Transcript of RM173: Louisiana Adopting A More Discreet Marking On Licenses

Posted on April 19, 2021 by andy

Listen to RM173: Louisiana Adopting A More Discreet Marking On Licenses

Larry 00:26
I cannot. How many is 173. That’s just like two years shy of my age.

Andy 00:34
Yes, I believe that that’s accurate. You know, it’s, at least in my research, when I was putting this together, most podcasts don’t even make it past roughly about seven or eight episodes. And we’ve maybe a few factors made it past that. What do you what do we have planned for this evening?

Larry 00:53
Well, it’s, it’s quite packed with things we’re going to talk about. It’s wonderful to be here with you again. And we’re going to be talking about, let’s see, I can’t even remember it all. And I’m the one that tried to prepare it. We had we had the guest earlier, which we’ve already recorded by the time be, it’ll be played. We have a short video clip, followed by my thoughts on the issue of police misconduct in light of the Derrick Chauvin trial in Minneapolis. And by the way, the state and the defense have both rested and closing arguments will be made next week in that case. We have a couple letters from behind the walls of prison to read. And I want to briefly talk about the case of Michigan versus Travis Johnson. And the issue of constitutional what what’s constitutional what’s not. We’re planning to talk about House Bill 56, from Louisiana, which deals with the marking on driver’s licenses. And we’re gonna talk about Senate Bill 515 was just passed the Maryland legislature in the waning days of the session. And I think I have a personal comment to make about the passing of Bertie Madoff.

Andy 02:03
Wow. And we’re gonna fit all of this in. So as of now we have about 35 minutes left to cover all this. Can we can we make it?

Larry 02:10
We may have to have a patron extra for some of this.

Andy 02:14
Alright, maybe that? Oh, yeah. We also have like a new patron that I gotta I haven’t put in the show notes yet. Oh, let’s see where so maybe we’ll start with the letter from john in Colorado.

Larry 02:26
Yeah, let’s let’s do it. What is what does John have to say?

Andy 02:31
Alright, the reality is, as you all know, that DBAs adore sex charges, as no proof is required no physical evidence and no witnesses needed. An accusation, even if 30 or more years old, is all that is needed. The victim is prepared by the DA given a script to memorize then put on the stand to give an Oscar winning performance complete with tears, conviction by the jury guaranteed. And in this state, is the test for ineffective assistance is the breath test. A mirror is put in front of the lawyers mouth. And if a fox the judge rules that as a competent and effective. Larry, honestly, that doesn’t sound too far from the truth. And a lot of them.

Larry 03:21
Well. He’s actually saying the breath test. He isn’t that far from the truth, because that’s the test that US supreme court but put into it. That’s what they determined. There’s a lot of latitude of ineffective assistance of counsel and the attorney, when you say they’re ineffective. They always say that that was their strategy. And then or reviewing court has to look at was that a reasonable strategy? And almost everything that they connive?, contrive? [Larry’s senior moment].

Andy Concoct

Larry Yeah, I love that. Everything they can concoct is a reasonable strategy. Yeah, it’s very difficult to come up with something that they can’t say that articulate what was a reasonable strategy. And therefore, the deference is to the attorney who was making the decisions on their on the location, with all the facts of the case. So it’s very hard. That’s a very difficult threshold to overcome; ineffective assistance of counsel. Ineffective assistance of counsel doesn’t mean just because you didn’t like the outcome. They weren’t effective. They could have been very effective. I’ll give you an example. In the shelving case that we’re going to talk about later. If he doesn’t get convicted at all if he gets acquitted, of course, that’s very effective. But if he gets convicted of the most of the lesser of all the charges, that counsel again was very effective.

Andy 04:48
Just real quick, what’s the difference between first agree would be premeditated, you’ve planned everything out you went into the thing second is, what’s the difference in second and third, then

Larry 04:57
I’d have to each state is different by We’d have to look at the elements. But But they’ve got everything. They’ve got him down to a very, very minimal charge or they collect second degree manslaughter or something. But, but right, the effectiveness doesn’t mean that you that you get acquitted effectively means that you get a good outcome a view of what could have happened with the evidence they had at the law as it’s written. Remember, guys, your attorney didn’t write the law. Yeah. That’s, that’s beyond the attorneys paygrade not the people who wrote the law, and who establish the burden a threshold of proof that’s required. And the attorney is operating within the environment that the state legislature in Denver decided in terms of what the whole, the whole that’s beyond their attorneys control.

Andy 05:47
Check. Gotcha. And I guess, are we ready to move over to John in Colorado?

Larry 05:54
Yes, I feel bad for the writer of that letter, because he is correct. But that’s the reality.

Andy 06:00
Sure. My question is when I was sentenced in 2014, the judge said I had to register under us code 42. us code looks like 16 901 in my supervised release information, but I see that the law is non existent and was transferred to 34 US code 20901. Back in 2006. There’s an eight year difference. So the question is, if the judge didn’t know, the judge did not use 34 US code 20901 information in my supervised release paper, could I fight the registration? I abandoned my case. There’s no minor, and there’s so much erroneous info in my case, I’m trying to fight the 42 US code 6901. It’s non existent. That’s interesting. What do you think about that?

Larry 06:58
It’s not going to be it’s going to end up with an exercise in futility. James, for everybody who he is in federal prison. And he seems to frame the issue that the judge informed them they must comply with a non existing code section which has been transferred. But in my humble opinion, he doesn’t really have a viable issue, because first of all, he’ll be required to comply with the registration statute and the state he chooses to live in upon his release from federal prison. As we’ve repeatedly said, there is no federal registry. Second, the fact that the judge apprised to me must comply with a non existence section of federal law does not change the state’s law and their registration requirements. So therefore, whatever state he chooses to live in, and as far as I know, they all have registries, registration requirements, and their registration requirements are usually broad enough to encompass all federal registerable offenses. I don’t see an out for him, I don’t.

Andy 07:58
And it wouldn’t matter whether you can find the code or not, they’re still going to say, here’s, what you have to abide by. Whether you can find it or not.

