believe me, it’s not gonna go well, if someone has a contrary experience that they’ve brought an attorney in and it’s gone. Well, please share it with FYP.

Andy 1:03:40
And then going along with that, do you think then, if we did the attorney there, and we did deflect the question, defer one to the attorney? Do you think that we’re going to get arrested for that one?

Larry 1:03:52
I don’t think you’re going to ever get to that point. Honestly, I think if the attorney is there, that test is not going to go down. I really don’t. I don’t think they’re going to test somebody with an attorney sitting there.

Andy 1:04:03
Back up at the top of this he talked about this. Like is NARSOl focused more on the federal side of things? I’m trying to see where that was, I remember going by it. I don’t consider NARSOL to be that at all.

Larry 1:04:16
Well, the way I interpret that he was asking if the case law only pertains to federal. Did he say does NARSOL only focus on federal because that’s not true.

Andy 1:04:29
Yeah, no, that’s that’s what I’m going after. And maybe while I was reading it, I wasn’t quite analyzing that the right way. I just that’s what the way that I thought that he was asking me so just Can you just clarify that then is NARSOL just focused on national kind of legislation or are they advocates at the state levels to?

Larry 1:04:47
Absolutely. In fact NARSOL focuses more on state issues. We don’t have any advocates at the national level.

Andy 1:04:53
Right? Because it because there’s not a lot of it happens to be like porn kind of related things. That’s probably the biggie big. That’s a federal because that happens across state lines.

Larry 1:05:02
Right. Plus there’s no federal registry. So we don’t we can’t fight or not existent entity.

Andy 1:05:08
Larry, you know there’s a federal registry and you just won’t admit it. So sure I do. I’m being very facetious, very, very, very, I don’t want anyone to come back and say, Oh, you said on 177 that this, there’s a federal register. No, show me where it is. So

Larry 1:05:25
Well, it looks like we’ve run out of time without getting any articles.

Andy 1:05:28
We did. Is there anything that you want to cover super quickly, before we move out of here?

Larry 1:05:33
I think we can carry some over to next episode.

Andy 1:05:37
Outstanding. So, we got a new patron. This is the second person to then do the annual subscription, which I’m super thankful for. And this is Brent, and I’m going to let you announce the new. This is like the Larry snail mail subscriber list. Who are the new folks there?

Larry 1:05:53
I’ve already forgotten.

Andy 1:05:56
Alright, well, it’s Sean and Edie. There are the two folks there.

Larry 1:06:01
And we just did Eddie’s question.

Andy 1:06:04
outstanding and if so thank you very much, guys. If you if you happen to pick up one of these in prison, there should be a subscribe form at the bottom of it to make life easy. And but otherwise as maybe, you know, spokes in prison and then we could get them subscribed and push this in and this would be great if we could get this into more prison and provide this information because these are like the seedlings if we want to indoctrinate people, we can indoctrinate them while they’re still in prison. When they get out. They can become lifelong subscribers if the FYP network and gain information and start their advocacy work while they’re still in.

Larry 1:06:38
Absolutely. And I hope Eddie doesn’t cancel his subscription. Now that I’ve answered the question.

Andy 1:06:43
You should sugarcoat these when people pay Larry, you should make sure that the answer is what they want to hear not something that’s true.

Larry 1:06:51
I’ll remember that.

Andy 1:06:55
Larry, as always, you are you do amazing legal analysis, and I can’t thank you enough. And I hope you have a fantastic rest of your weekend. And oh, sorry. Sorry. So I need to say these things. Um, registry. matters.co is the website. And you can find all the show notes and other things there. So but Registry Matters .co is where you need to go. And patreon.com slash Registry Matters to support the show. And with that, Larry, I bid you adieu, and I hope you have a wonderful weekend. I’ll talk to you soon.

Larry 1:07:24
Thanks for having me.

Andy 1:07:26
Take care. Bye bye.

You’ve been listening to FYP


Transcript of RM176: How Registration Rules Apply When Visiting Other States

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts FYP recording live from FYP Studios, east and west, transmitting across the internet. This is Episode What are we at 176 of Registry Matters, Larry, another Saturday night. You’ve not made it to that gorge yet? I thought I sent you that Uber.

Larry 00:27
You did. But at the last moment, they cancelled it when they saw the destination that we were headed to.

Andy 00:35
Oh, dang, well, you know, they didn’t refund the money, then?

Larry 00:38
Well, but I think they cancelled it. But inside that five minute restrict whatever it is, there’s a restriction period where you if you cancel, you still have to pay a $5 fee.

Andy 00:48
All right. Next time I send it, man, make sure that you make sure that they take you.

Larry 00:54
Okay,

Andy 00:54
Tell me, tell me about what we have going on tonight?

Larry 00:58
Well, we have a fantastic program, we have a special guest, we’re going to be talking about how registration rules apply when you visit other states or when you consider moving to other states. And then we have a submission from a listener who wants to get off the registry in Georgia. We’re going to talk about that he’s not with us but we’re gonna talk about that. And then we did have a listener question from inside prison, I guess we should say a reader question that we decided to carry over to next week. And we have some articles and we have a clip of a politician grandstanding. That should be fun.

Andy 01:34
Excellent. Cool. Cool. Cool. So I guess we will introduce the guest we have D is joining us from Pennsylvania. And he is a new patron coming in at a very generous level. And I would thank you so very much. And like I said, he is going to have just a whole battery of questions to throw at Larry and almost like a speed round, like, Am I gonna get a bell? You have one minute to answer the questions. There may be something like that.

Larry 01:57
That sounds like

Andy 02:00
We’ll do it that way. All right. D, welcome to the Registry Matters program. And thank you for joining us kind of on short notice.

Guest Speaker 02:06
Well, thank you for having me.

Andy 02:08
Cool. Well, I guess I’ll just I’ll sit back and relax and watch you to duke it out.

Guest Speaker 02:15
So I guess the main question is, is the whole lifetime travel? Like when you look at Florida in California? What is the deal with like, you know, say 30 years from now I still go to Florida? Am I still technically supposed to register? If I stay there more than three days or two days? I know you guys always argue what that is. But

Larry 02:35
well, I’d have to know more information are you going to be traveling as a person who’s registered or a person who’s not registered, the time you do the travel?

Guest Speaker 02:43
after you’re off all the registries in your in your home state after you’ve passed? I’m in Pennsylvania, it’s 10 years. So I’d be off another year here. And then what would be my your opinion of my obligation to Florida or California or wherever you had to register for life?

Larry 03:02
And that’s one of those questions. I think we batted around just a little bit in pre-show. And it’s truthfully, if you were to call those states, and you were called more than once, you might get different answers from the States. You would run across some people who would tell you what if you’re no longer a registered offender, you don’t have to bother with that. And then you would have someone answer and say it well. If you have a conviction at any point in your life, you have to register because your lifetime here. And it becomes murkier and murkier, because like for example, California has just started that removal process, that’s going to be very difficult. But prior to that California was lifetime. So if you had anything that would be a registerable offense in another state, it would most likely be registerable in California because of the breadth of how inclusive their registry is. So prior to now, they would probably tell you, of course, you would have to register if you were if you hear beyond whatever the time limits are in California for a visitor or a person temporarily present. What would they tell you now, after people are being removed from the registry? And I do not know if people have actually been removed? I think the process was supposed to start in 2021. I don’t know how well it’s working. But I don’t know what the answer would be. There are sometimes when people ask questions, we don’t know the answer to them, and neither do the authorities. No one knows the answer to that question. If you have a lot of paranoia about you, and you believe that the hovercraft is on the horizon, you might would consider registering. I can only speak for myself if I had been discharged from registration. I would be very hesitant to go put myself in jeopardy again because Florida if you visit Florida for that 72 hours of that 48 hours, whichever you believe is the requisite number. They will not remove your name from that registry list. So I would be very hesitant to go put my name on that list knowing it would never be removed.

Guest Speaker 04:57
Then would the once you’re on that Florida registry Is that then considered? You’re on a registry now? So if you move to another state that says if you have to register? No, would you now? Well, technically, now I have to register again, because I’m on this state’s registry, because I know a lot of the states say, well, you have to register, basically, you have to follow your state or our state, depending on which one’s worse. That’s most of the text I read.

Larry 05:20
That’s actually one of the best questions I’ve been asked because those catch 22s do happen. So for example, if you were to be a non-registered person in Pennsylvania, and you were going to Florida, and you were to be worried about the hovercraft and you registered in Florida, and then when you left Florida, in order to close the loop, you would need to report back into the state of where you’re registered, of course, you have no report or no state to report in to. But what if you were out of say, Wisconsin, where they have a nuance in their law that says, if you’re moving to Wisconsin, or entering Wisconsin and you’re, you’re registered in another state, you have to register there. And that happened with an individual who contacted me wanting to know how to get off the registry. He had lived in, Nevada working in casinos and he did not have to register. Because his conviction did not require him to register in Wisconsin. When he gets to Nevada to get his gaming card, he had to register and he decided life on the registry wasn’t as glamorous as they’d hoped it would be. Anyway, he went back to Wisconsin, and they said, Well, you have to register here, because you’re coming from a state where you’re registered. So what if you return to Pennsylvania? And I haven’t done the research on this? And what if Pennsylvania said because you’re entering from a state where you’re registered, you have to register here? I don’t think I know the answer to that either. But it is a great question.

Guest Speaker 06:42
That was always one of my one fears. If you leave a state that you have a good is Pennsylvania is a very good state because they ruled that it’s a punishment. So if you’re prior to 2012, correct me if I’m wrong, but they you’re kind of locked in there is they can’t really change it after the fact now on you.

Larry 06:59
You’re correct because of the Muniz decision, and whatever the other name was, there was a couple of decisions that were very favorable out of the state Supreme Court. And, and people, people there have received some relief. But I thought they passed a more benign version of registration. And they and they were applying that to the people with the older convictions is that is that an error? Did they not do that?

Guest Speaker 07:25
As far as I know, yeah. They changed it. So if you’re a prior to 2012, you got to follow the old rules. And then after 2012, you had to follow their new rules that now to follow the lie, I suppose.

Larry 07:36
So Well, again, that would be why I gave the answer I gave at first, if I’m not required to register in a state, I’m going to be very, very hesitant to go to another state as a visitor and register. I can’t advise anybody not to do that. Because the last thing I wanted someone to come back and say, well, Registry Matters said that. But I’m telling you just speaking for myself, I would be very hesitant to do that.

Andy 08:01
Hey Larry I just want pause for a moment. I’m seeing chat from a person in Pennsylvania that says they did Muniz but Lacombe and Witmayer, reversed that subchapter H sub chapter I reimposed SORNA. Is that saying that people that were convicted before those dates also then have to register? I’m not clear on what she’s asking. But I want to make sure that we’re not passing out super bogus information. Well,

Larry 08:26
Well, that’s what I was thinking too, that they had that they had reimposed registration, and a more benign form. Okay, so we can bring Theresa in next week or even now if you want to, but yeah, I’m not totally sure that, that I’m the best to give advice about PA.

Andy 08:47
Theresa can would you be prepared to if I unmuted you right now? She might have like, 45 grandkids hanging out. Okay. She said, Sure. All right.

Theresa 09:00
Hey, guys, So I told the 45 grandchildren to be quiet for a minute.

Andy 09:03
Super appreciate it. Hey, Teresa, how are you?

Theresa 09:04
I’m okay.

Andy 09:07
You’re the head person in charge of Pennsylvania over there. Correct.

Theresa 09:10
And well, I’m not in charge. Thank God. But yeah, yeah. So there were two cases that went before the Supreme Court. There was Lacombe and Witmayer. They heard them together because they were similar. They both kind of were lined up with Muniz looking for the same decision as Muniz got and basically Supreme Court reversed it and said that it is not punishment, but sub chapters H and I which we are talking about the two different schemes, one for those convicted, or not one for those whose offenses are before December 2012. And one after they’re still intact. However, it’s pretty disturbing that the basically the same court kind of did an about face with Lacombe and Witmayer when looking at Muniz. So I just wanted to make that clear.

Andy 10:03
And you’ve got a lot of noise in the background. Can you mute yourself? I’ll leave you unmuted, but if can mute yourself.

Theresa 10:08
I will, I will mute me.

Andy 10:10
Awesome. Thank you. Appreciate the clarification.

Larry 10:14
So, all right, so let’s, let’s move on, because I’m not wanting to give any bad advice.

Andy 10:24
All right. Let’s keep going.

Guest Speaker 10:27
The next one’s more specific about Maryland itself. And from what I understand, they follow like the federal kind of guidelines, and they have like a reduction at 10 years. And just wondering if you have to file for that 10 years, or is that 10 years is automatic, because it like states, if you didn’t commit another crime, or another sex offense, if you finished your probation and if you completed appropriate sex offender treatment program. So it’s automatic, or that’s some sort of appeal?

Larry 10:59
My understanding is that you have to file for that. And I tried to have a guest, but she’s with a mother who’s having issues with mobility, and couldn’t come on. But my understanding or recollection is you have to file for that. And there’s a process that doesn’t go through a court, but it goes through the Department of Public Safety and Correctional Services, or vice versa, Department of Correctional Services and Public Safety, whichever it is, you have to file with them. And then they clear you once you submit the documentation that you’ve done that. Well, what confuses me is, if you’re going from a state where you’ve already done that, then you would not be handed off to Maryland as a registered person. So why would you want to go register in Maryland? So you can go through the effort trying to get off if you’re already off?

Guest Speaker 11:48
I guess that’s the question. That’s kind of the question around all of these if you’re off in your state, what are your obligations? If when you read the details of that state, you should not be on anymore?

Larry 12:00
Well, I guess, Andy do you have any idea how many times we’ve had episodes where people went to the registry office ended up having to register medical the rest of their life without having to register? The complexity

Andy 12:12
That guy in North Carolina, they went like three times and they told him no twice. And then the third time, they’re like, wait a minute, you haven’t been registered? It was that one?

Larry 12:20
Yeah. Well, there’s also the McGuire case in Alabama, we could go on with people who insist that they want to register, I have a firm belief that if you have been dutifully discharged from registration, not if you’re seeking to evade registration. But if you’ve been discharged from registration, if another state discovers you, and believes that you would have to register and have an obligation there that they would notify you of such. I have not been given one example in the years we’ve been doing this program, or the years, I’ve been doing advocacy of person who had been relieved of registration obligation. And they’ve been subsequently prosecuted, just because law enforcement stumbled upon them. Is it possible? I guess it’s possible. But I tend to like to believe that something is more possible when there’s been an incident of it happening. So I would believe that if a person had been relieved of registration properly, had gotten a letter in Pennsylvania, and they were to be living another state. And that state felt they should be registered by either someone ratting them out, or them having an encounter with law enforcement and a criminal history being pulled, or whatever, they would give them a notice of an obligation to register. That puts you in a conundrum if you’ve get a notice of obligation to register. And you really don’t want to register because most people can’t pick up and leave really quickly. But that would always be in the back of my mind, as I would pick up and leave really quickly. And go back to where I was.

Guest Speaker 13:52
Well your twist to is, like you said about the guy in Nevada, if you know, you go there, and then you have to register and then you try to go back to your state. And then there your state’s like, well, now you got to register, because you have to register there, even though you’re only there for a week.

Larry 14:05
There again, that’s why I don’t tend to want to surrender myself to registration authorities if I’ve been lawfully discharged. And I am emphasizing you have to have papers releasing not that you’ve released yourself by not complying. But if you’ve actually been terminated by either a timeout, or they or you’ve termed out or whether you filed a petition, and the court has granted if you’re actually relieved of your registration obligation. I challenged the audience I think I’ve done this before, if you can show me a case where someone who has been relieved or their obligation to register and who was discovered in another state who got prosecuted, I would like to see it. I’ve had that challenge open for a long time I’ve had the other one if you can show me a violation of supervision where the petition says this and this only and don’t add things to it. It says that the person showed deception on a polygraph test. And therefore were we the state are moving to revoke. Everybody shows me these petitions and they always say, it shows deception on a polygraph test. And in a post polygraph interview, the person admitted to x, y, z, and ABC and D and bla bla bla. But where you can just show me a petition where it says showed deception on polygraph? That’s it. I have not been given one yet. You can show me one where a person has been terminated from treatment because they failed a polygraph I’ve seen, I think one or maybe even two of those. But this is an imagined situation. And I can understand having a vivid imagination when you’re facing significant penalties, but they would seem like it would be more credible to imagine it if you could find some incidents where it’s happened.

Andy 15:51
To circle back super quick, Larry, Brian and chats, it seems to me if you’re off, you’re off speaking of the registry, how can another state enforce you needed to be on their registry? If you’re no longer on any registry? Isn’t that because the language says something the effect of if you’ve been convicted of something, it has nothing to do with whether you ever had to register, you could have had your conviction in 1910. And you’re in a state now that says that you will register as of yesterday. And that’s why you have to register?

Larry 16:21
Yes, that’s what we covered it last week about the automobile. Since this is a civil regulatory scheme. Each state is able to define the scope of what they consider to be a sexual offender, their list of sexual offenses, and their dates of coverage, and how far back they reach. Like, for example, in Alabama, if you’re alive, and you’ve been convicted, you’re covered. And that’s what happened to Mr. McGuire. He was he had an 89 conviction out of Colorado, and he was not covered there. But when he decided to move to his home in Alabama, he decided to go into the office and asked did he have a registration obligation? And his idea was the same as the listener? Well, since I don’t have to register in Colorado, of course, I don’t have to register in Alabama, and Alabama told him well, not so fast. You are alive, aren’t you? Yes, you did. You did show us conviction papers from Colorado? Yes. This is you isn’t it. Guess what, you have an obligation to register here. And if you try to leave without registering, we’re going to lock you up. And that’s what that whole case that his brother, who was an attorney took to the federal district court, which is still pending on appeal in the Eleventh circuit, as far as I know, there has not been a final decision on the McGuire case. But yes, you can, you can have an obligation and one state expire. And that doesn’t stop the other state from imposing it on you because they can define what a covered offender is more broadly than the state that you were convicted in.

Andy 17:50
And I also want to circle back on that specific thing. Every state is kind of like their own country. And I’m doing like air quotes on the screen here. That New Mexico has their own rules, their own laws, their own regulations, and California has their own and Montana and everyone is their own independent sovereign. And they get to make their own rules, as long as they don’t breach what the federal stuff would tell them to do something along those lines?

Larry 18:14
Well, I would say not what the federal tells them to do, what the Constitution prohibits them from doing, okay. Everything that you want to do as a state you can do as long as the constitution doesn’t preclude it. And that’s what people think about this because they look at the AWA, the Adam Walsh Act guidelines. And they say, gee, the Adam Walsh guidelines recommend this as a 15-year tier one. I said, so what, that doesn’t preclude your state from declaring at a 25 year or a lifetime. And you got to prove that it’s unconstitutional, all the things that you’re having to do while you’re registered, you’ve got to prove that it’s unconstitutional. So they can have the term as long as they want it to be. And so yes, that that would be correct. If those recommendations are implemented in such a way that they that impose too many disabilities and restraints, then you have maybe a viable constitutional challenge, but the feds can’t tell the states what to do.

Andy 19:15
Oh, continue on their D.

Guest Speaker 19:18
So my love My last ones, another specific state. But before I say that, I asked what your advice would be to everybody if they are trying to move to a state. Do you think hiring a lawyer in that state who is specifically geared to understand the registryinfo is even helpful, or is it everybody’s really just going to tell you? Yeah, you know?

Larry 19:41
I love that question. I generally do recommend hiring lawyers, it’s kind of like the business I’m in. But I always put the qualifier that the lawyer actually has to know the law that they’re giving advice on and people tend to want to call lawyers that are not really apprised of this issue in the nuances of registration. I’ve been, I’ve been providing training to attorneys in the state for I’ve even forgotten how many years. And it’s amazing how many of them don’t understand the various nuances of the three versions that we have of registration, and the federal interplay. And they believe that there’s a federal registry. So I would advise a person to try to seek out competent legal advice, if you’re planning on moving to another state. What I would be more emphatically what I would advise you not to do don’t call the state registry people. I mean, the place where you’re going to get the best advice is not from the registry office, because they do not want you to come. I think I remember telling you that thing. yourself Andy a few years ago, when I said they gave you they told you the most gloomy scenario, because they do not want you to move there. Oh, totally. Yeah. So. So what? And also

Andy 21:01
Then it calls into question, Larry, that the whole thing about having the family and some kind of support system that kind of calls that into question. I mean, yeah, we want you to have support, but probably only where you are now Don’t come here to try and get support this. I mean, it’s kind of it. It doesn’t feel genuine when they do it that way.

Larry 21:19
That is That is correct. I had that argument one time with a with a with a client. And he said, I would be more stable. If I were in the state where my family was, I said, Yeah, you would be. But that’s looking at the global the greater common good. And that’s kind of liberal mumbo jumbo there. I mean, when we talk about the common good, I agree with you. But the people who are running these departments of probation and parole, they’re not looking at it from the global good. They’re looking at it from what is going to minimize the risk that we have to take here. And having that person come when you add the compounding effect of how many people come to a state that have no attachments previously. It’s just not it’s not an enticing position. I have not heard of a state that welcomes people forced to register. To their state. I’m not aware of that state. If there is one. It hasn’t surfaced to me.

Andy 22:18
All right. D continue? Please, sir.

Unknown Speaker 22:21
So then, when you say qualified, because I’ve done a lot of googling, I think my wife called about 10 different lawyers and got, I think, six different answers. But how would you even go about finding someone qualified, that actually knows what they’re talking about?

Larry 22:39
That is a great question. And I wish I had the answer of how you find I know that the state advocacy groups usually they have a few lawyers that they rely on, we do in our state. And I know Florida does. I think Florida does the Gil Schaffnit comes to mind a lot. Georgia with the litigation we’ve been doing, we’ve got working with a guy named Mark Yurachek. He’s been doing a lot of work on GPS monitoring. There’s usually in the states where there’s either an advocate or a full affiliate of the National Association for Rational Sexual Offense Laws, that would be a starting point. But it is tough, because too often, they’re happy to take your money, and they really can’t help you. The best thing they can do is to tell you if they really don’t know what they’re doing, and not try to sign you up. Of those 10 of the of the phone calls are made how many were willing to take a fee?

Guest Speaker 23:38
Not that many, actually, only a couple actually wanted any money. Most of them just told you to go to the state basically and ask them and a bunch of them said, we’re just fine. Move there. That was Maryland, by the way, for that 10 year.

Larry 23:53
So but yeah, this is gonna be something we’d like to get back to all another episode, because it’s fascinating. It’s the type of issue that affects either a lot of people right now, or potentially a lot of people in the future. Because our country is mobile, people move if you just watch the census numbers come out watching the population events, people move, not just because they’re looking for a better place to avoid the most difficult registry requirements, but they’re also looking for greater economic opportunities. And so this, this is something that keeps coming up. And we can visit this multiple times. And it never gets boring to people.

Andy 24:37
Because every state is different.

Guest Speaker 24:40
I don’t even mind paying somebody to figure out but it’s like, you know, I had the same thing during conviction that I paid a lawyer and an end up the public defender was 10 times better. So you know, I don’t mind paying for it, but it’s unfortunately you don’t know who to pay. And obviously it’s not even their fault because it’s a hard answer to come up with because it’s, you know, like some of the lawyers said They said, well, it just changes all the time. So it’s so hard to even know.

Andy 25:04
Larry, I don’t, I might be out of line calling this out. But isn’t this an area where you could help us people that we people, the lay people figure out if the attorney because they can blow smoke up our tush all day long? And we don’t know necessarily if they’re qualified to represent us, but you would be more qualified to know if they’re able to handle the case in XYZ state?

Larry 25:26
Well, I would think I could certainly offer some help in that regard. Many times attorneys don’t like the type of questions I asked them. When attorney tells me that it I’ve learned this from trial and error. But when attorney tells me about how great they are, particularly when they when they take a case on the front end, when a person’s pre-trial, and they tell me that you’ve got nothing to worry about. The first thing I asked him tonight trials, have you done in the last two or three years? Of course, the answer is zero. I haven’t done any trials. Then ask them how many cases have you resolved in this particular jurisdiction, because if you, you could have an attorney who does wonderful work in one county, and they don’t have the same success rate in another county. They don’t have the same relationships with the prosecution. They just don’t have the same standing another county, so they might not be able to get a favorable result. So I started asking questions like that, and they tell me that maybe we should go look for another attorney. You know, that’s what I was helping you remember a friend from Georgia that we got hooked up with, with an attorney and they got his conviction overturned a few years ago? Mm hmm. I do I do. Well, of the of the half dozen lawyers we visited in the metro Atlanta area. I was not very popular, but a couple of them because of the type of questions I asked. But we got the right lawyer, we got the job done.

Andy 26:54
Yep. I’m with you on that? Well, I mean, even like, my attorney didn’t like me. I was asking him questions like you don’t like attorneys very much. I said, I’m just skeptical of the Voodoo and magic that I need you you’re a gatekeeper. So I’m asking you questions, because I’m about to drop a big dump of money on you. So like, maybe I can ask you questions about how you operate.

Larry 27:14
Now those were fair questions, you were asking him?

Andy 27:19
All right, How much more? Are we done here? Or do you have more?

Guest Speaker 27:23
The last ones is just more specific about the Virginia thing? I don’t know if you have much information on that, because they, they have like lifetime and 15, as far as I understand, but you never off the 15 you have to petition the court and the judge has to release you from the 15. I was wondering, I also wonder about the same thing in Maryland? Is that something you can do before you move to the state or not?

Larry 27:45
I have never been aware of a person being able to petition for removal from a registry that are not subject to. And here’s why. Okay, when we talk about being overworked and understaffed, that’s not necessarily the case. But whether you’re overworked or understaffed or not, you don’t want to do any extra work. And if a person files a petition, and I’ve received that petition, and they’re not living in my jurisdiction, the first answer I’m going to write down is going to save me a whole lot of work, I’m going to say this person is not subject to Virginia registration. Therefore, this is not a controversy that’s ripe for deciding. This is a hypothetical, they may never be subject to Virginia so I would write up a two paragraph response, and ask that the case be dismissed. If I can think of that they can think of that. The way I read the Virginia law, as we were looking at pre show, you can actually file a petition for the tier one. So the tier twos, the tier threes are those who have multiple convictions that it wasn’t clear, if the multiple convictions within the same case, number, if that’s considered multiple if you have to have two separate cases. But the tier threes or a person with more than one conviction is not eligible to petition. but it said a tier one could petition after 15 years and it states that they shall be released if the judge finds that they that they don’t pose a risk to public safety. And a tier two can fall after 25 years. My problem with this is that those petitions are not required. It’s just like California, just like the states, under the rigid federal criteria, those people can just ride off into the sunset. Now you can have a process for that extra five-year reduction for tier ones it’s available. You can have a process to make sure that they beat all those things on the list. But if you just want to let the if a person wants to stay on the registry for another five years, they shouldn’t have to file anything for a tier one because that five years is reduced from the 15-year tier one basic obligation. So if you don’t want to get treatment, and you don’t want to go through all the Kabuki of filing a petition, they could still just let you ride off into the sunset after 15 years and they could let the tier twos ride off into the sunset. They don’t do that. Why not? I already know the answer to it but why not? It’s creating work for attorneys is what that is. And it’s also making the victims’ advocates happy giving them another chance to come in and bash the person and to say negative things. And so it’s another obstacle to keep from actually thinning out the registration list, but it’s not necessary. It’s not required.

Andy 30:27
Okay. D Anything else?

Guest Speaker 30:30
That’s all I thank you guys very much.

Andy 30:33
You’re welcome. You can’t do you want to stick around, you’re welcome to if you want to chime in, or we can. Let’s go and kick you to the curb and all that.

Guest Speaker 30:39
So I’m gonna be quiet until I hear something crazy.

Larry 30:41
Oh, we’re gonna do Georgia next. So you might find this interesting.

Andy 30:46
Yeah, if you if you have any questions that you would like to chime in. RM Promo: Ready to be a part of Registry Matters. Get links at Registry Matters.co. If you need to be all discreet about it, contact them by email Registry Matters. cast@gmail.com. You can call or text a ransom message to 747 227.4477. Want to support Registry Matters on a monthly basis, head to patreon.com slash Registry Matters. Not ready to become a patron, give a five-star review at Apple podcasts for Stitcher, or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting. Without you, we can’t succeed. You make it possible. Like Larry said, we’re gonna move over to this Georgia segment. And I would like to then then clarify because you put this here for me to say about providing legal advice. Yes. But that also applies to the last segment that and in general, neither of us are attorneys. One of us knows a lot more about law. If you want computer questions answered, that’s me. But legal stuff, that’s you. Anyway, I’m, so we got a question from a new listener. And he is asking, seeking any guidance that may be available for the procedure to file paperwork and subsequently be classified and removed from the registry. I can’t afford an attorney in my case, but would like for me and my family to finally be free of the shackles of remaining on the registry. any guidance you may be able to provide me would be greatly appreciated. So what where do we go from there?

Larry 32:30
so well. You talk to a person, right? I did. I don’t I talked to him. And I think he has a good chance at getting off the registry.

Andy 32:40
Okay. Um, and why would those? Why do you think that?

Larry 32:45
Well, there are a number of reasons. First, he’s residing in Georgia, and he was not convicted in Georgia. And that changes the dynamics significantly. And second, has a victimless crime. And that makes a huge difference as well.

Andy 33:00
Okay, so my conviction occurred in Georgia, and you’re saying this person was not convicted in Georgia, but living here? How are we different?

Larry 33:09
You’re different in that you under Georgia law, you have to file in the county where you were convicted. A person who wasn’t convicted in Georgia has the opportunity to file in any one of the 159 counties in that state. And all you have to do is be residing in one of those counties. Now I’m not advising people, I would never do that, to go shopping in the 159 counties. But I can tell you this, of the 159 counties, there are counties who have a very large approval rate of those petitions, a very large number that are approved, and are counties of 159, who approve virtually none of them. And if I were a person with a non-Georgia conviction, I do not believe I would plop myself into one of those 159 counties that seldom discharges anybody from registration, I just don’t think that would be in my best interest to do that.

Andy 34:04
So no matter where I live in Georgia, so I just removed myself from probation. So it’s just easy, I can just kind of pick up and move somewhere in the state without a whole lot of grief and aggravation. But I would still have to return to this county to do any sort of further modifications?

Larry 34:23
In terms of your registration obligation, you would have to file in your county of conviction. But this person, what made his odds go up what makes him a very good candidate of the many things that makes him a good candidate. Because that he can file in the county he lives in and he happens to be living in Newton County, which is just east of Atlanta. You go through Delkalb and then Rockdale and then Newton and it’s still considered metro Atlanta. And Newton is a pretty tolerant place. It didn’t used to be that way. But Newton has really changed and the Superior Court judges in Newton County are not nearly as bad as they once were. So he’s got 20 years of sobriety since his offense happened. He’s got, I think, either 12 to 15 years of non-supervision since its offense happened. And as I pointed out earlier, he has a victimless crime. And when I say victimless crime, so the Newton County Superior Court judge had that been a Newton County conviction and had there been a real victim, that would be the risk to that superior court judge, and the district attorney. Remember you file the petition and you serve the district attorney and you serve the sheriff. The registration official is the sheriff. So you serve these two parties, there would be a chance that that victim would have either connections in the community, or that there would that would have been a sensationalized case, that would just be too hot to touch. Because it was so bad. But we have a case here where it was a sting operation in Florida, and the person traveled from another state to Florida to meet a minor, of course, there was no minor, they’re just law enforcement. And then that was turned over to the feds, and the feds prosecuted him. And so he has a victimless crime. We don’t consider the law enforcement officers to be victims. I mean, they’re witnesses, but they’re not victims. So he’s got a victimless crime. He has nobody connected to Newton County. He has a relatively tolerant County, and he has a DA that would not have any axe to grind with him unless the sheriff has some dirt on him that gives the sheriff angst. So all those things make him a wonderful candidate is too bad that he can’t afford a lawyer.

Andy 36:42
And then let’s move on to your second point that he has a victimless crime. Can you explain what the victim like? Why is it such a big deal that it would be a victimless crime in this case?

Larry 36:53
It’s such a big deal, because that’s where the pressure often comes from on the removal because the states insist on bringing the victims in some cases that’s required by statute and some case, they do it by practice, because it’ll sink your petition. They’ll do it even though it’s not in statute in California, it’s in the statute, but that’s one of the reasons why I say that that’s gonna make it very difficult. But what would happen, in the case of this particular person, there won’t be anybody there, the cops are not victims, so they won’t be there. But if he had a minor, who was still living in Newton County, there would be the real possibility that that person, maybe an adult now would show up and say that I’m traumatized for life because of this. And that puts pressure on the both the district attorney and the superior court judge, but he’s not going to face any of that, because his crime is without a victim.

Andy 37:49
Interesting, interesting. Um, and let’s go over we sort of touched on the previous segment about needing an attorney, this is something that you harp on all the time, why are you so obsessed that people should not file their own that’s called pro se, P r. o space? Se. I think that’s the like the Latin term for it.

Larry 38:08
That is correct. And I’m obsessed about it because the stakes are high. If the registry is as bad as what we say it is, and I take your word for it, it really is that bad. That means the stakes are high to get relief from the registry. And the average person is way over their head when they are attempting to navigate the hurdles. Georgia law provides a process for removal under anybody in Georgia is OCGA 42-1-19. I believe it is. But let’s go through the basics. I’m obsessed because the district attorney is the first person you have to notify. And they’re going to be your opponent. Their lawyers, right? The sheriff, although many sheriff’s very few are lawyers, they generally have a department of any size has access to legal advice, either the county attorney or they may if it’s a large enough department, they may have their own attorney. So you’ve got people who have legal resources and training and knowledge which you as an average person do not have. So you’re going into a game you do not understand when you’re trying to be removed from the registry. And the judges, the referee who issupposed to be neutral. And the judge is not going to help you get through this because the judge is also at risk on removing you from the registry. If you don’t do the job, right. Your sink, you sink your ship. And this is a high stakes game. And that’s why I’m obsessed because I want you to win. Play the Bear Bryant clip. The reason why I’m obsessed is because I’m trying to win the game.

Andy 39:58
sorry, it took a second.

Larry 40:01
That’s why I’m obsessed.

Andy 40:06
But tell me what happens if I call or this individual calls? Our DA and goes, hi, I would like to get myself removed. And I’m going to take you to court. Can you tell me what you think about me? What happens in that kind of in that situation?

Larry 40:22
Well, it would be very bizarre if that if that conversation actually went down. But, that is exactly what needs to happen. But when you call the DA, like, this person got angry, because he called the DA, they wouldn’t give him advice. And I said, Well, they’re your opponent, they have a conflict of interest they are on, they’re going to be in the very case with you that you file. And they’re going to be on the other side, arguing for the state of Georgia. Therefore, they have an ethical conflict. But assuming that, that you could find a DA that will talk to you, you need to have a conversation about how they are going to react to the petition. And I stress this because I hate to see you spend 5000 to 7500 dollars if you have no chance of winning. So it’s imperative, you know, what the DA and the sheriff are going to say? And when you have an attorney that their attorney can have that conversation, either in person at a coffee shop, or by phone, they can have the conversation? Yeah, what I’m going to file on behalf of my client, and then the client at what is your office position going to be. And you need that information that helps you decide if you want to continue to move forward with your removal process petition if you’re going to actually go forward. And it helps you to decide how much more money you want to sink into it. Because you may have a DA that says, Well, you know, we, we don’t really have any particular angst with your client per se. But our office has a general policy that we object to all of these, but it’s not going to be very vocal objection. But we are going to say that we object. Then that will empower you with information that you don’t have, you know that a DA is not going to come in with all guns blazing. But you know, the judge being that the DA is taking oppositional stance, although it’s not a strong oppositional stance, you know that you need to empower the judge. So that tells you need to get a psychosexual evaluation, a current one. And what everybody says, Larry, you don’t understand. I got a treatment in 2004. And I had glowing reviews. And they loved me in therapy. And I said, Well, that was 17 years ago, I want to know about now. And so that that would tell you that you need to get a current eval, that it’s worthwhile to continue with your effort to be removed. But you need to give the judge some additional ammo, because the DA is going to be opposed to you. That’s why these conversations need to happen.

Andy 43:00
And what would you recommend as the most critical point in this whole process?