Larry 08:08
Well, yeah, the the admonishment to him was he has to register as a condition of a supervised release. And none of that change, because if the judge had not apprised him of that, he would have still had an obligation to register, because all states have a registry. So therefore, he would have had, he would have had that same obligation.

Andy 08:31
And I’m going to ask the dumb question where it says, USC, that is us code. That’s federal code stuff, right?

Larry 08:36
Yes, that’s the that’s the section of the Adam Walsh act when originally passed, it was listed under Section 42, title 42. And now it’s under Title 34.

Andy 08:46
And then the states have Minnesota, MN, whatever, some Minnesota code or something like that some sort of other moniker and not USC.

Larry 08:54
Correct, that but he he’s, he’s, he’s not in full understanding that there is a state registry, there is not a federal registry. This 42 USC was a recommendation to the States. If you want your money, you will do this. Because if you don’t do this, we will withhold 10% of a particular grant. That the state’s law, and that’s all that is the recommendation. They could say, No, thank you double government, we choose not to have a registry. And that’s not what happened other than the 10% loss.

Andy 09:28
Gotcha. Um, let’s move over real quick. I did hear in the news that Bernie Madoff with a whole bunch of money died in prison. What did you want to speak to about that?

Larry 09:38
I wanted to speak to that because we have an example here of the vindictive nature of Americans and how we can’t get over it. I think that was like a $57 billion with a B Ponzi scheme. And yes, it was a lot of money. If you lost part of your life savings or all of your life savings in That Ponzi scheme, that was a significant loss to you. But as far as I know, he served just a little bit over 11 years in federal prison. And I’m not aware of anybody who got their money, they didn’t already have it, they, what assets of his they could seize. They did. They did that some people got some small amount of reparation. But all that didn’t accomplish anything. He was in the final months of life with a terminal illness as I understand it, he filed for compassionate release pursuant to our because of the pandemic, which there was no chance,
and you know what, that that was going to be granted. But if we can’t let go, at some point where we’ve got enough flesh, the man was no longer dangerous, he would not have been able to be in the securities business, he would not have been able to go on unnoticeable, if he’d have been on home confinement, or in a halfway house or something that was less dangerous to its health. If we can’t let go at any point, then we’re never going to have the meaningful reform that people talk about. Now. I’m not saying that I would, that I would not feel different if I were one of the victims. But that’s why society makes the rules, not the victims, the victims are supposed to be put aside. And the greater good of society is supposed to be what dictates how our system works.

Andy 11:23
See? Okay, and then I guess we will then move over to this video clip. This is spectacular. Do you want to set it up real quick?

Larry 11:34
Yeah, this is a Army Lieutenant is a lieutenant. I think he was.

Unknown Speaker 11:39
Yes, he is, I believe something

Larry 11:40
that he got. He got maced by the police after being pulled over. And it fits in with the Shogun trial, the outcome was far better because the mace you can recover from but I just thought that that would be worthwhile to listen to him. just shy of a two minute clip of of what this commentator has to say. I’ve never heard this commentator before, but he’s really articulate. So roll. And

Andy 12:07
yeah, Brian in Louisiana says he’s a butter bar Second Lieutenant. Alright, here we go.

Wes Moore 12:14
It is it is absolutely infuriating. Looking at this video, and it’s infuriating, because as you pointed out, it makes so many of us feel like liars. Where if we you know we they call it a high risk traffic stop. But unfortunately, in this country, every traffic stop is high risk. Because he did everything. You’re a black man. That’s right, if you’re a black man, because he did everything we’ve ever been asked to do in these kind of situations. Where were you realize in situations like that your resume doesn’t matter. your CV doesn’t matter. The fact that you were in uniform, doesn’t matter. Your vehicle doesn’t matter. Your calm demeanor, doesn’t matter. He calls them sir, it doesn’t matter. You still have to end up in this situation. The fact that you can pull over in a lighted area, it doesn’t matter. And this kind of this this conduct, it erodes at basic fairness, it erodes public safety. it erodes on the idea that people feel like this is it can be built for everybody. And so when we have when we watch this, an Army Lieutenant a person who the same way that I did put his hand on a Bible and swore to protect the integrity and the safety and the future of this country. Now watching how he is treated despite doing everything that he was taught and being asked to do. It makes us feel like liars.

Andy 13:55
It’s funny to be in I don’t mean funny in that respect. It’s super interesting to me. There’s there’s a there’s a friend of mine that just says Why don’t they just comply? As far as I understand, he pretty much complied every in every which way possible. And that’s still how the outcome went down.

Larry 14:13
Well, the only thing that he did that I could see and I watched all the all the video clips I could find he continued to want to know what was going on, which I think is a reasonable request and of what’s going on. And he did not step out of the vehicle upon demand. But again, try to imagine that you’re African American, rather than being middle class white. Try to imagine all the videos you’ve seen in the stories you’ve heard from people in your community. And you might have just a tad bit of hesitation to step out. But had they told him why they were pulling him over. I suspect he would have been more cooperative as well. In this country. You Do have the right to be apprised of why law enforcement is intervening and disrupting your life.

Andy 15:09
I heard something along the way. Not that this is a show about police misconduct per se. But I heard somewhere in there, they said something like the term of “ride the lightning”, which I was like, I can probably figure out that without that, excuse me figure out what that means. And then also, they said something about, he said, I’m afraid to get out the car and the cop said you should be.

Larry 15:30
He did say that. To me, he did say that. He did say that the video, we have some articles here, which we won’t spend any time on. But I’ll say that, finally an officer was held accountable. The one who maced him was fired, which is exactly what should have happened. There’s no justification in my mind your times for for for a person to do that, who’s been cooperative, there was no reason for the officer to fear in any way for his safety with his hands out the window with everything. But this is an example of why we need police reform. Folks, this is an example. This continues to happen. You know, we have teenagers continuing to be shot. We had the police woman, which is the first time I can remember except for the woman in Dallas, the police woman who says that she shot the person because she mistook her taser; If she grabbed what she thought was her taser. And she shot the person now, they have also in the process of trying to hold her accountable. She’s been arrested, and she’s been charged, which is exactly what should have happened. That’s all we’re asking for is to hold people accountable for if she made a mistake, she can explain it to the jury, she can put affirmative defense and say yes, I did shoot him. But it was a mistake. And we’ll see what the jury says. But exactly what should happen, has happened.

Andy 16:53
Very well. But joining us right now is a very special guest that named Selena and she is a licensed practicing realtor in the state of Georgia, and something came up with someone asking me questions about moving into really just wanted to cover this kind of like in general, from a professionals point of view, instead of just being mere Larry just kind of shooting from the hip on whatever our experiences are figured with throw down with a licensed practicing realtor. And let’s get terms, right, your realtor is not the right term, right?

Selena 17:29
No, it is actually correct. It is a realtor, I am a licensed real estate agent. Anyone who is gets their license immediately is a licensed real estate agent, becoming a realtor is different, you actually have to join the National Association of Realtors in whatever your state is. And then of course, you’re a member you have to pay and you have to continue to pay to claim that name legitimately. But yes, I am an actual realtor, and I am a member of the Georgia Association of Realtors.

Andy 18:01
Excellent. And first, like Thank you, thank you, thank you so much for doing this. I appreciate you taking the time out of your busy schedule on a Saturday night to join us. Thank you again for coming on.

Selena 18:10
You’re welcome. You’re welcome. Thank you

Andy 18:12
back to the buyer broker agreement. I guess the idea here would be to if you if you roll up on a house and you see a sign and says called john smith realtor Is this a good idea or a bad idea

Unknown Speaker 18:25
is actually not a very good idea. Now this is as a buyer and as a buyer, it is actually you’re shooting yourself in the foot when you call the actually listing agent because that the agent is actually in a legally binding contract that requires them to of course represent their seller. And so any information and all information that they can possibly obtain from the buyer side that benefits the seller. they’re required to disclose that to the seller. So you as the buyer, if you tell all these things about you know your finances what you’re able to finance what you’re not able to do, you know all these things, anything and everything they’re required to tell the seller this. So again, I feel like you would be you would be making a foolish move as a buyer to actually to contact the listing agent, because like I said, they’re in a binding contract with that seller to tell them everything that they possibly know about you. So if you do like we’ll just say like a lot of people they like that a lot of the companies that they’re with, there’s a lot of major companies like Coldwell Banker, Keller Williams and stuff like that. Definitely, if you like that company, again as a buyer call the main office and have them you know, assign you a an agent so that way you can be properly represented, if you just like the company, if not, like I said As a buyer, definitely if you if you have the opportunity go to someone go to a different company so that way you are properly represented by a different agent that has, that has nothing to do with being obligated to the seller.

Andy 20:14
Okay, and should people get pre qualified before they start doing the process of buying a house,

Selena 20:22
Definitely just when you are in the process of even considering that, we’ll just say that you are actually wanting to be a little bit more serious other than just thinking about it, I would recommend that you get at the very minimum pre qualified, there’s a difference between between being pre qualified and being pre approved. Pre-qualified, means that someone, your lender, whoever your lender would be, they would just put, they will not pull credit that you do, they’re just going to give you you’re gonna ask for basic information about how much you make a month, all these basic things about you about your finances and stuff. And of course, your spouse as well, and try to give you a great guestimation on what you would probably qualify for. And that’s without pulling credit. Now, to make it a better step and more and more accurate you would be it would be in your best interest to actually get pre approved, They would actually have to pull credit, you’d have to send documents, all that good stuff. So that way you would have a more accurate pre-qualification range of what you would be able to afford, you know, so I do definitely, definitely recommend that you would actually would you get pre qualified, I mean, pre approved, pre qualified, you know.

Andy 21:51
So I guess for the listening audience, not everyone, many people have gone through the process of buying a house, but things that are specific to the PFR is that are listening in, at least, you know, in the United States and potentially internationally. And I realized that every state’s going to be different. So we’re speaking mostly in general terms, but more specifically about Georgia. What do I have to disclose as the PFR to the seller about my status of Being on the registry? Should I tell you as the realtor? Or should I still kind of leave that hands off? Or do I have to tell the seller what what do I have to disclose to them?

Selena 22:32
Actually, nothing. You don’t have to disclose any of that information to myself as the agent or myself, or anyone else as the brokerage or the seller, you know, you do not have to close disclose that information at all, to either one of us. Unless, of course you feel comfortable to tell the agent themselves, then yes, I would. I would say that Yeah. If you feel comfortable, if it’s someone that you know that someone that someone else that you know, that recommended that person that maybe could be some, you know, someone that would probably hold that information, and they just kind of use that just to assist you. Yes, definitely let them know. But if you don’t feel that comfortable to let them let them know that type of information, I would not recommend that you tell them that. Because it really isn’t something that I as an agent is required to know. All I need to know is where do you want to live? Where what areas you want to live? Or is there any specific, you know, is there any must haves as their specific cities or, you know, areas or something like that counties or whatever, that’s all I pretty much need to know. And if you’re, quote, pre qualified or pre approved either one of those two, I do have to have that information. Other than that I don’t have to have, I don’t have to have that specific information. If you are a PFR or not, you know, if you’re required to register or not,

Andy 23:48
you know, it would help. Again, I was gonna say, like, strategically, would it benefit me to give you some kind of ideas, and I’m not trying to, like hold your feet to the fire, like I’m specifically saying, like you are not contractually obligated to, if I end up getting into a house that turns out to be not qualified, that you’re somehow responsible for us that I come after you. But if I tell you like, hey, look, I need you to look for a house. It’s not near XYZ kinds of things, schools, parks, playgrounds, churches like those things, does it help in any sort of way?