Larry 43:06
it’s imperative that the conversation with the DA’s Office and the Sheriff’s Office take place, and particularly in Georgia, since it’s a sheriff that does the registration. The sheriffs have an awful lot of information on you, particularly the aggressive sheriffs that, that monitor the people closely. They go out and collect intelligence from neighbors and you think this is totally benign until you file the petition. But if a neighbor like say, You’re single person, and you’ve never been married, and you don’t have any children, and the sheriff goes out and says we know we will keep an eye on guys because he’s on the registry. And we’re just wondering if you’ve seen anything out of ordinary any kids around? Well, yes, matter of fact I did. A couple weeks ago, I saw some teenagers hanging it out and blah, blah, blah, well, that goes in their intelligence file about you. All the stuff that Neighbors tell them about you can be used against you later when you seek relief from the registry. So therefore, you’ve got to know what’s in the sheriff’s file, what they’re going to come at you with, if you have a really, really good relationship with the sheriff, and they’ve told you that they would like to see you off the registry. I still have a little bit of dubiousity, but that goes a long way. But if you have any kind of bad experience with your local law enforcement, if they’re constantly harassing you, and leaving flyers on your door, and it seems like they’re being overly aggressive, there’s a good chance that they’re going to try to hurt you when you file to be removed. You need to know this unless you just enjoy burning your money. Because that’s what that’s what you’re goana do.

Andy 44:49
so let’s talk about a retreat option. It’s why would you not move forward any person with I mean, shoot as I mean, my handlers kept asking me, hey, when are you going to try and get off this and I was like, I don’t know. I’m, like, allowed to, so I wasn’t expecting like, I like an entitlement out. Like, I mean, the judge sentenced me to so long I am expecting to do so long. But so why would someone go? I’m going to not burn my money. I’ll wait till something more opportune. Why would someone do that? Why would someone with good sense, but not one off the registry?

Larry 45:20
Well, in terms of wanting off the registry, it I would think if you didn’t want off the registry, that there would be something wrong with you that you wouldn’t have good sense. So the question I’m asking is, even though it would be very irrational to not want off the registry, as the coach said, we’re trying to win this game. And what we want to do is strategically play this game, to up our odds of winning the game. Now, if I’m advising a person, on strategy, I am not going to advise a person to go into a firing line, when there’s a hotly contested DA’s race, I’m not going to give that DA the chance to pick out my client, and in a reelection cycle, and come in and say, and if you reelect me to be the district attorney, I’m going to make sure that this group of people is treated as bad as possible. And a sheriff could do the same thing because they run for election. So you don’t want to put yourself in the line of fire. Unless you have lots of money to burn. And you don’t mind waiting two years to be able to file again. But just what both the state of Virginia and Georgia require coincidentally is you have to wait two years after you’ve been denied. So if you could, if you could wait six months out of an election cycle if a judge is gonna retire, and you’ve heard that, well, that that frees that judge during that last term to do what they want to do. So you say, well, gee,

Andy 46:54
Like a lame duck session, so to speak?

Larry 46:55
yes. So a judge or a DA that’s not running for reelection. They have a lot more freedom. I remember, there was a president recently named Obama. And, and he had an open mic where he said, after I get reelected, I’ll have more flexibility when negotiating with Putin, you remember that?

Andy 47:14
Sure. Yeah.

Larry 47:15
Yes, he got a lot of criticism for that. But that’s the reality of our system. So therefore, I would consider all these things in terms of strategically positioning myself, where I would not be walking into a very hostile situation politically. I know this is not the world the way it should be. But it’s the way it is. And you filed a petition at the wrong time, you might find yourself being vilified. So you need to have an attorney who’s somewhat politically savvy, which is not a gift that most attorneys have, unfortunately. But you need to have asked that question. Is this the best time politically to do this? And you could do your own homework. It’s not that hard to figure out when political good times when something’s politically good or not so good. And that’s what I would tell everybody do to try to do the political analysis, stop thinking that it doesn’t matter, because it does, and figure out what the political considerations are, and make your decision based on those because that’s the way the system works.

Andy 48:19
Will in chat said that you said that expression wrong? It’s supposed to be it’s not the way it should be? It’s the way it is B, you said that we have that expression, right?

Larry 48:30
He’s correct. I haven’t said is be lately.

Andy 48:34
No, you have not. Um, but on this subject, just like it? Why do you have to make everything about politics all the time, Larry.

Larry 48:45
Why do I do it? Because that’s the system we live in folks. We live in a in a in a country that has a political system, we govern ourselves through that system, if I pretended it didn’t exist, then I would not be serving you. Well, I’m telling you that that these are considerations. They can be very significant considerations.

Andy 49:05
I the way that I’m framing that, though, is that we have a law. In the case of Georgia, it’s 42 dash whatever it is, that says that when these conditions are met, you can do these things. But you just described an example where this may not be maybe you’re sort of outside of the margins a little bit or things may be a little bit more complicated that you still have to take the politics into consideration. It’s not just black and white. It’s not just Hey, this is checkmate, you’re done. There are other things at play.

Larry 49:30
But that’s correct, because we have to elect those district attorneys and we have to like those judges in many states and Georgia is one of the states where the judges are elected. And if you don’t think they think about community sensitivity, just ask judge Persky.

Andy 49:50
All right. I don’t think we have anything else here unless a D you’re still there. Do you have anything you want to chime in on or Larry, do you have anything else you want to cover before we move this On?

Larry 50:03
Well, I would like I’ll take that on as I would like for the person who, who made the inquiry to consider really seriously having an attorney, he has an excellent chance. And in my view, if everything he told me is true, and he, he, he truly can afford it. I looked up enough information about him. And he admitted that, but I asked him, I said, Well, you know, since I know, the county, and I know where you live, that’s not a poverty zone. And he said, Well, I really would prefer to spend the money on starting a business. And I said, Well, you know what, this may help your business to be a whole lot more successful if you’re not on the registry.

Andy 50:41
Yeah, no kidding. Because we’ve covered will in chat has sent me story after story after story where they almost getting doxxed major newspapers are putting articles in papers talking about this local business person wants to run a cake shop or something like that. And then the people go up all up in arms because they’re running a business that perhaps would have children attending. It’s not like you’re running a bar, let’s say where kids would never be present, but something where kids may be patrons. And it sounds like a bad idea. And then there’s almost like a town revolt, and they go out there with pitchforks and torches.

Larry 51:17
Yep. And that’s what I was trying to convey to him is that he doesn’t know the system well enough. That’s not what he does for a living. And if you look at that, and I think I said four it’s 42 section, the removal process and George’s 42 dash one, dash 19. But when you look in the highlighted sections such petition shall be served on the district attorney in the jurisdiction where the petition is filed, the sheriff of the county where the petition or where the petition is filed, and the sheriff of the county where the individual resides. Service on the district or sheriff may be made by mailing a copy. If petition for releases denied another petition for relief shall not be filed within a period of two years from the date of the final order of the previous petition. If you’ve got two years to burn them, go ahead and do it. But I strongly urge you not to do it yourself. Unless you have significant legal training, and I still wouldn’t advise you to do it yourself. Even if you have significant legal training. I just can’t i can’t advise people to do these petitions themselves that they say, Well, I have the right to. Yes, you do. You know, if you’ve got that I have the I have the right to fix my car.

Andy 52:29
And just before we close that all out, just do you think is there any benefit to doing it pro se? Is there any level of sympathy or concession maybe that’s not the right word, that the court would then provide you of being just Joe Blow off the street, that they’re not going to be so formal and harsh on you for not knowing the rules and procedures?

Larry 52:49
I don’t see it that way. I think they expect you to know the rules when you proceed pro se. In particular, at the superior court level. You know, that’s a court of general subject matter jurisdiction. It’s not a small claims court. So it’s not a court of limited jurisdiction. They expect you to know what you’re doing. And it’s just I mean, the criteria, the court may issue an order relief in the individual from registration, or residency or employment restrictions and whole were import if the court finds by a preponderance of evidence that the individual does not pose a substantial risk of perpetrating any future danger of sexual offense. That’s actually a pretty good standard. The court may release an individual from such requirements or restrictions for a specific period of time. There’s, no shalls here in Georgia, and I just don’t like that those odds I like going in armed with the information of where the DA is going to be where the sheriff’s is going to be if they have any, anything that they’re going to say about the client. And I want to know if we’re going to have victim notification, what the victims are going to say, I’m going to if this is a crime where there would be a potential victim, I’m going to hire an investigator, I’m going to find out what that victim is going to say. Because I want it said before we go to court

Andy 54:08
And remind me about standards of evidence where does preponderance fall on the scales?

Larry 54:13
That is slightly better than 50%? So more likely than not.

Andy 54:15
So if the judge feels like you have slightly more than 50 50, a crapshoot, that or roll of the roulette wheel. If you feel slightly better than 50 50 then maybe they’ll release you.

Larry 54:28
Yep. And that’s the that’s the that’s the downside. It’s the may, if it said the court shall release you. But it says may. The preponderance is the right standard, but

Andy 54:43
Okay. Okay. So I can’t imagine that there’s anything lower.

Andy 54:51
Alright, I think we are done there. We can move over to this clip. Do you want to set up the clip from the good senator?

Larry 54:58
Yes, I believe this is Something that just basically was predictable. We talked about it on episode 149. And I don’t even know how we got to that point. But we were talking about money for dead people. The government paid dead people money. And I said it’s only a matter of time before there will be criticism of the payments that are being made as a result of the stimulus packages, there’s been what three or four of them now. And I said that they will be the criticism of paying money to dead people. Lo and behold, I came across a Senator John Kennedy from Louisiana I believe he’s from so this is not the Kennedy family from Massachusetts, but Senator Kennedy had, he had something to say about paying money to dead people.

Andy 55:41
By golly, I hope my tech works, it worked in pre-show, here we go with a clip. And it didn’t work the way I wanted to do.

Senator John Kennedy (R) Louisiana 55:51
For example, we waste $144 billion a year, every year on improper payments. We send checks to people who are not entitled to receive them. For the earned income tax credit, for example, we spend money to on people who don’t exist, or aren’t qualified to receive Medicaid. We even send money to dead people.

Andy
All right.

Larry
And all what he says is true. And there’s no way to avoid sending money to dead people. My friend, Albert’s mother-in-law passed away last weekend, and she got paid her Social Security benefit, but she did not live long enough to be entitled to her for that month. So she was paid and that money will be owed back to the Social Security Administration. The stimulus payments that were forced out quickly, because of the dire economic circumstances and factors of we wanted to we could play what I said, but we were in an economic calamity earlier and 2020 when this when these packages were put together. And they needed to get money into people’s pockets who were not being allowed to work by governmental decrees. And I said, it’s just inevitable that they’ll pay people they’re dead because they’re using 2019 and 2018 Tax Return information. And believe it or not people die daily. In this country,

Andy 57:37
Oh, what? No, stop it.

Larry 57:38
So we’ve paid I’m sure we’ve paid hundreds of millions, if not billions, of dollars of stimulus payments to people who were deceased at the time the payments were made. And the government will attempt to try to recover those. But the point I made in pre-show is that this is a part of a compassionate society. When we pay people, when you’re receiving Social Security benefits, sometimes you get caught up on the other side of that Social Security will receive a report that you’re dead. And it’ll be a transpositional error in the social security number. And a data entry error will cause a person to be declared dead. And it’s not the right person. And when that happens, and they dutifully terminate your payment and you contact them and say, Hey, I’m alive. They day nope, you’re dead. Now, if you’re living, Social Security, check the Social Security check, you probably would not be amused by that at all. So we build a lot of these programs with the intent of honesty and integrity. And we know that when people are receiving money, whether they be businesspeople that are receiving lucrative government contracts are whether they’ll be individuals receiving public assistance, we know that people will always tell the truth, we know that. But some of the rules are based on retrospective budgeting, and some of the rules are based on perspective, budgeting, in terms of what you anticipate your income will be. If it turns out that you in good faith, projected wrong, you may have an overpayment and vice versa with retrospective budgeting. When you do retrospective budgeting, it makes it harder to get paid because you go to the food stamp office and be totally broke. And you don’t care so much about retrospective budgeting. You want food stamp relief, right? You need something to eat. And right did they ask you to build we need to do a prospective budget. You’re not amused by any of that stuff, because you’re in dire straits. So we try to build a human compassion into these programs. And you end up as you do with anything that deals with human nature. There will be people that will exploit that. But I got news for you, Senator Kennedy. Our federal budget deficit is so large is that if I took your number of $144 billion dollars at face value. Now, we cannot assume that all those payments were honestly made. That’s the amount of overpayments that were made. That would not come close to closing the deficit gap, not even close. The last fiscal year, we ran $2.1 trillion, the previous fiscal year for COVID-19, we ran $984 billion. So I got news for you. And the first part of that clip, he was talking about that Biden wants to raise taxes, he wants to raise the gas tax. And he says when in fact, he wants to raise all taxes? Well, he hasn’t said that. But we do need to revenue folks because the budget is way out of balance.

Andy 1:00:45
Tell me, you think, though, tell me if you think that had they gone too small on kicking out payments? There would have been similar criticism later in the game of how much people are suffering. I don’t know that there would have been a way to do this, like, too little too much just right, like, what is the Three Bears? I forget the story?

Larry 1:01:09
Well, we’ll we won’t know until we unpack this in the future. We’re seeing some early indications of some inflation pressures. And it may be that there was an overstimulation, we’ll have to unpack this and evaluate how much stimulus was done. And whether it was too much or too little. We were able to unpack after 2008 2009 recession, that the anemic growth that the Republicans complained so much about was because of very little stimulus, they didn’t want to do any stimulus. And they called the $784 billion stimulus. They refer to that as the porculus. And that did keep a lot of government employees, that locally and state employed that would have had to been let go public safety vital to the people. The states were hemorrhaging money and didn’t have money to pay their employees. A lot of that $784 billion went to keeping people working and vital teachers, you name it, fire, firefighters, and so forth. But we won’t know if the right amount of stimulus was done. But we are seeing there are shortages of key materials and raw materials, there’s price pressures, and we may have some significant inflation. We may realize we overstimulated. But you’re right. If we didn’t do enough, they would be looking back like we did in 08 09, the great recession. We didn’t do enough, according to the experts who’ve unpacked that looking back with more than a decade of time.

Andy 1:02:39
Larry, we are at 101. And I don’t know, do you want to cover any one of these couple articles? Or do we just want to jump ship?

Larry 1:02:48
Let’s just carry them over to next week. And let’s get out of here. Because we’ve got some patrons to recognize, don’t we?

Andy 1:02:54
We do we have. We just have one new one. And it is a Peter. Hello, Peter. And he Oh, let me just mention this. I just recently converted Patreon over to where you could do annual memberships. And he is the first one and I can’t thank him enough. It was at a very generous level. And I appreciate it so very, very much. As does Larry and we are getting closer to that 100 goal where I will do some crazy sax for you people.

Larry 1:03:20
That looks like I’m looking forward to that. And then we have we’re getting more and more mail from the prison audience. And we’ve got one that I intended to take up this week, but it’s just too long from the Orange county jail in New York, but you’re not New York apparently has an Orange County. But we’re gonna do like LeShawn’s question next week.

Andy 1:03:44
Perfect. Well, with that, Larry, I will bid everyone in chat to do there was a great conversations going on there. How you get there is become a patron and then you can join the live stream chat and watch us record this whole thing live. And, Larry, I appreciate you providing all the information and D Thank you for coming on. And I hope everybody has a great rest of the weekend and I will talk to everybody soon. Thanks, Larry.

Larry 1:04:08
Thanks for having me.

Andy 1:04:11
Good night.

Unknown Speaker
You’ve been listening to FYP


Transcript of RM175: Supreme Court Overturns Win for Alaska PFR

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts FYP. Recording live from FYP Studios, east and west transmitting across the internet. This is Episode 175 It’s May 1st Larry, Registry Matters. Happy Saturday night. How are you?

Larry 01:40
Well, very well thank you. It’s good to be here and it has caught up we have caught up with my age.

Andy 01:46
Oh sweet. I didn’t I’ve never known that you were 175 Wow. Wow, that’s very impressive. are you celebrating with any beverages this evening?

Larry 01:56
Just vodka.

Andy 01:59
Just vodka. This doesn’t have anything to do with the pain from the accidental last week.

Larry 02:03
It does but vodka is very effective. All you have to do is just swallow fast.

Andy 02:09
Oh, doesn’t it like I seriously I know you’re not a drinker. But I hear that junk burns like an MF as it does its thing.

Larry 02:18
I have heard that.

Andy 02:22
Just a quick update. We talked about it last week briefly that you got into a kind of a significant tail ending accident. And how are you physically How are you?

Larry 02:33
I’m still I’m still in pain. I’ve still have lacerations that haven’t healed and I’m still waiting to see my dental professional to see how bad the face is smashed on the inside but but I I’m still alive. They didn’t get rid of me. But guess what? There was another accident One week later to the day. The same spot maybe 20 feet further north. same location.

Andy 02:54
Um, you had mentioned something about possibly breaking your hand. Did you go check that out?

Larry 02:58
Oh, yeah, there there’s no there’s no fractures but the pain didn’t go away.

Andy 03:05
All right, then. Well, we got we got the humanitarian side of things out of the way. Now we need to go on to the meat and potatoes. What’s going on tonight?

Larry 03:14
Why don’t we have a jam-packed episode? We have four questions. We have a story from the state of Iowa. We’re going to talk about the Supreme Court in a recent decision dealing with PFRs going to talk about the Prison Litigation Reform Act and we’re going to cover some articles if we have time by like, second chances in Alabama and Michigan and then you have to you have to look at the one on the Mississippi prisons ending the food contract now that that one is bizarre. I can’t say funny anymore because the person last week on YouTube said that nothing’s funny. But when I say funny I’m talking about ironic, but anyway, I can’t say the word. It’s not PC.

Andy 04:00
Okay, well, then let’s get going. This one came in something of a week ago or maybe even more. It’s from a new patron says hi guys, longtime listener, new supporter. Thank you. Again, that was from Sean, I think we reported maybe a week or two ago. I have a three-year review coming up to try and shorten a five-year probation period for misdemeanor convictions. I’ve been told by two POs that they are required to recommend the completion of their original five year probation period when asked by the Judge, even though I’ve been told on numerous occasions, how much of a waste of time the whole thing is. The question on my mind lately is this. If during a legal proceeding, the Judge asked the opinion of a PO if the response of recommending to stay on probation is said because they are required to say that isn’t that some form of perjury that could be argued in court? It seems like that’s a pretty important question that could have a huge impact on the outcome of the hearing. It seems that if a Judge is asking the opinion of an expert, that is the opinion and excuse me that if the opinion is forced or coerced? It’s a pretty big problem. What are your thoughts and then after we finish that I have one other final thing to bring up. But that that does sound legit, Larry that the PO should be asked, responding, how they feel about your caseload, how you respond under treatment and so forth, that they should say, whether they think you should be on their case or not. Not that they’re the default position of probation to say that you should stay on. So aren’t they lying?