Selena 24:20
It does help me that if I have to know these kind of details, yes, it does help. Because generally if you say hey, I’m looking somewhere in central Georgia or an Atlanta or whatever, that’s a huge area. And it helps me to know very specific things. Why do I need to know this information? I don’t, I don’t have to know these things. But if you say hey, if you tell me that I have to have I can’t be near this and this and this. I may be a little bit curious. I may ask me why but I don’t have to know why. But it does benefit me. But I when I do find out because I have had a couple of clients that have been a person forced to Register. And I had mentioned to them that it does help me out. But I also also, more than one more than one time, What will I say? Well, I mentioned make sure that they are aware that I cannot be liable for that kind of information to, to ensure that that is where you as the buyer, or you as the PFR would need to make sure that once the process get started, and we find a property that you are interested in, that will be your responsibility. Ultimately, it is the buyers responsibility to find out the kind of information whether you’re a person who’s not forced to register, and you want to know about that information, then you you know, doesn’t matter what side that you’re on, you will it’ll be ultimately your responsibility as that buyer to find out the information that may be important to you whether you want another crime level, whether you want to know how many schools are in that general area, what what schools are there, what type of school what level the schools are at, whatever the case may be whatever information it is that you’re wanting to know specifically about that location, it’ll ultimately be your responsibility to find that information out, I can help you, I can do my just, you know, search, but but I cannot be ultimately I cannot be responsible for that, to ensure that all the details that is that you’re looking for that, that that they are for sure 100% for that particular property, you know, secure now,

Andy 26:34
in initiating the process with someone that’s selling a home, and me being someone on the registry, somewhere in there, I’m going to have to go almost like straddle a fence of do I know that I can live there, I won’t know unless I go talk to law enforcement to find out if the place would be approved. But somewhere in there right now, especially the housing market, his houses are staying on the market for days, you wouldn’t have the time to get the sheriff to come look at it. So how how does the due diligence process work in, like, where can I back out with, with no consequences with minimal consequences, it’s too late the ship sailed like you’re done for where did those different timelines occur.

Selena 27:14
So um, you know, generally the process of acting like when you find a property, you put in an offer and the offer is hopefully, your your agent will assist you in acquiring as many days as possible to help you have your due diligence period. So due diligence periods is where the buyer requests and this seller has to agree all parties have to agree to this. But we’ll just say for a number of seconds of everyone agrees that you’re going to have 10 days of due diligence. And so during that due diligence periods, you you can have a reason or no reason to back out. But during that time-frame, it’s also your responsibility as the buyer to make sure that you get a home inspection, which is very recommended, it’s not required, but it’s very recommended to get a home inspection as well as doing your own part to do your own search. I recommend all my buyers to go ahead and just drive around the neighborhood go in the evening times, weekends, early morning, all kinds of hours to ensure that this is the neighborhood because just because you go in at two o’clock in the afternoon to a neighborhood to look at a house and it’s perfectly quiet, doesn’t mean it will be that way, Monday through Friday,at five o’clock, six o’clock, or on Saturdays or every you know, you never know how the week and how different days will differ on the type of neighborhood that it may be. So that’ll be that will be again, like I mentioned before, the responsibility of the of the buyer to do that part too. If you’re concerned with anything with safety, crime levels, that’s when you go call and make your own phone calls and contact the law enforcement in front of find that information. Now as far as a PFR that’s a little bit tricky. That’s but that is when you will do that timeframe. If you feel like you need to contact law enforcement to make sure that this is the dwelling that you’re you’ll be okay to actually, um, you know, live in then that is when you do it. I have had it in the past where another person has tried that it didn’t work out that way. As far as the timeframe when law enforcement came out. They didn’t do it until they weren’t not able to confirm that until after the the buyer closed on the property. When that happens. Of course we have no control. I have no control over when law enforcement is able to confirm whether this is something that is going to be adequate or this is something that will be okay with you to live in as a PFR I have no control over that. So but you know, when it when it comes to instances like that, I guess at worst case scenario, if you happen to close on a house and you still don’t have confirmation with whether this is an address that you can live at or not, then I guess worst case scenario would be that you would just put it back on the market and sell it or rent it out or something like that, you know, that would be worst case scenario, hopefully during the time.

Andy That sounds terrible.

Selena I know it does. I know it does. And that is why you may want to ask for more than 10 days of due diligence, I would recommend maybe 14 days so that way law enforcement, we’ll be able to occupy. And in hopefully, you know, verify that this is a dwelling that you are or aren’t able to occupy and kind of go from there. But you know, of course, it’s one of those things where on my part, as an agent, I have no control over that.

Andy 30:53
Sure. Friend of mine, he found a house made an offer closed on it all the while has asked his probation officer if he can live there, it’s way out in the middle of nowhere, there shouldn’t have been any issues with it. But it still took him I think six weeks before he got approved to to move in. So now he owns a place. And he goes out to the house every day to go work on it and do stuff to but ultimately, it took him something of a month five or six weeks before we could actually get in.

Selena 31:20
Alright, remember that? Yes, I do remember that?

Andy 31:24
Do you have any tips, strategies, ideas of how someone could figure out the specifically for George’s 1000 foot restriction for many, many people, not everybody. But you’re looking for parks, schools, playgrounds, and depending on when but how would you go about suggesting someone figure out where these different restriction areas would end up to be in relation to the house?

Selena 31:50
Well, not only do I recommend that you as a buyer go or you as a PFR go, actually, you actually take a drive and look at the neighborhood look at the house. Because Because whatever you find on Google will be maybe a little bit different. So I recommend that you personally take a drive and drive thru out that, that square footage, 1000 feet, whatever the case may be for you. If you’re not able to Google Earth will probably be the best bet for you, um, or Google Maps, or some kind of website like that, Google Earth has been a little bit more beneficial to me, because there are ways that you’re able to do like 1000 foot or even whatever your whatever it is that you’re looking for, you can punch in a, a footage, that you’re trying to look in a circumference, and it’ll circle that area and notify you on what’s in there. So you’re able to, narrow down the search for that specific footage area, and maybe see that what’s in there. Now, again, like I mentioned, this is just Google Search slash internet stuff, and we can’t always be 100% sure that everything’s gonna be accurate on there. So I do encourage you to do extensive search, again, visit the area, make sure or at least then someone that can actually visualize because things change all the time. Just because Google Earth or Google Maps or, or whatever other map sources you’re using, if they say that there is not a church / childcare center there, doesn’t mean didn’t want didn’t pop up last week, you know, so I do recommend that you actually go there to visualize everything.

Andy 33:45
used Google Earth and drawn circles around to at least give you some sort of idea of how far you’re concerned with. And it might not be from where the house is you’re looking at, you know, if you go buy 100 acres you have to worry about from the corner of the property is not where the house is, which is a total correct, but,

Do you have any quick final points before we move out?

Unknown Speaker 34:08
Yeah, I’m not I do have some just kind of some pointers if you are interested in if you’re looking for a piece of property. If you do have recommendations for someone else, as far as an agent goes, you know, do your research on that particular agent, um, maybe kind of like, get a feel for them, talk to them real quick and kind of see what you know, go on Facebook, go on social media, if you’re able to, and just kind of do a research on them specifically, if you’re able to get word of mouth recommendation, I would recommend doing that. As far as like a buyer, there’s several things that you shouldn’t shouldn’t do. And I can post that information which you can contact Registry Matters kind of get that general information on being a buyer or being a seller. There are booklets, there’s I can send you a booklet or I can send you some general basic information on just being a buyer or seller. on that, if you want to contact them to get that kind of information, I can certainly provide that for you.

Andy 35:15
So you’ll send me those booklets and I can post those in the show notes for people to snag. I think I think we got everything covered all the questions and all that stuff. And if they want to reach out to you, you gave me the phone number, if they have any questions, that they could reach you at 478-225-3688. And I think that’s about it. And I can’t thank you enough for coming on the show and providing us with that info.

Selena 35:41
Thank you very much for having me. I appreciate it.

Andy 35:44
Appreciate it. Have a great night. Talk to you soon.

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 74722744771 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.

All right House Bill 56, which is pending legislation in Louisiana. Just to bring everyone up to speed the Louisiana Supreme Court declared that marking driver’s license was unconstitutional. We discussed the decision in the podcast God probably six months ago, four months ago. And I want to read directly from the final page of your written analysis. You people that would be up Larry, this ruling leaves the door open to the state of Lousy-ana adopting a more discreet marking on licenses and identification cards. I believe that you predicted that the legislature would pass a new version and here we are now. They are now considering a bill to reinstate the marking with one that is more discreet. Do you think that this will pass and do you think it’s constitutional?

Larry 37:24
Yes, I believe it will pass. And I hate to say but I believe it will be upheld as constitutional. And I hope there’s a challenge but I believe it’d be upheld.

Andy 37:36
We talked earlier in the week about the marking I guess, like in Florida, which just like some tiny little code in the tiniest little font, not saying i’m in favor of it, but it’s super like not like some big freakin x on the driver’s license. It says PFR here, something like that. So if they do something more benign, it would be harder to say that this is some sort of debilitating marking. That is correct. But

Larry 37:57
But see now, I put a case out there that you were pontificating about why you don’t understand the Michigan case. Now you see the reason why I decided to put the Michigan case in there. Although it doesn’t directly deal with sex offender registration, it does explain two types of constitutional challenges. So let’s take a look at it now. And I would ask that you read the highlighted section on page two, it explains facial challenge versus as applied. And that would be helpful if you would read that.

Andy 38:26
So you copied here says it explains a facial challenge versus as an applied No, no driver’s license,

Larry 38:32
don’t read from the decision from the decision of Michigan, the Michigan decision that’s in the PDF. Already? Oh, me too. I’ll do it. I’ll do it if you’re if you did, so. Okay. I

Andy 38:43
Do have it. I found I found I got I gotta gotta gotta get it. Do you want to defend it, Mike? a constitutional challenge is that,

Larry 38:49
yep, that’s impeached. Okay.

Andy 38:52
All right, a constitutional challenge to the validity, excuse me, the validity of a statute can be brought in one of two ways by either a facial challenge or as an applied challenge. A facial challenge attacks the statute itself, and requires the challenger to establish that no set of circumstances exists under which the Act would be valid. The fact that the act might operate unconstitutionally, under some conceivable set of circumstances is insufficient. So got this facially like i, you and I have talked kind of at length about this in the past about what does this actually mean? So can you dig into that a little bit please

Larry 39:30
That’s why I wanted to hear from a recent court decision, because the standard is uniform across the country on a facial versus as applied. The reason why you will never be able to stop them from marking driver’s licenses, is because if you just listen to what was said, there, there has to be, to succeed and prevail on a facial challenge, there has to be no set of circumstances by which a marking could be put on a driver’s license. And that just It can’t be the case, we bought driver’s licenses already, we bought driver’s licenses for people who are under the age of legal drinking. In my State, they turn those vertical. But that’s a market. Right? We marked driver’s licenses for people who have visual impairment. We mark driver’s licenses for people who have an interlock required. But so you can’t say that it’s facially unconstitutional that there would be no set of circumstances by which a marking would operate lawfully. Therefore, we have to make an as applied challenge each time a law is passed, requiring a marking on a driver’s license, since it can’t be facially unconstitutional, we have to look at how they’re applying it and what marking their applying. And in this case, this is far more benign than what they had previously. And, as I said, in the prediction from back in October, when I wrote that analysis, that this is exactly what I would expect them to do. And I mean, it doesn’t take a genius, this is exactly what they would do. They’re not going to fold up their tents, I guess we got this wrong, we just never should have been doing this, they’re not going to do that.

Andy 41:11
So tell me what they are proposing as an improvement over the current law.