Larry 05:26
No, they’re not lying. They’re, they’re telling them the truth, they’re telling the truth as they’ve been instructed to tell it. Our department policy is that we don’t recommend a particular action. So there’s no lie they are just declining to give an opinion, but remember, I don’t think I’ve done the world the way it is be for a long time. There’s the way that things should be. And there’s the way things are, in this case, the way it should be, would be a PO would give their opinion. And they would give it based on all the factors you articulated the caseload they have and how well this person has performed and following the restrictions and complying, they would do that. But in the world the way it is, they’re not likely to do that, because the last thing they want is for those cameras to come in on them. If there is a relapse, and their supervisors want it even less than they do, and the people who run the department wanted even less than all the ones previously mentioned. So therefore, they’re not going to give their opinion, but they’ve been instructed not to that would be an insubordinate act would it not?

Andy 06:44
it would be. So and then I guess the way that I’m going to present myself as legal expert, which I know I’m not, so don’t take me this way, but then your attorney would ask the specific question of has the person ever caused any problems? Have they always met their probation obligations, and you’re never asking them for anything that is beyond fact, for them to give them any room to that you’re going to leave it to the Judge is what I’m saying that this person is only there to state the facts of how you are under their charge, and then the Judge would then make the determination of whether you are released or not.

Larry 07:18
That is absolutely what does happen. In those cases where the in those instances where they have that policy, the lawyer has to be skilled at eliciting the answer that the lawyer is looking for. And then the cameras will come in on the Judge, because the prosecution is gonna take the same posture in all likelihood, when that what that issue is being heard the state’s got to be consistent with probation, they’re going to say either they oppose it, or we take no position, you can hope they take no position, but they’re going to, they’re likely going to oppose the release. And therefore, they’re going to dredge up something from the facts of your case that happened all these years ago, to say that that’s their justification for opposing it. So you’re gonna end up in a position where it’s going to be up to Judge and you’re going to a Judge is going to be thinking about Persky from time to time when they’re making these decisions.

Andy 08:09
Judge Persky was the one that was recalled by the Stanford swimmer, and he got recalled, and in California for three years ago.

Larry 08:17
Correct, but, a Judge who has to be elected. And that happens in many states, a Judge who has to be elected, is going to be very sensitive to that our state, they don’t have to be elected per se, they have to be retained after they’ve been appointed and gone through one election. And the retention threshold is 57% to either retain, and if they don’t reach that threshold, they’re not retained. But even with that system, there’s enough bad press that can really impair your retention election. So therefore, these Judges the world the way it should be, and the world the way it is there. I mean, I don’t see the perjury, but he does have a fantastic point. It really, it really makes it difficult when the when the Pos will not give an opinion about a particular offender.

Andy 09:08
Um, and we could just personal experience back to my case, seeing the Judge whatever November is what it was the prosecution, excuse me, the DA’s office. They did not say well, no, we don’t have any problem. But they were like, we’re not going to ever say that we think that this person should be off but they certainly did not come in there with any guns blazing. They came in with like little cap guns, so to speak. They did not approve it, but they were not coming out guns blazing, trying to prevent it either. That’s certainly another situation that could come up.

Larry 09:38
Absolutely. You were fortunate that they weren’t vocal. And they didn’t dredge up something in the way of facts related to the case like this, this person should not be released. But those kind of things do happen. And that’s what your lawyer supposed to tell you. When they when they take your money. They’re supposed to tell you look, here’s the way it plays out of this jurisdiction. They’re gonna come in with all guns blazing. They’re going to say this. That’s why you go have the conversation with the DA with the prosecution. You have the conversation, what are you going to do? What is your office going to say, when I filed this petition?

Andy 10:13
And to clarify a point for you, that’s you said, That’s not a conversation. I mean, the PO person the probation person, I can’t go ask the DA, hey, would think about me? Well, you can get someone else to go in there for you.

Larry 10:30
You could go do it if they would, if they would see you, they’d be unlikely to see you. But if they did, they’re not going to give you the kind of feedback that they’ll give an attorney, particularly a person who practices in that jurisdiction, they have a relationship, they’re going to be more honest and say, Look, we’re gonna we’re going to strenuously oppose this person’s release, or they’re gonna say, we’re gonna take a non-oppositional stance or whatever. That’s why you pay the attorney.

Andy 10:55
I see. I think we’re done with that. Are we done? Sure. All right, I just wanted to bring up this, Shawn also said, Hey, could you make it so that we could pay a lump sum annual payment rather than monthly, and I converted Patreon over to allow us to be able to do it, if you want to do that, I forgot how much of a discount, I think it’s a one month roughly discount if you pay in advance for a year. There you go, you could go over to Patreon and sign up for a year at a time, and you’ll get something of a one month discount in doing so. So there’s that. So there you go. Question number dos. It says Hello, we are writing to you about info regarding the new tier law in California. We wish to know what the tiers are and the requirements. Please, if you could answer this within your newsletter, or give us a copy of it in writing. Thank you and God bless PS, if you have any info on resources in California that could appeal great to thank you that certainly that that’s right up there with ACSOL, right.

Larry 12:00
That is and I’m not going to be able to be specific because there are too many offenses, California has had a registry since 1947. And they have a very, very long list. So what they did with their tier system is they took the categorical approach, and they put the offenses in a particular tier based on the offense itself. And where they went wrong, where they went wrong in many places. But where they went wrong, is the tier ones and the tier twos do not have to file a petition pursuant, if you’re actually following the federal recommendations, those people just, they just vanish after they after they’re 15 or 25 years passes. Tier one is 15 with a five-year reduction for no felony conviction or any sexual or conviction of any at sexual conviction period, then you can be released after 10 years. And also there’s a provision that you have gone through treatment at tier two is 25 years. Again, no petition is needed. The tier three, there is no petition process if you’re actually following the federal recommendation, they’re no tier petition except for adjudicated juvenile offenders. But what California did is they they put this categorical approach in they put the offenses in tiers, they require you to file petitions, even though even though it’s not required by federal recommendations, and then the process is so cumbersome, you have to serve it on the police department where you’re registered, they get 45 days or something to check your background to see if you’ve been convicted of anything, then they clear you. And the DA is next and the DA has to notify victim by make an effort to notify the victims and the victims get to say something. And then the Judge has this very vague standard that if there’s any reason practically to keep you on the registry, they can keep you on the registry, the removal will be that will be sparse, and far and few between that I say that and I get hate mail, I get criticism. But I’m telling you, it will be very difficult to get off California’s registry, they had no reason to create a petition process for tier one or tier two except to placate the victims and the prosecution and the law enforcement industrial complex. And they didn’t need to do it. And also, it’s gonna be a big business for the lawyers, there’ll be a lot of people who will not be honest, they will tell them what they want to hear that that I can file this petition, and you stand a good chance of getting off the registry. The truth of the matter is when a lawyer tells you that they do not know what chance your stamp getting off the registry because this is a new process. And they’re telling you what you want to hear. But far be it for me to actually tell you the truth. It is a very difficult process in California. And remember, if you file and you get off in California, that only relieves you of California’s registration obligation. It doesn’t do anything else for you than any other state.

Andy 14:48
And maybe, let me let me try and explain it in my own words, like just so one word answer the there is no federal registration. Right. Right. And AWA is, I guess it’s law, but it’s like they’re not holding the states accountable to it. Like if you break the law, then we’re gonna send your state to jail. You either abide by these guidelines or you don’t, and you’re compliant or not, but there’s no consequences for it other than some money. So California and any other state can go above and below the requirements, however they choose to. So you’re dealing with California.

Larry 15:29
That is That is correct. Again, folks, there’s no federal registry. And these days AWA recommendations, they’re just recommendations. If you want to have a federally compliant registry, where you get your full allocation of federal Byrne justice grants, you will have registries up to this level and you can go higher, but this is what you’ll have. If you go beyond it, and do more, that’s okay. And by California did not need to do this. First of all, they’ve said that they’re not going to attempt to call it comply with the AWA. That’s been their posture for some number of years. But then they created this cumbersome removal process because lifetime, they’re everybody’s lifetime in California, they created this removal process that will virtually remove no one.

Andy 16:17
Sad, sad, because it’s a I don’t know otherwise, how they are in a criminal justice sense, where we often talk about the Northeast Corridor there, that’s all more friendly to criminal justice. I don’t know how California is in those regards. Everyone talks about the left coast being super progressive and whatnot. But this this seems to be an outlier of California to be this way.

Larry 16:42
Oh, I don’t I don’t think so what happens is when you get these when you get a collection of liberals, in many ways, they can be as bad as a collection of conservatives, because they do things because it makes them feel good. And it made them feel good to have the victims take part in developing this removal process. The only problem is, well, there are many problems. But the most significant problem is that the victims are not interested in having a fair removal process. They’re interested in more vengeance. The victims should not be included in the removal process, period. This is a civil regulatory scheme. I would have said that at the time, but say most people that are required to register and advocates are afraid to utter those words, that is a civil regulatory scheme. The punishment is overy with. This is a civil regulatory scheme. You don’t get to participate in civil regulatory scheme. But nobody had the courage to say that.

Andy 17:36
All right. All right. I guess we’ll move on to question number three. And here we go. Says being incarcerated for picture crime, rumors and myths circulated that social media platforms, example Twitter, Facebook, YouTube block all PFRs and similar rumors are associated with Walt Disney World, Florida. Are there any legitimacy to these? Is there any legitimacy to these claims? If so, is it indiscriminate basis? Is it being? Excuse me, I’ll paraphrase is it discriminatory? For read, discriminate basis from registry databases? This is hard to read? Um, I think they are saying that, are they using the registry databases to find this information? Or is it more individualized, such as prior accounts to scrutinize and or utilize in commission of the offense? With a genuine stop?

Larry 18:30
You can you can you can stop there. Okay, I meant I meant to block that out. That was a political rant there. Alright. So the The answer is, the rumors are true. Don’t know about Disney but I’ve heard that rumor, but I have not independently verified it. But in terms of the social media platforms, those rumors are true. It’s an indiscriminate blocking of people who are required to register, there’s no individualized analysis done. That’s that’s true.

Andy 19:03
And, and should they be allowed to?

Larry 19:06
Well, that’s what that’s what the courts are gonna determine someday, but he went on to political rant about the Hunter Biden story being suppressed by the New York Times and blah, blah, blah. And I just didn’t want to go there. But in terms of that question, in terms of his question, these things are true. They do block you on Facebook, and Twitter and so forth. And I don’t know about YouTube. I don’t know that YouTube blocks PFRs.

Andy 19:30
I’ve never heard of anybody getting shut off of Google. That’s not one I’ve ever heard of. And I don’t know that I’ve ever heard of anybody being knocked off of Twitter, either. I mean, we obviously have the Registry Matters Twitter account. There’s also a Facebook one, but the Twitter account I post on there at least roughly weekly, and that’s never been shut down. But my question is, should they be allowed to and maybe that’s taking too far of a left turn of them being private companies and being allowed to let’s focus more on Disney World than You are forgive the extension here for me for just a second, you are someone that has been convicted of a sex crime. And I’m not saying that you were convicted of one that’s a child based one, but you’re going to a place that predominantly caters to children, and they are a private entity. And they probably have a sign that says we can refuse the right to admittance to anybody. So that’s their privilege to do so. I think.

Larry 20:27
Well, I wouldn’t go so far, you’d have to look at how much tax subsidies that may have gotten in the way. Okay. The more there’s big companies are very, very skilled at figuring out how to get benefits for operating businesses in an era of particular a large employer like that. But I can tell you, they’ve been under a lot of pressure. I mean, cruise operators are under a lot of pressure. Anybody that that has a recreation component that involves a lot of miners, as customers, they’re they’re under a lot of pressure to keep folks safe. And so they’re responding to public pressure. That that’s what the public is demanding that that we don’t want PFR is roaming around here trolling to victimize our children while they’re having a good time. So Disney is being a good corporate citizen and their view.

Andy 21:20
okey, dokey. Is there anything else there before we move on to the next one?

Larry 21:24
No, we can go on to number whichever one we are on?

Andy 21:28
I think we’re on number four, as you have posted the PDF, it says I have not been able to get a straight answer to my question, though. I know I’m not the only one to face this situation. I have an established longtime residence in Pennsylvania driver’s license, etc. in 2015. I was arrested while on vacation in North Carolina and ultimately convicted of something for a 2005 offense receipt of for a 2005 offense in federal in federal Connecticut sentencing court Judge a federal court sorry, federal court. If you put CT I’m gonna say Connecticut Larry. At sentencing, the Judge ordered me to register as an SOupon release, which should be not so far off. in 2017, PA declared SORNA as punishment, both state and federally through a Supreme Court decision. Since non-contact offenses such as possession receipt, were not subject to registration until 2006. My 2005 offense should be exempt from registering ex post facto in Pennsylvania, North Carolina, however, refuses to recognize the punishing effects of SORNA. My question, how will my out of state conviction of 2005 affect me as far as the registry goes? Well, I still have to register even though it’s unconstitutional in Pennsylvania, what happens if I cross state lines or move out of state? Is there ever a time where it is no longer a concern? Or do I have to stay in Pennsylvania for the rest of my life? I have seen the push by the government for a federal duty to register as a way to circumvent the states. If I register at a state first before Pennsylvania says I’m exempt. Will I then be removed from the out of state registry or while I have to maintain it for the next 10 years? I would be very grateful for any light you can shed for me on this subject. There’s a lot going on there, Larry.

Larry 23:25
Yeah. And he’s not gonna like the answers I give him. But I’m actually he says no. But he says nobody can answer the question, I can actually answer this question very succinctly. And accurately, he needs to stop thinking about Pennsylvania, Pennsylvania is only relevant if he lives there. So if he’s not choosing to live in Pennsylvania, remember, when you take your car across state lines, you comply with the registration requirements in the state where your vehicle is moved to. And this case is the vehicle is you and if you take yourself to another state, you will register according to what that state’s requirements are. Now, it could be in some instances, the state that you move to may incorporate the requirement to make it approximate what you had in the previous state example, Utah does that they say you will register for 10 years, or the amount of time required in the state where you were convicted to make sure you don’t you don’t receive a benefit for moving to Utah. So the Judge just simply apprised him of his duty to register as a sexual offender. But he gets to North Carolina, North Carolina has their own registration requirements. They have their own system in terms of the duration, they have their own removal processes. And if you’re going to live in North Carolina, you will be subject to what North Carolina requires. So I’ve answered that part of the question. If you live in North Carolina, you will comply with North Carolina law and terms of what happens if you if you move to another state. If you leave North Carolina. You will comply with the state that you move to so I’ve answered that part of the question, yep. about whether it’s unconstitutional in Pennsylvania, it was ruled unconstitutional, but they have since reconstituted a registry, that has not been ruled unconstitutional. So if you were live in PA, you might very well have to register there. His argument is that his crime of 2005 occurred prior to when they, when they did their massive amendments that caused the registry to be vulnerable. They had many they had a registry 2005 believe they had a registry since the late 90s. All states did. But if he if he can live without registration, in Pennsylvania, if that is in fact true, that is exactly what he should do, because that is the only place where he will be home free. And that still may not make him home free, because they can sense it’s a regulatory scheme. As long as it’s benign enough that it’s not deemed as punishment, they can continue to require him to register in Pennsylvania. So I’ve answered every single question that he asked, not what the answer is that he likes. But every single thing he asked, there is no federal registry. But if you cross state lines, we’re going to get to that later in the main event. If you cross state lines, you will be prosecuted because you have engaged in interstate commerce. And you have not registered in the new state. You have to present yourself for r for registration in the new state, or you’ve committed a federal offense.

Andy 26:32
Larry, we decided in chat that nobody likes your answers ever. I’m sorry that I’m pretty sure your answers are right. But and that’s why you’re here. I think I have a button that does this. Hang on. Wait, I got it.

President Franklin Roosevelt Clip from MacArthur Movie (1977) 26:46
That is why I am here.

Andy 26:48
Because that’s why you’re here. Because you’re right. And nobody likes it. And let’s just touch on that for just a minute. It’s a it’s a regulatory scheme, similar to car stuff that if you’re in California, you’re gonna have much more emissions controls than if you’re living probably in New Mexico, I’m gonna guess that you have very limited emissions control. That would be correct. Okay, and so you just, Hey, I would like to move my car and you’re moving from New Mexico to California. They’re gonna say, you got to do all the smog stuff. And you’re like, but I didn’t have to in New Mexico. Well, sorry, you’re not in New Mexico, are you? Same thing applies here that whatever North Carolina says North Carolina says that you have to go to work doing handstands? Well, those are the regulations you have to comply with. And when you move to Pennsylvania, they don’t make you do that. So then you don’t have to do it because you’re not there anymore.

Larry 27:35
That is That is correct. And I wish I could give them the different answer. I wish that we had reciprocity among the states, I wish we had more uniformity among the states. And, of course, I don’t wish we had uniformity. With the harshness to southeastern part of the country has the deep south. But I wish that it was not so confusing. And I wish that when you finished at one state, you were finished everywhere. I wish all that stuff. But that’s not the way it is.

Andy 28:02
But even again, using the car comparison, you could have a car that is considered a classic and in your state, then you don’t have to comply with certain things. You move that car to another state, and then all of a sudden, you have to come back into some kind of compliance. All of that would then still hold true, it is very akin to this kind of thing. But there’s that disabilities and restraints part of it, where the pictures on websites potentially living and work restrictions, potentially presence restrictions, internet restrictions and so forth. I mean, the people in North Carolina prior to the Packingham case, they couldn’t be on anything related to social media. This is post probation, all that stuff that you’re just a PFR on the website and you can’t be on social media. That’s how it used to be. That’s a disability and restraint.

Larry 28:52
That’s correct. And litigation, we may we may have more and more of these restrictions declared unconstitutional, but right now he’s gonna have to comply with whatever state he’s in and Pennsylvania is not in the equation unless he lives there.

Andy 29:06
Okie dokie I believe then, Mr. Larry, we are on this little piece that you put in here about Iowa. Unless I have missed something.

Larry 29:15
No, that’s where we are.

Andy 29:17
So I got I got nothing that goes along with this one. I so Iowa, first of all, what is an HF?

Larry 29:25
House file?

Andy 29:26
is this related to a house bill or Senate bill? Is that similar?

Larry 29:31
It’s the house bill that that has become law in the state of Iowa that prohibits PFRs it just was posted today on the on the listserv. It prevents people that are required to register from for conducting any any childcare, a babysitting services, you’ll find yourself in trouble with the law in Iowa now.