Larry 41:17
Oh, it’s, it’s it’s a dramatic improvement. The improvement is because you don’t have to now have a separate ID card, it eliminates having it previously, you had to have a separate identification card, even if you had the mark driver’s license. And now you will have the opportunity to have a license
that doesn’t have to be renewed annual, which is going to cost you would have cost you money, they would no longer be expending those funds. This marking is going to just say T or one, T one, two, T two and so forth and so on for your actual designation under under Louisiana system, they use the tier system. And these are not risk based, these are just simply office based. They take the categorical categorical approach at Louisiana. And this is all they’re putting out there. I don’t like it. But the question you asked me was, will it pass constitutional muster? I believe it likely will.

Andy 42:16
And why are you so sure of that?

Larry 42:20
Well, I don’t see that… If there are people out there who said, Larry, you don’t understand the Sixth Circuit struck down by Michigan’s registry, because of the that after they changed the law, they put in the tearing system and people’s registration periods were increased. And they did that without any due process. But in Louisiana, they did not dis driver’s license doesn’t change your registration period. So in order for you to draw the correlation in Michigan, you would have to look at that you’d have to bring a more comprehensive challenge. And you have to argue that the disabilities restraints, which is what won the Michigan case. And just simply this marking, I don’t think it gets you to the finish line. But if you combine a challenge, and you argued that the marking, marking of the of the T one, T T T two, and T three with all the disabilities are restraints, and that they gave you that without any due process, you might prevail that way, but if you just assault this particular statute with a challenge, I think you’d get little or no traction.

Andy 43:32
Um, all right. And if we want to push back, if the PFR is want to rally the troops and go try and defeat this. What do we do?

Larry 43:46
it’s virtually impossible for me to even devise a plan to push back. Louisiana has has had this marking for years. And the law enforcement will claim but they need this marking for for community safety as well as off officer safety. And any meaningful opposition’s are likely to materialize, because we really don’t have a strong advocacy in Louisiana that I’m aware of anyway. And you would need to have significant public opposition. And I just don’t see that materializing either. So if you’ve if you’ve got public support, you’ve got law enforcement support, and you don’t have any meaningful public opposition. How do you how do you overcome that? those dynamics? I don’t see how you do it.

Andy 44:31
Do you really do you know that like you always seem to be the eternal pessimist? Like I can’t really ever like rarely do we ever get good news Larry

Larry 44:39
Yeah, I’ve heard people say that before.

Andy 44:44
How about over on a Senate Bill 515 from the Maryland on the phone find this one. The proposal is heading to the Governor Larry Hogan for his signature. What is this and what will it do?

Larry 44:58
Well, the first part question on the bill severely limits or actually, I think it prohibits students who are listed on Maryland sexual offense registry from attending regular schools. And the second part of your question is, well, Governor Hogan signed it. Yes, he will sign it. So

Andy 45:18
I assume this goes to everyone. Why doesn’t the the president, governor fill in the blank there? Why don’t they just veto it if these things are so terrible? I mean, I’m assuming that this goes to that.

Larry 45:28
It does. And and I don’t have a crystal ball. But I do understand the political reality. And by the way, this bill caught our Maryland affiliate by surprise because it passed in the waning days of the session, and they had assessed it as unlikely have passed. But let’s talk about the political reality. Through the years, there’s been much criticism a former President Obama for not vetoing international Megan’s Law back in 2016. You remember that? Right?

Andy 45:56
I do. I do. I do that sort of thing. Now,

Larry 45:59
Now we have the opposite scenario in Maryland. Obama was a democrat and Governor Hogan as a Republican, and Governor Hogan will sign it because there was overwhelming public support for the legislation. And it is purportedly solving a terrible problem in Maryland. The purported problem is that the survivor of the sexual crime could find him or herself in daily contact with the perpetrator in a public school. And Governor Hogan would not dare veto a proposal that is fixing such a problem, just as the same as Obama, or any other president could not have vetoed international Megan’s Law with law enforcement support at all the overwhelming public support that this was to help prevent Americans from traveling to other countries to exploit vulnerable children. The reality is, Hogan has got to sign it. And if it wasn’t Hogan, if it was a democrat governor, they would sign it. This you can’t be told this type of thing. Right?

Andy 46:59
Yeah, like, yeah, we already know they can’t veto because if they did, they would lose a ton of political capital. And it would probably get turned around and that veto would be overridden. Right?

Larry 47:11
Well, I think they adjourn. So I don’t know what the process would be to override it. But even if even just even if they can’t override it right away. This would be politically just it would be unsustainable political position for the governor of Maryland to put himself in it. I don’t see it happening.

Andy 47:27
But I’m like, I really thought that you were such a believer in the Democrat Party. Last time I checked, the Democrat Party has the majority in Maryland. How did this then pass?

Larry 47:38
Well, it passed, because it has significant public support. And I hope you’re being tongue in cheek, because I’ve vigorous have criticized the democrat party for supporting bad public policy. And I’m doing it again here today. Maryland Democrats, this was an irresponsible thing. I find I find this measure appalling. And I believe it’s unconstitutional. If we’ve learned anything about public education, I think we’ve learned that separate but equal is not equal. And to prohibit these young people from going to regular schools, so they can get an education, look at the page four the bill. It takes shell educate, and it hurts it to bait, can you believe that may provide the student education. And I think this is deplorable. And I have criticized the Democrat Party over and over again. And I’ve just hope that we get some, we get some similar criticism when Governor Hogan signs this. I would ask this listening audience, that you were so critical of Obama, hopefully, you’ll be equally critical of Governor Hogan for signing a bill. And I hope you’ll hold him to the same standard that you held Obama to and and demand that he vetoed this bill, but just what Obama should have done according to you, and this is I can’t believe that this past but bad public policies, what we criticize, we don’t care about the Democrat Party. If it’s bad public policy, the democrat party gets criticized. This is bad public policy. And I’m disgusted that the democrat controlled legislature in Maryland passed that.

Andy 49:20
Um, okay, so is there anything else on this before? I mean, I’m gonna have to kick the the stump speech thing out from underneath you honestly. Do you have anything else that you want to?

Larry 49:35
Well, this one, this one, like I say if you look at if you look at the it’s, it’s in here, look at page four. This is just appalling to me about what they’re doing. A registrant who is a student may actually it’s on page three, and they they struck shall continue receiving and put may receive an education. “May”. I love that you may receive Even education,

Andy 50:00
I see where they struck that, okay, yeah, whatever. Line four is how its marked II, one of registering who is a student and that’s marked out shall continue receiving, but may receive an education. So that gives them the way out that we’ve talked about this word shall versus May, on a number of occasions shall would make it a mandatory thing that they still get educated but “may” says “maybe”.

Larry 50:20
well, we could spend a little bit of time since we didn’t go as long as I thought, but that they leave this up to the local communities to set this up for for alternative education. And if we learned anything separate but equal, it’s not equal. These right, these youngsters need to be participating fully in education process with their peers. And if there’s work if they’re if the concern is truly about contact with the victim, that would be justification for having policies to to offer that, that kid an opportunity to go to another public school, but not to be banned from public school. But this this is this is just repugnant to me. But what happened was, Maryland has this in many states have this great thing for that cross file, they’ll file an identical bill and the House and the Senate. They’ll introduce them simultaneously. And this had a companion bill in the House that was identical. I believe it was House Bill 48. And House Bill 48 moved over to the Senate. And it got amended in the house before it got over the Senate. The Senate took most of the changes, according to my sources, and Maryland incorporated into their bill and I shot it over to the House side. And they were expecting a conference committee. So for that the teachable moment here is you don’t need a conference committee. If there if the same language passes, when the Senate Bill, the house didn’t make any changes. Now there was an amendment proposed on the floor that failed, which would have necessitated at going back to the Senate, but since the House passed Senate Bill 515, as it came to them with no changes, there was nothing to concur with, there was nothing for a conference committee. They just simply sent it on to Governor Hogan, people need to understand that. It it caused a lot of consternation when international Megan’s Law passed, when, when it left the house, which was a house sponsored bill and it goes to the US Senate, the Senate added the marker to the passports. And then it had to go back to the house because it was no longer the same way. And the first step of the House of Representatives has to ask the house if they would concur with the senate change. And of course, Representative Smith, who had been trying to pass that for years, he looked at it said, Gee, this makes it tougher. This is my dream of all dreams, I would never would have thought I would have gotten a tougher bill than what I started with. So of course, he would say yes, I’ll accept that. And therefore, the way the process works. In that case, they would have looked at representative Smith, are you happy with the amendment? And he would have said yes. And then they would have given it a voice vote to concur with the with the bill as amended the Senate that ended it. There are people who were fixated on a conference committee, they would have only needed to be a conference committee, if the house had refused to accept the amendments, then it would have gone back to the Senate test if they would receipt on amendments. And if they refuse to receive, then you would have had a negotiation between the two chambers to see if they could come up with an agreement. But all that doesn’t happen if the same bill passes both sides. And that’s what happened in this case. 550 passed, passed the House with No changes. And that’s where we are and I expect the governor will sign it and I am encouraging litigation. I hope they litigate this. The people in Maryland that pass this they need to be taught a lesson that you can’t have separate but equal education. Sorry, that’s from the 1950s You can’t do that now.

Andy 53:54
Interesting. All right, then so one of our listeners longtime listeners wrote in he reached out to me directly and he he received received I think he’s received this more than once. He receives a phone call from a specific phone number says which was a recording of the same text he got and I didn’t answer the call as in every answer calls Listen, listen, Larry’s is he never answers calls from people in numbers he doesn’t recognize but he saved the voicemail said mind you the both the text and the phone call were to my actual phone number which begs the question, Who sent them? Is DC actually sending out these calls or alerts he’s getting alerts on his phone talking about Watch out for these scams that we’ve talked about in the past. He’s getting alerts from DCs Department of Community community supervision about the scam calls. I’ve never heard of them sending them out and when I was still under supervision, I never received anything like that. Have you ever heard of them being proactive and warning people like this?

Larry 54:52
I have not but I loved it. I love to hear that because there are people pfrs there’s so many scams and it’s not just pfrs but that’s a particularly vulnerable population is one thing, if they call you and tell you there’s a warrant out for your arrest. And it’s not related to violation of the registry because the violation of the registry assault, the penalties are so extreme. But but they do that all the time they call them tell the IRS, you know that we’re out of war now pay your taxes, Social Security or numbers paid us for fraud, where were the Social Security Administration, you need to but but this is this is so repugnant, as well. And I’m glad that the supervising authorities in Georgia are doing that.

Andy 55:33
I’m not saying that people in the free world can’t track down people’s cell phone numbers. We’ve you and I’ve talked about that a number of times, it is not as easy opening up the phonebook though the white pages and letting your fingers do the walking as the expression used to go. I’m wondering though, if the scam calls or not some kind of inside job. And that’s what really disturbs me is that they have the lingo down, they have they make it a pretty compelling believable type of call. We’ve heard examples of this,

Larry 56:02
I have, I have no doubt that there would be people who would be able to access that information by hook or crook or bribe or some way to find out a list of folks who would be particularly vulnerable. So it would not surprise me. It’s kind of like the contraband that comes into a prison. The majority of it is we have learned comes from people within the prison who are working there. It would not surprise me at all if if these calls are being these scammers are being provided the information by people on the inside would not surprise be the least.

Andy 56:37
Is there anything else my friend before we duck out? I have a patron thing and we can make some contact announcements, whatever. But otherwise, is there anything else that you want to cover? Before we get out of here?

Larry 56:48
I think we’ve covered it. We did lightning speed tonight, didn’t we?