Andy 29:55
Alright. Okay, and like you said, just file today’s Hey, why did you bring this up?

Larry 30:02
Well, I wanted to, I think I’ve been harping about when these things pass. The governor is going to sign them. I think I harped about a governor just in the last episode about in Maryland, Governor Hogan, would sign the banishment of minors who had been convicted of offenses. You remember that one?

Andy 30:22
I do. I do. I do.

Larry 30:23
Okay, well, this is the same thing. The governor of Iowa is going to sign this bill. It’s it passed the legislature unanimously. Unanimous in the house unanimous in the Senate. And it’s been signed by this signed by the governor. And I just wanted to, to make the point when, when these things are passed unanimously, or near unanimously, with overwhelming bipartisan support, which is what you always yearn for is bipartisan support. Well, this had plenty of it, since it passed unanimously. But this is one of those things where the Democrat Party in Iowa is in a minority. And I put the put, there’s a there’s a picture there of Iowa General Assembly by party, that a look at it, you know that when the the there’s 50, senators and our 32 to 80, the Democrat Party only has 18, and you’d like it. The house, it’s 59 to 41. So it’s almost 60 40. And in the house. So explain to me, if you’re in the Democrat Party in Iowa, and there’s a proposal like this, and there’s absolutely nothing you can do to stop it nothing. Because you’re in such a minority. Explain to me why you would oppose something like this, even though you might not believe it’s good public policy? Because there’s nothing you can do about it. And all you do is you look at that up at the top half of there, where there’s only eighteen members of Democrat Party, all you do is make those 18 seats vulnerable to the attacks from the right, they’ll say, and this person doesn’t even deserve to be in the Iowa Senate. They voted pro sex offender on House Bill 710. Last year, or whatever the next election. So this is why people should not expect the minority to save you wait for this something this controversial, and there’s no political gain in it, and only a political loss. Whatever the minority party is, I don’t care if it’s the Republican Party, we can flip this over in the states for the Republicans are irrelevant. California would be an example that where the Republicans are totally irrelevant. They have such small numbers, there would be nothing that they would do or nor would there be anything they would try to do. Because it would be a wasted effort. There’s almost veto override majorities here. Not quite but almost. If but if but since it was unanimous, you don’t need to talk about a veto. But if every single if every single Democrat voted against it, you could almost still pass these with the margins that they have. So there, I just want to do a little civics lesson, you know, folks, politics, for example, or here’s an example of you let it get to the governor, the governor signed it, you have to kill this stuff before it makes it to the governor.

Andy 33:22
And killing it means what committees mean? So where you’re going?

Larry 33:27
You either have to make it in a committee where you can live with it, or you have to kill it. And people criticize me for trying to make something where I can live with it. Because I’m a sellout at that point. Well, if I was gonna, if I was going to have a choice between having every PFR in the state of Iowa, not allowed to babysit, or do any type of childcare, or narrowly tailoring something, if I concluded that this was going to pass and there was nothing I could do about it, I would feel better about if we could narrowly tailor it. So that it would only target those where there might be a legitimate concern that they shouldn’t be engaging, and childcare. But see, I would take I would take pies at my face at all sorts of criticism, because I would be a sellout at that point because I would be negotiating with the system. But which is better to negotiate and get something that’s more narrowly tailored or have this blanket ban that they have in Iowa Now you tell me.

Andy 34:23
I hang on, I got a clip for this. What are you trying to do there?

Larry 34:28
I’m trying to win the game and I would consider it a win. If I could, if I could have narrowly tailored this bill. And when the political realities, you have to deal with political reality. I would have gone to leadership and said are you are you people going to pass this? Yes, sir. We’re going to have to pass it. Okay. I want to try to narrow it a little bit and bring it within the contours of constitutionality. And I would have enough respect that they would actually listen to me and say we need to narrow this a little bit. But again, we don’t have much of an advocacy in Iowa. This is what happens with your bipartisanship, you had plenty of it here.

Andy 35:06
And we have a, we’ll have a link to the show notes of this house file. It’s a house file 710. If you want to go find it in the show notes. Anything else here before we go on to the main event,

Larry 35:19
I think I’d beat that dead horse. It was it was a civics lesson, all I was trying to do.

Andy 35:26
Ready to be a part of Registry Matters, get links at Registry Matters.co. If you need to be all discreet about it, contact them by email Registry Matters cast@gmail.com. You can call or text a ransom message to 747.227.4477. to support Registry Matters on a monthly basis, head to patreon.com slash Registry Matters. Not ready to become a patron. Give us a five-star review at Apple podcasts for Stitcher, or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting. without you. We can’t succeed. You make it possible. This one is a recent decision from the Supreme Court. Is that where you want to go? Correct.

Larry 36:21
Let’s let’s do it that way. We ran out of time we can skip some articles.

Andy 36:25
Yeah, yeah, of course. Of course. It’s a case of Alaska versus Shawn. Right. Larry, I did read all of it. It was pretty short. I can’t see what it has to PFR is except where Wright is a PFR. And he took him before the Supreme Court. It’s all about habeas corpus, sigh corpus, I won’t like trash that word that bad. It’s habeas corpus, which nobody ever wins these days. I don’t know anybody that ever files any. And I do see that the Supreme Court reversed the Ninth Circuit decision, which is a favorite thing to do. What is this case about in Haha, here it is for you one minute or less?

Larry 37:00
Well, I’m not sure I can do it in a minute or less unpack all these issues?

Andy 37:05
Well, you’re gonna have to get on that.

Larry 37:08
So Well, hopefully now you see the reason why we have the article from the New Yorker titled The destruction of defendants rights. Shaun Wright, was convicted in Alaska back in 2009 of sexual crimes. And he completed his Alaska sentence and then he decided to move to Tennessee. And he chose after arriving at Tennessee to ignore his registration obligation. And guess what he found himself being prosecuted by the feds, I just mentioned that if you’ve traveled interstate commerce, the feds convicted him or he pled a failure to comply with his registration obligation. And he received a sentence of time served plus five years of supervised release. I’m just guessing that he found supervised release to be somewhat of a bummer. And he decided to try to undo his Alaska conviction utilizing a petition for a writ of habeas corpus as the vehicle he reasoned that if his Alaska conviction could be undone in a habeas proceeding, his federal conviction for failing to register would be voided. Because the predicate conviction would no longer exist, which would mean he would have no registration obligation. So that’s what this case is about.

Andy 38:16
Alright, so I see where you’re heading, you’re itching to explain the limitations of federal habeas, particularly in view of the restrictions imposed by the anti-terrorism and effective death penalty act of 1996, commonly referred to as a AEDPA. Is that how it would be pronounced AEDPA.

Larry 38:33
That’s fine.

Andy 38:36
I’ve heard you pontificate about the harm done by AEDPA. Anti terrorism you have the acronym there wrong. And now you have this article from the New Yorker published in 2015.

Larry 38:48
Well, I did suggest the article so the audience will actually see that it’s not just me saying this that that AEDPA is bad. So I’d like to just read the quote one of the quotes from the article, this law gutted the federal writ of habeas corpus, which, which a federal court can use to order relief of someone wrongfully in prison. It is often called the Great Red because of its extraordinary power to protect the liberty of individuals. In the 1960s, the Supreme Court expanded the law of habeas corpus as a protection against unfair treatment of defendants at every stage of criminal process, from arrest interrogation through trial and sentencing, especially in cases of death sentences. This expansion was controversial and under Chief Justice William Rehnquist, by the way, appointed by President Reagan. The court later restricted the availability of the writ, but the protection that the rate gave even when it was limited was indispensable. A dramatically high percentage of individuals sentenced to death had their sentences reversed. Owing to errors by trial courts. That is a quote from the article. I encourage everyone to read that the entire article.

Andy 39:57
This is from the Ninth Circuit and I’m guessing you have a point that you would like to make about the ninth circuit’s view on AEDPA. Before we get into the actual case at hand.

Larry 40:08
Yes, I do. You’ve heard me mentioned Judge Stephen Reinhardt, who’s now deceased. And he served on Ninth Circuit for many years. And he wrote the following, and I’m going to quote again from this article. While AEDPA was misconceived at its inception, the deeply conservative Supreme Court has repeatedly interpreted in the most inflexible, unyielding manner possible, so that constitutional rulings by state courts are nearly unreviewable by the federal judiciary. The appeals courts including the Ninth Circuit, beautifully follow existing Supreme Court law, the Supreme Court often this is Judge Reinhardt. “The Supreme Court often reverses us not for failing to apply the law it has previously enunciated, but by creating new previously undeclared and Extreme Rules this that serve to limit the ability of federal courts to enforce the rights embodied in the Constitution” end of quote by Judge Reinhart.

Andy 41:06
What should Wright have done instead of filing the habeas,

Larry 41:09
By the way, this was passed in 1996, in the glory days of Newt Gingrich and the conservatives that had control of Congress. And this, this is a lingering effect. And we’re also gonna talk about the prison litigation Reform Act, which was also passed in the glory days of the 1990s. But what should he have filed instead of the habeas corpus?

Andy 41:30
Yeah.

Larry 41:32
Well first, he should have registered in Tennessee. Folks, if you have a registration obligation, and you cross state lines, you must present yourself to the new state, they may tell you that their registration obligations are not as extensive. And it could be that they will tell you that you don’t have an obligation, but you must present yourself for registration, and let them decide what to do with you. If you do not present yourself, the loop is left open on the state that you moved from, they will notify the feds, the feds have virtually unlimited resources, they will track you down, and they will prosecute you federally. But second, he should not have used section 2254, which is for those who are in state custody. He is clearly not in state custody per AEDPA. He had exhausted his Alaska sentence in its entirety. And he’s in federal custody. And he’s serving supervised release, which under the expanded definition of custody, that does count as custody, but there’s a separate section 2255 that he should have used, because he’s not in state custody.

Andy 42:49
Alright, so you’re saying he should now use he should now file a new petition using 2255? That’s what you just said?

Larry 42:56
Well, I said that what the Supreme Court said, if he does that, that’s not going to do any good, either.

Andy 43:04
But it’s never setting me up for failure.

Larry 43:07
Well, I’m just telling you the Supreme Court said if he has a vehicle to ride, it would be 2255, because he’s not in desktop for those who are in federal custody. And if he uses 2255, even though they suggested that’s the proper vehicle, that won’t work, either, because the scope of that inquiry will be limited to the validity of the Federal provision that he’s convicted under, which is traveling in interstate commerce. And what is going to happen, then the federal Judge was looking at 2255 they’re gonna say you are a person, aren’t you? Not? Yes, you can travel. You did travel across from state A to state B, did you not? Yes. And, and they say, well, the law says that you were required to register. And you didn’t. So why are we here? So that’s not gonna do any good either.

Andy 43:55
What was that? What did he do?

Larry 43:59
Well, I don’t know what, I don’t know what he really can do. But remember, he pled guilty to one count of failure to register under 18. United States Code 2050(a). And since there’s no federal registry, right, only was convicted because he traveled interstate commerce and he failed to comply with Tennessee’s registration requirements. And, I do have to say that, that this does seem like a light sentence because he was he was sentenced to time served and they’re not clear on how much time he had served. But normally you get several years and the federal system. So he got time served and he got five years of supervised release. And federal prosecutions generally move fairly rapidly. So I’m, I’m not convinced he had a whole lot of time served when he got this relatively modest sentence, but as far as I’m concerned, he’s not got a lot of options except for maybe going into state court in Alaska and try to challenge some constitutional aspect of his conviction. But he’s not going to get there in federal court.

Andy 45:03
When you talk about vehicles, can we circle back to that? We talked about this almost like from the nexus of our relationship of using the proper vehicle a writ of mandamus was a vehicle a type of vehicle, what do you mean by this term vehicle?

Larry 45:19
Well, when you when you file seeking relief, the petition that you file has to be the scope of it has to be broad enough to allow you to seek the type of relief that you are asking. If you file a petition for restitution where you are seeking possession of the property a petition for a writ of restitution is the proper vehicle. If you don’t file a petition for writ of restitution, if you just file a civil lawsuit saying that you won’t damages from the person, the court isn’t allowed to give you the writ of restitution, which is the order directing the law enforcement to go out and dispossess you. So you would not the scope of that relief would not be available. When you’re filing under, under when you’re filing a petition for habeas corpus after the 1996 amendments. They’ve the AEDPA puts severe restrictions on what type of relief can be granted, what claims are cognizable and what the standards are. And you have extreme tight time limits. And you have deference to the state courts, unless it’s clearly contrary to US Supreme Court precedent. And you have all claims are not cognizable. Like for example, His he wasn’t in custody. So he lost out simply because he was not in custody, as required by a by the anti-terrorism effectively effective death penalty, it was not in state custody. So you cannot file a petition seeking relief from a state court conviction where you’re not in custody in some form, or at least expanded custody. And he so therefore, he was not riding the correct vehicle, the correct vehicle for him to possibly seek relief is the section that permits the person in federal custody. But that’s not going to go into for either because the scope of examination is going to be so limited to whether or not he was properly convicted of the Federal offense, they’re not going to get into the Alaska conviction. I would be very surprised. So he’s gonna end up he’s gonna end up with no relief when he files the right petition. But I know I’m not supposed to say that either.

Andy 47:23
Um, we need to take a tiny little detour, there was a conversation in chat going on about using the car analogy for registration. And it certainly, it certainly ties into this case from the Supreme Court that we’re talking about. But a car is a thing that you registerer and we are people that are registering. And last time I checked, we’re not cars, you’re not a car, are you, Larry, but there’s a distinction there isn’t there. We’re not registered people.

Larry 47:51
There’s distinction in terms of what we’re registering, but the only distinction is minor. The fact is, it’s still a civil regulatory scheme, and the state that you’re going to move into whether you’re moving the car or your person, you will comply with the regulations, the regulatory scheme as exists in that state, you don’t get to bring the regulatory scheme from the state that you came from with you. And impose that on the receiving state that’s receiving you now. And it’s not the receiving formerly interstate compact. So that’s really not a good term. But you don’t get to change the rules of that state. If you don’t like the rules simply don’t go there.

Andy 48:26
Yeah, the point that I wanted to get is it’s a it’s a it’s a sexual offense register. It’s not a sex offender registry, it’s a sexual offense registry, we’re registering the offenses in the States, I real religious person attached to isn’t that don’t Haven’t we talked about that recently?

Larry 48:41
Well, now that is there’s an organization that’s trying to change that to be less offensive to say, the sexual offense registry, but try going and registering defenses and see what they say.

Andy 48:54
No, I understand that. But I thought that it was I this is what I was trying to the point I was trying to get across is that we’re registering the offenses and not the people, I realized that there’s a person associated with the registration of the offense, but the former is the offense and then the person is attached to it’s kind of like registering the car and you have a VIN number. I don’t know if that’s the right analogy.

Larry 49:15
Well, I don’t I don’t quite follow you because they’re registering you. They’re not registering the offense. They’re registering you is your DNA is your your fingerprints I take it’s your it’s your everything, but they take your photograph.

Andy 49:29
Then I’m mixing up that I get like you just said there was somebody that’s trying to change it to be a sexual offense registry that’s not what it is currently. I got it.

Larry 49:40
Well, I get I get the reason for it. Because it Yeah, you have offended it. It assumes that you’re still offending, if you say the sexual offender registry. I’m sure that that’s in the past. Hopefully that’s in the past.

Andy 49:55
The individual is also being very Debbie Downer as the term that he used. For that we’re not going to have any progress. And Brenda and I are trying to give him some level of optimism that things are moving. Maybe it’s one or two steps forward one step backwards. And you certainly have successes in your state. Not always but mostly.

Larry 50:16
Somewhat Yes.

Andy 50:18
And people around the people that do fight, I couldn’t remember the attorneys name in Colorado. I cannot call in Kelly, they just came to me and said, is that that is an attorney who won the case? Who was the one that won that case for like, four people?

Larry 50:36
That was wasn’t Colleen but her name is escaping me also.

Andy 50:42
Okay, there is another attorney over there. That is doing work. And certainly you support and help however, however, those things go about. I suppose. Is there anything else you wanted to cover on this case before we move out of that section?

Larry 50:57
Now we can go the prison litigation Reform Act.

Andy 51:02
Prison litigation Reform Act? I don’t know which one that is? Okay.

Larry 51:10
Yeah, and this is. So yeah, it’s too long for us to get into great detail about it. But what I want to make a point that this is, this happened in the same timeframe, as the restriction on habeas corpus. These are bad laws. And if you read the article from the appeal, they go into great detail tell you how difficult it is to win a lawsuit against prisons. we claim that we want to see prison conditions improve, that we want to see reforms in prison conditions. If you truly do mean that, then you will work to try to repeal the prison litigation Reform Act, because it’s very difficult now that the volume of cases has plummeted since 1996. And the successful cases has even plummeted beyond that. And prisons conditions, I think most would say have not gotten better since 1996. So if you if you truly do want reform, this is bad public policy that was put through in the 90s. That needs to be revisited, just like the anti terrorism and effective death penalty Act, which no one could vote against. Very few did vote against it. Because how could you oppose this was this was driven by the bombing in Oklahoma City by McVeigh. And they didn’t have a death penalty that bothered them to know that they didn’t have a death penalty. An effective death penalty at the federal level. So it was hijacked during the process to include the restriction on habeas corpus, because the Judges were saying they were being inundated with all these state claims. And the conservatives said that we have perpetual litigation. And our state courts are not being respected for the hard work that they do. So that provision was added into it. And those were all bad laws. And we need to work on changing those laws.

Andy 53:05
And this article that we’re talking about came from the AP second chance, Alabama approves expungement bill, but it’s only for low level crimes, to have their records wiped clean. Just want to make sure people knew what we were talking about and where we were going with that.

Larry 53:21
We just we’re just we’re just not moving to Alabama. We were talking about the prison litigation Reform Act previously, but now we’re moving to the Alabama expungement bill.

Andy 53:30
Well, then I was talking about the wrong one. All right. Well, then let’s talk about the second chance Alabama versus expungement bill. Tell us this is about Alabama, moving low level crime that apply and have their records wiped clean, and Governor Kay Ivey has signed it, Why’d you bring this one up?

Larry 53:49
It’s positive news. And we have so little of it that I thought it would be worthwhile is certainly a very narrow, but it’s a step. And it’s a positive step, unfortunately. And guess what? If you read the first paragraph, notice the third paragraph down. You see that Alabama, decided to exclude PFRs, violent crime, sex offenses, and major traffic convictions will not be eligible for expungement.

Andy 54:16
So, of course, of course,

Larry 54:19
So but I would encourage people in Alabama, the names are here, of the of the drivers behind this bill. Senator Linda Coleman from Madison, and Representative Chris England, from Tuscaloosa. Those were the key drivers of this bill, I have conversations with them and find out if they feel like that they can come back and expand upon it. It said the bill passed the Senate without a dissenting vote. The house of representatives approved the measure on a 57-38 vote. So it was not nearly as strong and the house and I didn’t dig into what who the 37 were that opposed it but Don’t let this be the end of it. This is the first step.

Andy 55:06
Right. And then we will move over to an article from Mississippi says Mississippi prisons end contract with controversial food provider from CBS News. A company of a company accused of serving rotten and spoiled meals to inmates a Mississippi is no longer providing food and the state’s correctional facilities. Larry, this is an amazing victory that people aren’t going to be eating rotten food. That’s amazing.

Larry 55:33
So when the state began a new three year deal with a company Merchants food service on March 1 to provide meals to 15 prisons. But But I can’t believe from the description of this. This was pretty bad stuff that they were serving. But remember.

Andy 55:53
We’ve talked about stuff like this more than a single or double time that this is just this has got to be probably the second or third largest resource consumer for a prison budget is food and any place that they could scrounge a couple bucks away, boys will keep the food, maybe we’ll keep the cooler a little bit warmer, so we can save some money on the electricity bill.

Larry 56:17
So well, Mississippi has certainly had its share of notoriety for bad prison conditions, and violence. And I think the governor blamed it on cell phones. Remember we talked about that? A year ago or so about he said that the problem was cell phones. You remember that?

Andy 56:35
Yes, Parchman.

Larry 56:36
Yep. So. But, again, folks, this reflects back really to us, the people, we the people, if you made it clear, to the people you elect to represent you in Jackson, that you wanted your inmates treated humanely, that you wanted them to have good food, and you want them to have rehabilitation services, if you made that clear. That’s the way it would be. But you do just the opposite. When you look at the mirror each morning, remember it’s you that says that you don’t care what they have to suffer that they should have thought about that when they did their crime, that I’m out here working, paying taxes, killing myself, and these people in prison are living better than I do. They have to have three Hots and a cot they have free health care. Remember, these politicians that are that are representing you are reflecting you.

Andy 57:33
yeah, I’m with you on that. We could do better if we wanted to. But we have decided not to.

Larry 57:39
Try running for I think I said last episode try running for, for state office, on a platform if you want to make prisons better and tell me tell me how that goes for you.

Andy 57:51
All right. And then from the Detroit Free Press, the Supreme Court is wrong. Even children who killed don’t deserve life without parole. These sentences ignore brain research and are tainted by racial bias. Until last week’s opinion, the court was headed towards closing the door on them. Geez, Larry, why didn’t you put this in here? Well,

Larry 58:12
I think it’s a good thing to follow up on last week’s episode, because I reminded folks that that the Supreme Court had strayed from previous precedent and said that this conservative court 6-3 with all the conservatives being in lockstep said that, that previously the court had it wrong when they said juvenile life without parole was unconstitutional without an incorrigibility finding. Well, this is an opinion of the Detroit newspaper, free press that says that the Supreme Court should legislate from the bench. I’m not expressing an opinion, folks. I’m just asking you. Do you want the Supreme Court to come in and save you from this? Or do you want the state of Mississippi I believe it was I think it was Mississippi, because that they were overturning the precedent that had been previous from Alabama. Do you want the Supreme Court to come save you from yourself? Or do you want to do the right thing and change the law so that people in Mississippi a juveniles will not be subject to life sentences without parole? whose responsibility is it? I’m posing the question. I’m not expressing a view at this point.

Andy 59:28
Should they email crackpot at Registry Matters? May I take a stab?

Larry Speaker 59:35
Sure.

Andy 59:36
We would want them to be handled as close to the people as we want to, unless we deem it to be so repugnant, that we want it to be that way for the entire country. And that’s where either federal legislation or something like this gets stepped in to with the Supreme Court. But we would want as many laws to be handled as local as possible because that would be the governor and your city council. Whatever your state, your local representatives, those were the ones that know the local issues and know the community and the attitudes of the peoples.

Larry 1:00:10
Well, now, let’s just reflect on some of those Scalia clips. The something simply because it’s repugnant magically become unconstitutional.

Andy 1:00:20
Clearly not.

Larry 1:00:22
Okay, well repugnant, then it’s not just proper standard. If you are following the Scalia model, he says, you know, that, that the people certainly are not required to impose the death penalty, and not the death penalty, life without parole. And he said the same thing about the death penalty, they’re not required to impose the death penalty. They’re choosing to impose the death penalty. He says that there was nothing in the framer’s mind about having a prohibition about the death penalty against using death penalty. Same thing about this. Nobody, in the constitutional making process ever thought about putting limitations on what type of sentences could be handed down by the people, people’s representatives. So do you want to invent this and the Constitution? And have the court decide what the proper punishment levels can be? Or do you want your elected officials which is it? And like I say, I’m posing the question. So don’t write me say that let Larry said this, because I’m only asking. I’m trying to promote intellectual honesty, because it seems like we’d like the court to step in and do things we agree with. And we have what we can, well, we can’t win it through the legislative process, then we want judicial intervention. Right? And then we get mad about we get mad about judicial intervention, if they intervene in a way inconsistent with what our beliefs So which is it folks, do you want the courts to save you or do you want to save yourselves.

Andy 1:01:45
We need them to be super legislators when we need them to be super legislators otherwise stand back?

Larry 1:01:51
I see.

Andy 1:01:54
Alright, one last step. article and we are out of here. This is Westmoreland County prison to pay inmates at prison to get Coronavirus vaccine. Oh, sweet, they’re gonna get some kind of little bonus like 25 cents or something. They’re gonna get $25 in commissary credit, if they received the vaccine, that’s amazing.

Larry 1:02:12
It is and I’m not sure where that county is. But being that you know, the state inside out what county what county seat it was.

Andy 1:02:20
Hang on. Westmoreland. County PA. Yeah, I’m using Google as we speak. To find out where it is someone in chat if you know really quick, tell me where it is. Oh, God, Google be faster, please. It is a like just east of Pittsburgh, it looks like.

Larry 1:02:41
so well. I put it in there simply because I think it’s novel. I think it’s creative. And I like it. You would have to think that since there’s hesitancy on the street people, including me, I’ve had some hesitancy that’s my brother had the reactions he did to the to the Maderno shots. I’ve had some hesitancy and this modest amount of money. If it overcomes hesitancy and makes the facility safer for the inmates as well as the staff, I think it’s very creative. $25 isn’t a whole lot of money. And if you can push someone in the right direction by that isn’t that a great thing?

Andy 1:03:19
Sure. 25 bucks is it’s not certainly it’s not a lot of commissary money, because I bet your soups are like 75 cents by now. But it would I would do it in a heartbeat. I got my second shot a couple days ago. I am pleased.

Larry 1:03:34
So I would bet a lot of inmates that are on the fence would go in favor of the $25. And then we achieve the herd immunity at least within the institution. Yeah. So I think it’s a great idea. You folks that are listening to us and reading our transcripts on Westmoreland County tell us what $25 will do for you.

Andy 1:03:54
I imagine we get pretty much anybody because the way JPay is as far as whatever the organizations are Securus that is running commentary for everybody. It’s got to be 75 cents to see if it doesn’t go that far. But it’s not zero either. So I would do it, I definitely would do it. So there we have finished up with everything.

Larry 1:04:15
Yeah, we got some acknowledgement stuff.

Andy 1:04:18
We do we do. We had two subscribers actually directly to the transcript service. And the first one was Shawn, different Shawn that we covered earlier. And he sent in a letter and said we’ll get to we’ll get to that letter in a future episode. And then also Douglas. Douglas said, I want to thank you people for sending me a transcript from Registry Matters 171 and everyone in chat, you have to take a quick shot because we said you people again.

Larry 1:04:45
So All righty, well, we’ll see our transcript our we’re going to grow this transcript distribution is going to soon surpass every prison publication.

Andy 1:04:58
That would be Oh man, we could be bigger than Prison policy prison legal news, excuse me prison legal news that I’m planning.

Larry 1:05:04
I believe it’s going to happen within three years.

Andy 1:05:08
That’s a pretty lofty expectation there, but I’m up for the challenge. With that, we will shut it down, Larry. And I think everyone can go find all of the necessary the pertinent information over at Registry Matters.co. You’ll find links to everything if you want to sign up on Patreon that’s patreon.com slash Registry Matters. And if there’s nothing else, Larry, I will bid you a happy, wonderful, good night in the rest of your weekend and I will talk to you soon.

Larry 1:05:35
Thanks, and I appreciate being here again.

Andy 1:05:39
Take care, buddy. Good night.

Unknown Speaker 1:05:42
You’ve been listening to FYP


Transcript of RM174: Convicted Without A Trial Is A Dangerous Road

Andy 00:00
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts fyp. Recording live from fyp Studios, east and west. This is Episode 174 of registry matters. Larry, How are you this Saturday night?

Larry 00:16
Fantastic. I am still alive despite someone’s best efforts.

Andy 00:21
Oh, best efforts. Do you want to like take, I don’t know, 3, 4, 7 hours to tell us what has happened?

Larry 00:29
Well, I was I was on the wrong end of a rear end collision. Well, I guess you’re always on the wrong endeavor and collision. But I was on the receiving end of some blunt force trauma with a vehicle that as far as I can tell, that didn’t try to apply to braking on a four lane arterial. And it was very, very discombobulating to say the least.

Andy 00:51
I don’t know the answer. I heard you talking just before pre show with a friend of yours. Do antilock brakes? Do they still leave skid marks? And I’m almost inclined to say no, because the computer as soon as it detects wheel slippage, it’ll stop applying the brakes. I don’t know the answer that question. But I mean, it’s an interesting question, how would they then get out the little thing with the wheel and then go track how long the skid marks are to figure out how fast they were going?

Larry 01:17
I think they leave a intermittent skids. I think that they lock for just a brief second, and then there’s like these knotch blocks, I think so there would still be some evidence of a skid, but it’s not the continuous skid that causes the person to swerve, that causes a person to swerve. That was used to teach you to steer into the skid. But nobody could do that. So the anti lock brakes still locked, but they’re there. They’re like, it’s as quickly locking and releasing. So there would be some evidence. But but i don’t i don’t think he right, because the the impact was significant. As you can see from that picture I sent you I was lovely.

Andy 01:51
Yes, your car has a very big thing. And the other thing to note about that is your car doesn’t have your rear end doesn’t have crumple zone. So if you get dinged, the way you got dinged, you got dinged pretty hard.

Larry 02:03
Yeah, if the if the if there’s been any passengers in the backseat, I wonder if it would have done done them any good.

Andy 02:12
Yeah, who knows? Who knows. And then you also kind of dinged your face a little bit too. So I’m sure that you’re even more attractive now than used to be?

Larry 02:19
Well, they, I was, it was in a four lane but the four lane had a lane closure, which is what caused the accident, the guy was not familiar with the lane closure. And he was typically going to be driving in excess of the 45 mile an hour speed limit, which people go 55-60 miles an hour down the street. And what happened was, he wasn’t paying any attention probably on his cell phone doing the texting thing, you know that that is the most efficient form of communication ever deviced, rather than using voice. And he probably just did not see until it was too late when he had the impact is what I’m guessing happened. But it was it was certainly an experience. This is the second time in my life that I’ve had a rear end collision. They’re they’re wonderful. You should try Oh, yeah. Oh, no, I’ve

Andy 03:09
I got dinged 20 years ago, actually twice, like twice very close distance apart, maybe a year apart. Two different vehicles, two different states, whatnot. But Alright, so enough of that, uh, well, what Well, well, I

Larry 03:21
did, I did collide with a vehicle in front of me because the way the lane closure, it will stop and go traffic. So he pushed me into the vehicle. So I got the the impact from behind, and then I got the impact from hitting. So I did hit the steering wheel with my face and with my chin. And it was not, it was not dramatic damage. But there was some damage and it’s very uncomfortable. There was a swollen lip, and there’s, there’s issues all over my body because of it. But anyway, they didn’t get rid of me.

Andy 03:50
Damn it, that’s like, I’m gonna have to possibly put a stop payment on that check. Alright, well, all right, tell us what’s going on tonight.

Larry 03:58
Oh, we’ve got a discombobulated program tonight with several, several directions, we’re going to be reviewing some letters from mostly behind the walls of prison. And we’ve got some articles. We haven’t done articles for a while. Hopefully we can go through all them. And then we have the George Floyd conviction and some observations and some old clips about criminal justice. The way elected officials were looking at it back in the 90s. And the way those elected officials are looking at today and we have Supreme Court an important ruling not necessarily on our issue, but in terms of explaining where the Supreme Court is, and where they’re likely to be for the foreseeable future in terms of criminal justice matters.

Andy 04:43
Excellent. Well, then let’s start with this. I think this came over discord from one of our super longtime patrons, if I recall, right, it’s Mike. He’s had a question for Larry. That’s you. I’ve seen a lot of interviews where people are saying that people should be convicted without a trial. This was mainly interviews with people about the trial in Minnesota, of course, do you think when people are talking about this, we’re going down a very dangerous road, especially when a member of Congress is saying nothing other than conviction on all counts is acceptable. I had just a tiny little blurb to put in there. When he posted this up, that was like, of course, we’re going down a dangerous path that we are, you’re getting trial by fire in the media and whatnot, you’re guilty before you go anywhere before even like indicted, you’re you’re almost convicted of this. And yes, why not? Why do we have the Confrontation Clause; due process? Why is any that even there if if we can just convict somebody long before we go to trial?

Larry 05:46
That’s the unfortunate thing about this particular trial in Minneapolis. There were so many already questionable decisions. And then what he’s talking about congressman Maxine Waters about her comments. I wish she hadn’t made the comments. And I said, so I think even to you, but I’ve said yes, your comment. I wish I wish that she hadn’t have done that. The judge said the same thing, the presiding judge did. But I just hope that people when they when they feel that way, that they will also be aware that there was a whole lot more comments from the conservative side, about what a travesty of justice this is. And how that the police officer shouldn’t have been charged. And that all this is his dog and pony show to appease the angry mob and so forth. And so let’s just be fair, in our criticism, I have no problem saying I find what congressman waters said to be inappropriate. But she wasn’t the only one. And, and there was plenty of rhetoric, some very, very harsh rhetoric coming from the other side, that’s still coming from the conservative side. But to the question about, I’m all about due process. I’m concerned that the change of venue wasn’t granted. I’m not sure that anybody believes that he got a fair trial in Hennepin County, Minnesota with all the publicity. The question is, could he have gotten a fair trial anywhere in Minnesota, and you want, you want these people to get a fair trial, you want them to get a fair trial, because you want the conviction to stand. You don’t want it to be overturned, you don’t want to risk the person being released on an appeal board, for some egregious error, you want the conviction to be solidly obtained, where it will be withheld. Ups upheld, not withheld, upheld on appeal. And a good prosecutor would want the very best trial that could be had. And I’m concerned about that mistake of not granting the change of venue that will be one of the many appeals issues that will be raised by the defendant, that he’s not defended anymore, the convict.

Andy 07:50
Um, and do you have any appeal? I think we’ve talked about, I’m curious to know what your opinion is of the range of sentencing that he could get whether will they run them concurrent consecutive, he has up to 40 years that he could serve? Do you have an opinion,

Larry 08:06
the way I read the Minnesota news accounts and and you take these accounts for accuracy for what they’re worth, it seems like that the under Minnesota law that it all consolidates into the highest offense, so stacking them does not appear to be an option in Minnesota. So the 40 years looks like the top limit, because that’s what the highest charge carries. And everything else would be subsumed into that 40 years. That’s the way it looks like the news media has, has covered it.

Andy 08:36
I swear it was the the two second degrees are up to 15 years, and then the other one has a maximum of so if we did (2) 15s and another 10 That’s That’s my understanding could be totally wrong. That’s just what I was gonna processing out of the whole thing.

Larry 08:52
So but but alphas understanding that the harshest charge carried 40 year Max, but but but in a way that the way I’m reading the accounts is will will be corrected by Minnesota listener. We’ve got we’ve got several there, but but the the highest charge, the lower charges are subsumed into the higher charge and they can’t stack them.

Andy 09:11
Okay. All right. I guess we will jump on these letters from the peoples in the prisons and whatnot. Right.

Larry 09:19
Let’s do it.

Andy 09:20
All right. And I think you wanted me to skip down to where, Hey, I got a quick question or two. I’m under the old law pre seven second legislation pre September 96. Did I say that right?

Larry 09:32
72nd. legislature?

Andy 09:36
Okay. If I wasn’t told about registration in court when I took probation 26 years ago, can they impose it after the fact.

Also, I purchased a packet on how to legally remove yourself from the registry. It was pretty interesting. He basically told me that I could tell them I am moving out of state to remove me from the registry. Then just never register anywhere else declaring myself homeless, this was info through the Safe Streets Foundation, and then they list the URL prisons foundation.org would like to know if it’s legit. And if it is, just want to share. Anyway, guys, thanks, sincerely. Have you ever heard of a packet like that?

Larry 10:18
I have indeed invested that question first for this person, you will find yourself serving a very long period of jail time, if you follow that advice. So first of all, if you went in and tell them you were moving out of state, they wouldn’t just simply deregister you, what they would do is they would take as much information as you can provide them on where you’re going. And they would notify that jurisdiction to expect you. That would also generate a report to the federal Marshal service that looks for an interstate movement of persons forced to register. So if you did not show up in the state, where you told them you were going, that would the loop would not be closed. So the state that you were registering in, it would still carry on its registry, you would be non compliant. The state that you were moving to, would never register you because you didn’t show up. And the United States Marshal services with all the vast resources they have would begin searching for you. Now, the part that I don’t know the answer to conclusively is if they found you in the state that you never left, if they would have a federal jurisdictional hook. And I don’t know that they would. But they’ve been expanding the federal jurisdictional hook with with some unfortunate bad decisions. But at the very minimum, I can guarantee you this, if you did not leave the state that you told them, You were leaving, and you did not report in that state where you were if you say you had a 90 day registration obligation, and you simply tell them you were moving from from that state to state B, and you didn’t get yourself registered in state B. and then and then the marshal found you in state a, they would, at the very minimum, the state would prosecute you under its laws, because you misrepresented the situation. And you would find yourself in that state’s prison system, but you possibly find yourself in a federal prison cell. So do not follow that advice. Unless you enjoy serving present time.

Andy 12:20
Jen in chat says she thinks she heard of someone in Florida get in trouble for saying they were moving. And then not that would that maybe that’s maybe that’s a Florida thing. But I can tell

Larry 12:31
no, it’s it’s it’s false information. You’re sure that you’re giving you’re giving, you’re giving them truthful information. And now, if circumstances that could be circumstances with your best of intentions could go with a go wrong, and you don’t move. But But when you go in and tell them you’re moving that starts a whole machinery of machinations procedures in place, and if you don’t leave, you’re going to find yourself in a world of hurt. Go ahead, try that advice if you enjoy prison time.

Andy 13:06
Let’s see. All right, then. And then the other question there.

Larry 13:11
The first part is long as the state that you’re in, has continuously upheld the registry as being a civil regulatory scheme, which, in this particular writers cases, Texas, and that is exactly what they have done. They have not been able to prove that the Texas registry is punitive. They can impose a civil regulatory scheme on you, even though it didn’t exist at the time. So the answer to that question is very sadly, yes. And what confuses people is they say you can’t have any ex post facto laws, you can have ex post facto laws, as long as they’re not…. that analysis only applies to criminal statutes. You can pass a civil action, and you can apply it retroactively.

Andy 14:04
That would be the case for pretty much everybody. They took their their plea deal. They went to court whatever, some X number of years ago, before there was a registry in their state, and then they fire up the registry in that state. And they they drag you into it. And why is that the case? Larry?

Larry 14:20
What because it’s a civil regulatory?

Andy 14:23
Right. I really hate that term. But I understand significantly better with when you put it that way.

Larry 14:30
Well, she she’s on the right track. If the registry has evolved in Texas, and it can be proven to the satisfaction of Texas or federal courts. Now, I can tell you the federal courts, Texas is in the Fifth Circuit and the Fifth Circuit has proven itself to be very hostile towards towards the two challenges related to registration. You can look at how they ruled in the city of Lewisville case that were about 95% of Lewisville was off limits. So they Now that that was not unconstitutional, so in federal courts, you’re not gonna get a lot of traction. And state courts, Texas, courts tend to be very conservative. So I do not imagine it’s going to be easy to gain traction. And Texas courts challenging us. So it’s unfortunately I wish I could give her wonderful news she might want to consider when she gets out of prison, leaving that state there might be states where that she could live without really old offense and not have to register. And we don’t analyze those cases here on on Registry Matters. But there are there are states where that might be the age of the of the offense, the contract is sold, it might not trigger registration obligation.

Andy 15:40
Very well. Alright, then let’s move over to the second letter from an individual it says I am currently incarcerated at SCI Mercer. I don’t know whether it’s South Carolina Institute, Mercer maybe Is that fair?

Larry 15:54
Nope. It’s in Pennsylvania that state correctional Institute they came up that way a CI in the city.

Andy 15:59
Okay, well, no one would ever know what that is. All right. ”
I was recently shown your magazine and I was amazed by some of the articles that were in there. So I decided to, to write to you myself. I am writing to to ask for your help with this subject. I am a convicted sex offender. PFR and I have been in the system for nearly six months now. When I was transferred here to Mercer from camphill. When I was transferred, I have noticed a lot of things that I thought was wrong. Here at Mercer, they really have nothing here to better ourselves to make us better people once we get pearled there is absolutely no school except for GED. There are no traders here. Like there is an other correctional facilities prior to the pandemic. There wasn’t even tracks here that what that says think so. tracing stat traits, traits, does that say traits or traits? The prison staff have no idea why either. So my question is, how are we supposed to better ourselves if they have nothing to help? Also, I have been speaking to several inmates who are close to being paroled. And their response is this prison likes to give ?hit? for no reason at all, especially if you’re a sex offender. I truly feel that it is not fair or right for probation parole to do this, because if a person does everything that the prison DLC recommends, and completes any and all classes and groups, then that person should be paroled at their minimum time. But in this prison, it’s not that way. the parole board finds any little thing to keep a person behind bars, people are getting tired of the parole board’s crap and max out which not be especially if the judge says parole at minimum, could you help us bring awareness to the subject by printing this letter in your magazine, this would be a huge help.”
Larry, I can like personally attested this one in my state where there were no programs, and they dangled a roll in my face twice. And like for no reason I never got in trouble. I’ve always had a detail etc. And somehow I still made it all the way to the end of my second.

Larry 18:01
Half really liked this question because I get to do a little bit of explaining political realities. And although I have an immense amount of sympathy for people who are in that position, it demonstrates the total lack of understanding by most people about what all the things that state government does, and all the competing things that are needing state funding. And prisons ranked fairly low on most states priorities, when you look at all the things that state governments do. Because as a general rule, prisoners don’t vote, as a general rule, they’re either not eligible or they or they’re, they don’t vote, even if they are eligible while they’re in prison. And when you go out on the campaign stump, when you say, Well, I’ll tell you what I’m gonna do. If I’m elected to the state health representatives, I can assure you of this, we’re going to have some of the best rehabilitation programs in the whole entire United States. We’re going to pump money into it like we’ve never been done before. Just vote for me. And I’d like to see a show of hands of how many people or just raw applause or something to signify how you feel about that there would be no show of hands or no applause. Therefore finding the funding, but all the different things that the state has to do in Pennsylvania, they have to find some level of education and I don’t know the split between state and local funding. I don’t know enough about how Pennsylvania is governed, but they have roads to take care of. They have all sorts of obligations with education, with environment, with your neighbor that this the state government does that there’s things that you don’t even understand…When I look at the state budget of our tiny state here, and I’ll look at all the all the agencies have what store economy, they run employment, unemployment

insurance. They have, they have things to do with with workplace safety inspections, we have we just have all Want to know with agencies that you’ve never heard of that that do work. And they, they are a little bit higher on the priority than prisons. Prisons when they when they present our budgets. That’s the thing that gets the funding as security, we need staff, we need staff for security. And they start going down on the prioritization and programming falls way down. And when you have to balance your budgets, which most states have to do, doing beyond the bare minimum of what you have to do, to keep a prison constitutionally compliant is just not politically feasible. Therefore, his issue is that there’s just not funding for these programs, which means he’s in a catch 22, the parole board telling him, if you if you better yourself, will let you out at your minimum. And he can’t better himself, because there’s nothing at that present except for GED, which if he’s already got his high school diploma that’s of no use. So he’s in a catch 22.

Andy 21:05
I gotta say, though, isn’t this something of an investment if we pick a number 40 grand a year, I know varies, but 40 grand a year to incarcerate someone if they spend x 1000 bucks to train someone? And that helps them not return? Isn’t that a kicking the can down the road in a positive sense of return on investment? Or is that am I just am I not in reality zone?

Larry 21:29
You’re not in reality zone, because that’s that’s that liberal, wishful thinking. You can’t quantify those things. We can quantify right now how many people we’ve got in prison, how much security we need, how many staff positions we have, if we bring in a bureaucracy of rehabilitation services, because they might not come back. That’s all well and good. But they’re here now. And I’ve got to fund them. I’ve got to feed them, I’ve got to do a medical care. I’ve got to keep the institution secure. And I’ve got to do all this stuff now with the funding I have. And but you go to the legislature and say, and by the way, you need to increase our budget by another 25%. So we can do real rehabilitation, so that we in the out years, we’ll have fewer people here. That’s a really tough sell.

Andy 22:18
All right. Then, let’s see here. This one comes. Do you want this is the deer Assemblywoman Timberlake. That’s not what you want, where we’re going next visit? That’s the letter from this, I think,

Larry 22:34
No, it’s the top page of that one.

Andy 22:38
To find out, I understand, I got you I got you. I’m sorry. I scroll down.
“dear NARSOL, the New Jersey Legislature is considering lowering the provision for lowering the provisions of the no early release law which calls for certain sentences to be served at 85% to be reduced to 65%. However, as is the usual case, PFRs are excluded while all others are included. Once again, it just shows you that the state still does not want to allow these offenders early release or reduction of sentence to be served. Where I am housed is a treatment facility for PFRs. Yet others have more serious offense and who do not get who do not get as thorough treatment, as sex offenders can be considered for early release early release if the bill is approved. Many of us here have sent letters to our legislative representatives requesting that we be included for the new provisions. The discrimination of an offender class, as usual, only continues, I thought I would share this with your organization, not because I’m a member, but also because of the hard work you all do on our behalf. I hope that the info is helpful. As always, thanks for all the work in the sport and rest assured you will always have my support sincerely.”

Larry 23:50
But this one this one I like because I mean, we all know that every time there’s something that’s reform, that PFR is are largely excluded, either totally or significantly, as it was the first step, step back at the federal level, New Jersey is rather unique, it’s under democratic control. But there are still republicans present in the state. And those Northeastern republicans tend to be a little more progressive. Believe it or not, there’s still some progressive left. When you when you’re on that Northeast Corridor there. There used to be a very hotbed of liberal, moderate Republicans. And there’s still a few of them there. So if it were me and I were trying to figure out a strategy, I would go to the republicans and say, Hey, no, try to insert an amendment in this democrat legislation. Because if we’re really going to save money, we need to stop excluding so many people and see if you can get republican by-in and then you’ve got the Democrat Party on the defensive if if they’re trying to narrow this Because they’re pretending they want to save money that this is a cost containment measure. So you get to appeal to the republicans to say, Hey, here’s an opportunity, we can save even more money. And I guarantee you, they’ll democrats gonna vilify them for wanting, I can’t guarantee it, but I can almost assure you that Democrats gonna vilify you. And let’s try to save even more money by not having this blanket exclusion in here. That would be my strategy, if I were in New Jersey to see if you could get some Republican support, because they just might materialize. I mean, it wasn’t that long ago, they were governed by Chris Christie. And by comparing him to a southern governor, he was pretty moderate. And you look at Hogan, which is not a Northeastern state of Maryland, he’s fairly moderate. You can’t get elected and these states if you’re if you’re like an Alabama Republican, you something like that could ever get elected in New Jersey in New Jersey. I mean, Kay, what’s her name in Alabama? I forget her last name, but but she could never get elected.

Andy 25:57
That’s like Hutchens, is it?

Larry 26:00
Well, if you get the point, you know that that person wouldn’t be elected in New Jersey? And K, Ivey think her name is Yep.

Andy 26:07
Yes. That’s what I will says In chat. Yes, Ivey.

Larry 26:11
So yeah, but I would I would approach the republicans and to try that he’s in a difficult position, because it is in prison. But he is already writing letters. If you see he wrote to an assembly person, Assemblywoman Brittany, Timberlake. And I would I would continue that effort. And I don’t think it’s completely without logic. That’s what I would do.

Andy 26:33
Oh, okay. Do you do you think that people behind the walls, writing to Representatives has minimal, anything, any impact?

Larry 26:44
It would be it would be minimal, but they have. If you have enough people, and you can make cogent arguments, that letter is a little bit on the long side. But if you can make cogent arguments to sucintly. I mean, I do read the letters that come to this office, I can’t say that the senator reads all of them, but they do get read from prisoners, every single one of them gets read. I go out of my way to make sure they get read.

Andy 27:07
And perhaps if something really is something special, then it gets passed along perhaps. That’s correct. Sure. All right. And then we will move on to the next one. And this will the one you’re going to read because this one is special.

Larry 27:23
Because this one’s number five, right? Yeah,

Andy 27:25
I happened to be the subject. God, I can’t This is wow. hard to read. That’s all I can say.

Larry 27:32
Okay, this is this is one I put in here because it goes to the notion of the truth will set you free.
“I happen to be subject to one. Last my way through this.”

Andy 27:45
Alright, we’ll go ahead and it’ll be great for the transcription is to figure out right will

Larry 27:50
“happen to be subject and one of the issues that your organization is looking to change. Specifically, I’m serving a lifetime special parole for conviction of Iowa code 709.4, essentially statutory rape. This is due to me picking up an underage miner at a bar, who also happened to be drinking with her parents. When I found out her real age, I reported to the police and basically got screwed. That was in 2008. I discharged class C felon in 2015. I was placed on lifetime parole. And since that time, I have been out of prison or maybe 60 months total. That’s not very much since 2015. But I have violated my parole three times on technical, whatever he says, on technical violations that weren’t criminal. I am I am one of the violation. Police even testified I saved a woman’s life when I intervened and physically”

Andy 29:06
subdued her boyfriend he visits he she physically subdued her boyfriend who was something “stabbing” her stabbing oh crap

Larry 29:19
“i was i was i was found to have violated curfew even though my next door neighbor and sent back now you have to admit that That’s funny”.

Andy 29:32
That’s that’s terrible he was next door at the neighbor’s house and then I’ve always wanted like for real Larry like when it says be home by your curfew? Can you be in the backyard? Suppose you have like a 10 acre property can you be in the yard if you have to be in front of the TV in the on the couch… like alright. Any more to that you want to read and then discuss or that the end of it? Well?

Larry 29:54
Well, what we don’t know is if he if he was already there being entertained or if he went there To render aid, see that the letters not written at a way that we have that information. But even, even regardless, it doesn’t take much to violate PFR supervision. In most states, it’s very rigid supervision. And the attorneys often don’t tell them how rigid the supervision is going to be. And of course, if you’re in prison, you don’t care how rigid is going to be because you went out of prison. But if you have, if you’re negotiating a plea, that might put you on probation without going to prison. The attorneys never tell you how

bad it’s going to be, because you never would take the plea if you knew. But, but anyway, this is one of those I just put in there because the devil got into me, I wanted to people say that the truth will set you free. If, if this is an example of telling the truth setting you free, then I don’t know what to say. Because if he self disclose what happened when he found that the girl was underage, and then they locked him up for it, we could clearly say that the truth did not set him free.

Andy 30:59
Will legit Larry, there’s there’s somebody in chat here tonight that I’ve had this conversation with. And he is a very religious person. And he wants to make sure that he is following his guidelines. And he wants to make sure he’s following probation if he doesn’t want to lie. And he is stuck between a rock and a hard place that if you if you do step out of line, and then they go, Hey, we need you to take this polygraph. And anything you say, will be held against you, then you’re forced to lie. If you happen to be home at a curfew two minutes past when the curfew was done, you have to then lie convincingly, which is against your rules.

Larry 31:33
Yep. So But yeah, I don’t like what he’s spending more time on it, but doesn’t always say set you free.

Andy 31:41
All right. Ready to be a part of registry matters, get links at registry matters.co defeating need to be all discreet about it, contact them by email, registry matters. cast@gmail.com you can call or text a ransom message 27472274477 want to support registry matters on a monthly basis, I head to patreon.com slash registry matters. Not ready to become a patron. Give a five star review at Apple podcasts or Stitcher or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting. Without you, we can’t succeed. You make it possible.

We will then bounce down to these clips and we will come back and circle around to articles. Is that is that fair by you?

Larry 32:39
Sounds good. So we’re gonna we’re gonna do the clips with with starting with Which one?

Andy 32:44
The crucial reason? I think

Larry 32:46
all right. All right, let’s do it.

Unknown Speaker 32:49
Over the past six hours, Americans have been taking in a rare occurrence in this nation. A police officer convicted of murder on the job. How rare from 2005 to about 2015 a period including 1000s of police killings. believe your eyes as you look at the screen, the number of police officers convicted of murder for shooting a person over all of those years, all together was zero. But I can report for you that from 2016 on there were about one or two such convictions a year for police shooting deaths. And now, this year, we have the first such murder conviction of 2021 which is correctly seen as a rare development. Big front page news.

Andy 33:39
What do you have to say about that?

Larry 33:41
I am not sure he’s accurate about 1000s of shootings. I think there might be a little hyperbole there. But I don’t have the statistics either. But the point is there have been an awful lot of police killings. They weren’t all shootings, some of them got suffocated. Some of them got rough ride. You remember the one that got the rough ride that they end up dying? Yeah, they didn’t. They’re not all that was. Yeah, they’re not. They’re not all police shootings. But what I’m setting up here as the criminal justice reform, that we all claim that we want to see happen, and how we got to this position, and what it’s going to take to move us towards reform. So we’ve got a whole series of clips coming at you. But this one was so just this, this killing was so egregious that we actually got a conviction. But okay, let’s keep keep going. The Minnesota Attorney General had an opinion.

Unknown Speaker 34:44
The prosecution team that led the case against Eric Chauvin has called the verdict, “A step toward justice”. Minnesota Attorney General Keith Ellison spoke with 60 minutes Scott Pelley for his first and only interviews since Derek Chauvin’s conviction

Scott Pelly 35:00
There was one question that has gone unanswered in the trial and in the jury verdict, a question that even the video couldn’t answer. And that is the question of motive. Why? Why would this officer assault? George Floyd?

Unknown Speaker 35:20
Well, that’s a question we’ve spent a lot of time asking ourselves. And all we could come up with is what we could divine from his body language in his demeanor. And what we saw is that the crowd was demanding that he get up. And he was staring right back at them, defiantly. You don’t tell me what to do. I do what I want to do. You people have no control over me. I’m going to show you. I also think that, you know, George Floyd was treated that way because he was he was suffering from anxiety and claustrophobia cooperated with the police in every way, until they tried to make him take his six foot four body and jam it into a very tight space in that car. And he he kind of freaked out. And I think the fact that he was not complying, he wasn’t, I wouldn’t call it what he did resisting, I would call it he wasn’t complying, because he was having an emotional reaction to getting into that car, even after he ended up on the other side of the car. He said, thank you to them. And he would have been, but they just, I think what happened is, you do exactly what we tell you to do when we tell you to do it. No excuses.

Andy 36:45
What did you want to glean from that information of the Attorney General?

Larry 36:50
Well, as as he was saying, You can’t know why a person does what they do. And unfortunately, you didn’t need to know why did you just had the evidence that he did what he did. He intentionally kept his knee on the person’s neck until his life was extinguished. But it seems like to me that that was the only thing I could agree with. I can only agree with the Attorney General. That was the only thing is he said it was conveying to the people that were saying, let up was you people don’t tell us what to do. We’re invincible. We don’t answer to you. That’s a sad day. When the people that employed the police officers have no say over what the police officers do, how they do their job. That’s I don’t know how we got to that point. But apparently, that’s where the police departments think they are that they? Do they get to write their own rules and do exactly what they want to do.

Andy 37:44
And should the population step up and push back on what the rules are?

Larry 37:53
When I don’t know that I have the complete answer. But one thing I can say with certainty is that we should get over and beyond this notion that we don’t control the police. I don’t know if any other occupation where we tell the person, you get to make your own rules, you get to monitor yourself, you get to decide what equipment to use, you get to decide when to when to deploy it. And you got to make all these decisions. I can’t think of another occupation. They don’t do that at NASA, they don’t do it at the post office, they don’t do it at the Pentagon. I can’t think of anything where we let people decide how they do serve the military, try try disobeying and find out what happens to the military. But in the police. That seems like that did you get to decide what you want to do. And if you violate the policies that they have, there’s very little in the way of repercussions. And that’s what this whole thing is about, is accountability. When you pull in a lady by her hair, and you drag her across the street, and it’s proven you did that, you have to be held accountable. We don’t want our police officers who we pay their salaries and their benefits dragging 67 year old ladies around by their hair. We don’t want them doing that that’s not acceptable for our code of conduct. Just like when you’re working in a supermarket, they don’t allow you to grab the customers behind. They don’t allow you to solicit phone numbers from the from the guests. They don’t allow you to do a lot of things because it misrepresents their values. And, and I don’t understand what this is not a complicated if you folks, the police work for us and we get to make all the rules.

Andy 39:32
And so now we will move over to those individual clips.

Unknown Speaker 39:38
This modern system grew out of a racist Jim Crow framework. It grew out of American policing that used a punitive crackdown on inner cities, which is measurably harsher than almost all other countries like the United States like other democracies, and many of these more recent controversial and harsh approaches to crime. They were passed by both parties. In the 1990s, then candidate Bill Clinton cast himself as tough on crime and made a point of flying home to oversee an execution.

Bill Clinton 40:12
I’m just going home going, Yeah, we’ve got an execution tomorrow.

Bill Clinton 40:17
All day on those days. At the man, are

Andy 40:21
you saying? Are you saying? Are you saying that bill clinton goes home like waiting to press the button to stop an execution? Is that what that clips about?

Larry 40:31
Well, I think that the the host took that out of context. And we’re talking about 1992, almost 30 years ago. And communications were a lot different those days. But every state where the executions are used, they traditionally, back in those days, had a hotline to the governor to see if there was gonna be clemency, because lawyers are always making a last minute appeal to the governor. And they also have a hotline to the court, the state Supreme Court to see if there’s going to be any judicial repreive. And to make this sound like that, Governor Clinton was going home because he was ready to smoke a big fat cigar to celebrate an execution is ridiculous. That was not why he was going to Arkansas. He was going to Arkansas

because he might be called upon to make a decision. And he wanted to be readily available to make that decision, in 1992. And that’s probably more likely a truth. But okay, keep going next clip.

Unknown Speaker 41:31
Some of the most powerful democrats in office today, were there then. And they were for it. And they were touting how tough those policies would be.

Bill Clinton 41:45
The plan is not as tough, it is fair, it will put police on the street and criminals in jail,

Chuck Shumer 41:51
if you want to do what our constituents are pleading with us to do, which is make the streets safe, tough laws on punishment, smart laws on prevention, you will vote for this, this bill

Hillary Clinton 42:04
would have put more police on the street would have locked up violent offenders would have given more prison construction money. It’s a very well thought out crime bill,

Joe Biden 42:30
more cops, more prisons, more physical protection for the people, you must take back the streets.

Andy 42:24
So that was that was in the middle there, that was Chuck Schumer. And like, I could hear it in his voice. But boy, does he look very different today. But that was also I remember who it was it was Chuck Schumer at the beginning. And then Hillary Clinton and then Joe Biden at the end.

Larry 42:39
Yep. The whole the whole list you’ve just articulated; that’s where, but remember, that’s where the people were, in 9293 94, the crime rate was higher, and the people were demanding tough action. And that’s where the people were back then. And 100,000 additional officers was a big savings for the states because a lot of states misappropriate those funds or they they used it in lieu of their officers that were supposed to add 100,000 additional officers because that would help fight the tidal wave of crime that we were they were having back then. But the point I’m putting that out there for is that the Democratic Party was a part of the problem, you can also be a part of the solution. Now when we go to the next clip, we’re going to see how one party has evolved. And has recognized that some of what they were supporting three decades ago, was not good public policy. And we got to see another party who has no intention of changing. So let’s now go to clip three.

Unknown Speaker 43:49
More money for prisons, Biden was describing the call from then President Clinton. And they’d go on to tout that bill Biden called it the Biden crime bill as recently as 2015. Now today is President Joe Biden is leading on a very different approach. And it can be a sign of strength to change your mind or change your plans when the results demanded.

Andy 44:17
And where are we going with this more money for prisons and Biden?

Larry 44:21
Well, that that’s that Biden has had a change. He’s recognized that what we were doing in the 90s needs to be adjusted. Now the next clip will show you that the people on the other side of the aisle have not had that epiphany yet, so go ahead with the final clip.

Unknown Speaker 44:40
And offenders weren’t just stuck in jails, because of what they did. This is fundamental. It was because of also what politicians did. And some of those politicians are retired, others are still in office. Some have responded to the failures of this system by embracing reform. What I talked about the strength of being able to change your mind, others are still doubling down on mass incarceration today. Many republicans right now trying to prevent even a debate and vote on this George Floyd bill in the Senate. It’s the Mitch McConnell strategy for most things that are pushed by the other party. Just block it. While also again, when I talk about complexity and evidence, also, it’s worth noting that there’s at least one republican senator now stepping out, saying it’s time to negotiate on some parts of the George Floyd act with a veteran CBC leader.

Andy 45:31
So is that, the Republican Party is going to get on board with criminal justice reform stuff?

Larry 45:39
Well, it sounded like one might. But But the point of it is, is when you say you want reform, watch who is pushing for reform now, and who is obstructing it. And as with the first step act, it was watered down by I keep going back to the same thing over and over again, for the regular listeners. A group of conservative senators led by Tom Cotton from Arkansas, caused you not to get the full benefit of the first step act. It is a group of conservative senators now less one, apparently, that is trying everything they can to prevent any meaningful criminal justice reform from happening. If you want the reform, you say, You’re for, then you need to apply pressure to these republicans, the Democrat Party has seen the light. But since the Senate is divided equally, and it takes 60 votes to get anything done, that one isn’t going to be enough. So we need to get some Republican support if you are for what you say you’re for.

Andy 46:52
And, okay. There’s, there’s a lot going on there with this Larry. I mean, there’s a mountain of stuff going on here with this too. So it’s just it’s just not as simple. I know, I know where you’re going. We have one party that’s on board and we have one party that’s not and we only have the two parties pretty much to deal with other than a handful outliers of independents like Bernie and whatnot. But Rand Paul, but yeah, a lot. There has to be a lot of concessions made by what do you do with a guy like Joe Manchin, Joe Manchin, and like the practically the red estate, and he’s a democrat in the in in West Virginia, where he may be four, but he might not be politically able to do it.

Larry 47:33
Well, Joe Manchin will be on board with him, he may not be on board with every single component, but he won’t block criminal justice reform. He’ll do, you’ll get the Democratic Caucus, but you are going to need 60. It’s not anything you can do with budget reconciliation. So you’re going to need 60. So I’m telling you, since you’ve got one who’s saying it’s time to start negotiating, find me nine more, and I’ll help you get the job done.

Andy 47:55
Because who’s the leader?

Larry 47:59
Right. That’s my whole point. Okay, if you’re for what you say you’re for, then you have elected an awful lot of people that are against what you say you’re for.

Andy 48:11
Gotcha. Oh, right. That, that closes out all the fine clips for the evening with no technical difficulties whatsoever [sarcasm]. Where do we go from here?

Larry 48:22
Well, depending on how much time we have left, we can go back to some articles that we’ve been. We’ve been skipping. Okay. I’d like I’d certainly like to do the Supreme Court one, because that one’s very important. And I’d like to pontificate about the shackling of pregnant women, for sure.

Andy 48:39
Perfect. So let’s do the Supreme Court upholds life sentence for teen killer. This is from Courthouse News. And there’s another article in there as well. So I guess basically, what the Supreme Court ruled is that juvenile defenders can be held accountable at adult level. I think that’s how it went.

Larry 48:59
Not exactly. It’s life without parole sentences. The Supreme Court at an earlier time in a case out of Alabama, Alabama had decided that life without parole was unconstitutional for juveniles. This Supreme Court in a 6-3 decision with all six of the conservatives in that majority, overturn that case and said that, that this Mississippi person who committed this crime at age 15 can be held as a sentence with life without parole. And that does not have to be the specific finding that previous precident had had had required of encouragement. So the reason why I put it here, it doesn’t directly impact PFRs. But it indirectly does because a lot of people particular politically conservative people are sitting around waiting for the Supreme Court to save us. And I have been trying to say actually, when it comes to criminal justice stuff, the more conservative The court is, the less likely they are to save you from anything because they’re going to defer to the states. So what this Supreme Court did in a six to three majority with a blistering dissent from Judge Sotomayor, that they said that the state of Mississippi can do exactly what it’s doing. without, without that, in cordial, and cordial finding ties back to the Ninth Circuit case with Steven May, which we felt so bad about. He has a 75 year sentence. And one of his arguments was the excessive nature of that sentence. But that’s within the sound purview of the state of Arizona, in its elected officials, that it has decided that, that that sentence is okay. If you’re waiting for the Supreme Court to save you, on harsh sentences, you’re going to be waiting a very, very long time until we have a different court. So I suggest that you get serious about electing the right people who make the laws to begin with, and communicating to them that you do not want these excessively harsh laws, because a conservative court is going to defer to the states who made these laws, and they’re not going to second guess the people of those states. So that was the reason why I put the articles in here because there are so many people who believe the courts gonna save them, and particularly a conservative courts gonna save them.

Andy 51:20
Yeah, I’m not really a fan of where this one went. And I heard about NPR covered it. That’s where originally heard about them. Um, can you quickly describe what starry decisis is?

Larry 51:32
Well, that’s the like, Justice Scalia. We played a clip it’s it’s where that existing precedent guide you in decision making, so you don’t have to start from scratch and invent the wheel every time. And so this court, basically jettison that that notion, because they wanted a different outcome, this court wanted the state of Mississippi to be able to have the discretion

to do what it did. But it’s not going to stop at just death sentences. I mean, excuse me, life sentences for juveniles, it is going to be all challenges against the harshness of sentences. They have telegraph to you loud and clear in a six three majority, that if you have an issue about the excessive nature of your sentence, that’s not a problem for them.

Andy 52:19
I’m trying very hard, Larry, to frame this that we should let the states determine because that’s closer to the people that people voted for the legislation, and DAs and whatnot. And that’s how this sentence would have come about that. Otherwise, then we would have the Supreme Court be super let super legislators

Larry 52:41
Correct. But and Justice Scalia would tell you that today, there’s nothing there required Mississippi to impose a life sentence without parole. They did that on their own volition. Justice Scalia, if he were alive today would tell you that there’s nothing in the constitution that precludes that. Therefore, he’s not going to invent something and the Constitution is not there. If you want the life sentence to go away, Justice Scalia would tell you to go to Jackson, and to convince the people in Jackson that you’ve elected that you do not want juveniles subject to life sentences. Do not come to him wearing a black robe and expect him to undo what you did to yourself. That’s what he would say.

Andy 53:21
Changing gears just for a second, Richard in chat asks if Stephens attorneys have asked if considered asking the governor for commutation. I swear I think we covered that. It was either and like the governor is not going to do this because he probably wants to keep his job and would get voted out of office if he commuted the sentence of a PFR.

Larry 53:40
They they have it considered that they’ve they’ve considered the prosecution integrity unit in Maricopa County, they’ve considered everything. Unfortunately, none of it’s likely to work but they have an amazing legal team.

Andy 53:52
Alright, then there was that one you did you one of the shackling. We’ve covered this at least more than once, but it was from the Associated Press, “Broad support for North Carolina bill to bar shackling of pregnant inmates”. Yeah, like how is it ever Okay, to Shack? Was it ever okay to shackle a woman that’s pregnant?

Larry 54:19
Well, because it’s a policy, the department that all.. what happens is most instances and precidence, they get transported to deliver that some prisons do delivers and, and custody but lots of times they’re transported, the smaller the institution and county jail or whatnot. But it’s their policy and we have officers who take their policies very seriously. That all inmates are to be shackled when they’re in the hospital. And they look at that black letter and I say, well, it says all prisoners are to be shackled. Therefore,

Andy 54:51
you are a prisoner right?

Larry 54:53
Yep, that is correct. Now what what really boggles my mind and you’ve heard this before. Why Why is it that we have to have a law to inspire you to rewrite your policy? Why wouldn’t you just be able to, and I support the law. So don’t misunderstand this. I support the law because you’re not able to do that. But why wouldn’t you be able to just say, our prisoners as a general rule, or to be shackled, with some exceptions, and maybe, since no one’s capable of figuring out what those exceptions are, to articulate a few of them and then say this list is not all inclusive, and give the offer system discretion, but just what you claim, you want? You hear officer discretion, Officer discretion. We want officer discretion. Okay. Well, if your offer for some discretion, okay, if you really believe in officer discretion, that’s what you hear police leadership saying, when they defend the officers action, they say, well, we have to allow them some discretion. Well, show us you really do mean that.

Andy 55:53
There There are at least two women in chat. And I suspect I know one of them has had kids, I’m pretty sure the other has kids also. But can you I can’t imagine carrying around a 10 or 15 pound bowling ball like in your abdomen. And you would be hostile to the point that …. you couldn’t really run away. I don’t I can’t even understand the concept of shackling them. I suppose someone got irate and grabbed some scalpel or something and started stabbing people. And that’s where this came from. That’s just a guess. But I don’t think that’s a common common thing that women are doing when they happen to be giving birth while they’re incarcerated.

Larry 56:31
I doubt it would happen that way. I think it’s just a holdover to policy. You know, our policies like handcuffing, they have policy, all prisoners will be handcuffed. So you take a 90 year old man, 90 year old woman, 80 year old woman, they’ve got very weak skin. They’ve got all these issues. They’re so brittle their hands, and it’s like you say, okay, Chief, I’m not gonna handcuff this old lady. I’m sorry, but your policy, but I’m not gonna follow it. But you need to give those officers that discretion to make that decision. As I said earlier, you claim you believe that officer discretion, give them some

Andy 57:05
We’ve covered that before I was just saying in chat. It’s like it’s silly / funny to even bring it up just because it’s it’s one of those things that tips the scales of being ludicrous. We have something of let’s say, we have five minutes left, pick one more article before we drop out of here. If you’re okay with that, Are you in pain?

Larry 57:25
I can make it through this. We’ve got we’ve got to Connecticut the president defending the porn ban, which which is in my claw, so let’s do that one.

Andy 57:35
Alright, so this is also from Courthouse News. “Connecticut defends prison porn ban as boon to female staff”. Like so it says conceding Monday that this case, not an easy one to take a lawyer for Connecticut prisoners unable to collect their playboy subscriptions, argued that the state has only anecdotal evidence that it’s pornography ban made prisons a less hostile place for female staff. I would almost argue, Larry, that if the men that are in prison, had some sort of stimulation to relieve some stress, so to speak, that that might make life easier on the female guards. I don’t know that that’s true, it seems like it’d be true.

Larry 58:16
So well, this is an interesting one, because you don’t have unlimited rights to receive printed material when you’re in prison, because the prisoner administrators have a duty and a responsibility to keep the institution safe for the residents as well as the staff. And therefore, they they can put place restrictions on inappropriate content. Now, how they determine that this creates an issue for the staff. I’m not concerned about it offending anyone that that is the least of my concern. And I don’t have any hesitation saying that. If you’re going to work in a men’s prison, male or female, whatever, makes no difference. Or if you’re somewhere between those two. I don’t care that you’re offended by what you see in terms of what what what the men are looking at. I do care about how the men conduct themselves when they’re interacting with any staff member. And we would not want anybody to be escalated because of receiving porn, but I’m not aware of any evidence. And I think that’s what this case is about. I’m not aware of any evidence that supports the notion that just because you have a playboy, if they still publish those, that somehow or another that you’re going to be escalated on rails to the point that you can’t be appropriate to a female officer. I don’t know that there’s any evidence for that. Otherwise, I would say let them have the magazines you want. The Prison Rape Elimination project is something that I take seriously. You want these guys these urges, they do need outlets, and I don’t see seems like to me that that porn would be one outlet so that those urges would be less, less Maybe I’m missing something here wait to see what people say. But I’m not a big fan of more of banning adult magazines from prisons.

Andy 1:00:09
I agree, maybe you could make it to excessive degree because you can get some pretty hardcore ones that do exist, maybe those get not allowed. But I don’t know, I have read plenty of articles from places like Men’s Health and whatnot that the plumbing for a male is very important to keep healthy. And assuming that these gentlemen want to get out of prison, or that they’re going to get out of prison, and they want to have functioning junk on the other side of their prison sentence. Just see, it seems inhumane and unhealthy to then kind of keep everything locked up so to speak.

Larry 1:00:46
Can you be more specific functioning junk? I’m not familiar with that.

Andy 1:00:51
Well, you’ll you’ll know the term from the TSA. It’s like don’t touch my junk man. Right. So you can use that metaphor. I know we’re being silly and playing fun with this. And I totally know and I’m going along, but yeah, so touching male genitalia, like we want functioning male genitalia on the other side of this, there. That was that. That’s what that PC is.

Larry 1:01:11
That’s what functioning jackets. All right, I’ve got it. All right, Larry,

Andy 1:01:17
I think that we, we are done with no technical difficulties on the evening. I didn’t say to the beginning, but make sure that you press LIKE subscribe. All that stuff on YouTube and miscellaneous other places, I guess like Spotify and Stitcher the only place that you can like podcasts. But that’s the best way to find them anyways on a podcast app, but otherwise, you can find all the show notes and everything over at registry matters.co phone. Larry, we got a we got a Patreon we got a Patreon I got to go get that information super quick. Hold tight, hold tight. I know it’s funny

that he made me be specific about it. We had a Patreon Ah, it’s being slow. I’m running. I’m running over my hotspot layer. So it’s going slow. Because I didn’t want my internet to crap out. We gotta we gotta do I wish you paid.

Larry 1:02:08
So yes, you people would fix your internet. I wish you people would fix your internet.

Andy 1:02:12
It’s supposed to be happening. I talked to tech support last Thursday night and they said that they’re doing quote unquote, a node split. And so hopefully that’ll resolve everything. But we did get a new patron named Sean. Sean, thank you so very much, and very much appreciate your generosity. And otherwise, Larry, that’s all I got. You can find everything over at https://registrymatters.co. And with that, Larry, I bid you adieu and I hope you feel better and recover efficiently.

Larry 1:02:40
Thank you. Thanks for having me. All right, man. Good. I like

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