Andy 56:51
We did pretty quickly, pretty quickly. definitely want to thank a new patron coming in at a very healthy level, named Chuc, thank you so very much for your support. That is incredibly awesome. It’s so very much appreciated helping keep the lights on and showing support for the program. It’s incredibly special. And thank you very much. So with that, Larry, I will just, we will say that find all the show notes and everything that you need to connect with the show over at https://RegistryMatters.co. And of course, you can leave voicemail messages at 747-227-4477. My favorite way is for you to go over to patreon.com/registrymatters and show your support for as little as a buck a month. It just helps us know that we are appreciated in providing you with some level of information that makes you a happier camper. And maybe we can push back and fight these things in the future. You know, doing like Brenda is doing there in Maryland and pushing back on these crazy laws about not letting people get educated. So that Larry, as always, I thank you very much for joining us. And I guess I’ll see you maybe in a week.

Macarthur 57:57
That is why I am here. I appreciate the opportunity to be here again.

Andy 58:04
You rock. Take care, buddy. Bye.

Larry 58:05
Good night.

You’ve been listening to F YP

Transcript of RM172: Disappointing Cert Petition Results May v. Ryan

Posted on April 12, 2021 by andy

Andy: 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.

[00:00:12] Recording live from FYP studios, east and west, transmitting across the internet, this is episode 171 of Registry Matters.

[00:00:20] Larry, we’ve definitely surpassed your age by now.

[00:00:23] Larry: We’re almost, but we still got two more years to go.

[00:00:26] Andy: A person in chat says that she is 160. So you guys are sort of like contemporaries, maybe.

[00:00:34] Larry: Oh, I’d say we’re very close in age.

[00:00:38] Andy: I mean, once you get that far, what’s a difference of 10 or 20 years at that point, you’d be basically like went to the single little schoolhouse together. You ran down the hill together.

[00:00:48] Larry: It was uphill.

[00:00:50] Andy: Both ways in the snow?

[00:00:51] Larry: Both ways. Yes.

[00:00:55] Andy: Anything exciting that happened to you during the week? Or do you want to dive right in?

[00:00:58] Larry: Well, I can’t think of anything terribly exciting that the audience would find amusing or entertaining.

[00:01:07] Andy: Maybe we should dive right in.

[00:01:09] And before we go on Larry, be sure that you like and subscribe and share on YouTube and also write a review on your podcast app of choice and all those other great things to help spread the word to all the peoples that we exist. What do we have tonight Larry?

[00:01:21] Larry: If you don’t hit that like button on YouTube, every YouTube viewer, we’re going to disconnect you from this end.

[00:01:28] Andy: Perfect. We can do that too. I have the technology.

[00:01:32] Larry: Oh yeah. We didn’t get very many likes last week, but we didn’t get any dislikes either.

[00:01:37] Andy: Well, that’s good.

[00:01:38] So you didn’t say anything that anybody was really that offended by.

[00:01:43] Larry: So tonight we’re going to hear a voicemail and try to address that. And we’re going to have some letters or questions that were submitted in writing, and we’re going to read a letter and then we’re going to talk about two cases, one from the U S Supreme Court and one from the Minnesota Supreme Court. We may end up dropping the articles that we were contemplating because these cases are going to devour some time.

[00:02:06] Andy: Yeah. I thought we had already kicked them out, but we do have one that we’re keeping cause one of our loyal listeners submitted actually it looks kind of interesting to talk about.

[00:02:13] All right, well then let’s dive right in. I think he might be patron number one, an individual from Kentucky named Jeff and he sent a voicemail message.

[00:02:24] Jeff from Kentucky: Happy Saturday to my two favorite podcasters, Andy and Larry. I had a question about a court case that Larry has touched on in the past. It’s called the Commonwealth of Kentucky versus Baker and it says, “The question of law to be answered is whether or not KRS 17.545, which restricts where registered sex offenders may live, maybe applied to those who committed their offenses prior to July 12th, 2006, and the effective date of the statute. We hold that it may not.”

[00:02:56] So when Larry touched on this before, I thought he said that they could not force you to leave your house if a park or daycare or school popped up. Well, I’m reading that they can’t force you to do that unless your crime was committed after 2009. I was wondering if Larry would review the case and give me some insight on what the case actually says, and as always F Y P have a great day, guys. Thanks.

[00:03:30] Andy: Thank you Jeff, very much. I seem to recall this going on way back in the day. This may have been pre-podcast that this was even talked about.

[00:03:39] Larry: It may have been, we we’ve talked about it, certainly have written about it. I’m gonna say “we” meaning NARSOL. And the question he asks is actually a good one. And we don’t, we don’t know the answer for sure. I didn’t thoroughly reread the case, but I remember it fairly well. And of course, courts can’t, they’re not clairvoyant. They cannot foresee the future. So the issue before them, in that case was for that block of offenders that predated the registration statute that was in question that those prohibitions. It would be my non-legal opinion, that the same concerns that they held when they issued that opinion 15 years ago, would hold true today. What they were trying to address was the perpetual vulnerability to being asked to move, that there would be no play, there’d be no offender would be safe. And that wouldn’t, that would not have changed since then, in terms of if you, if you could force a person to move, then you would not be safe. So if you were convicted after 2009, I believe he said, then you would not be safe. That makes no more sense than what it made in 2006, none whatsoever.

[00:04:53] But as we said before, guess what? If they have passed a law that says you have to move, do you remember where the presumption is? Right?

[00:05:00] Andy: The presumption is, Oh, that you, if you were convicted before, if, if you didn’t have to do it, then you wouldn’t have to do it now.

[00:05:07] Larry: But the presumption of constitutionality, if, if the legislature —

[00:05:11] Andy: If it’s presumed constitutional, when they’ll let you know when the legislature signs it and the governor signs it, then it’s presumed to be constitutional until it’s set otherwise by a court.

[00:05:18] Larry: So, since this this case that he’s mentioning, the Baker case, doesn’t apply to people after 2009, there would have to be a new challenge if they have started forcing people retroactively to leave their homes. I have heard nothing about that in all the years since this case was decided that that’s happening or occurring, or even contemplated in Kentucky.

[00:05:39] But, but if they are doing that, they would be able to do it until they’re stopped.

[00:05:47] Andy: I’ve heard that before Larry, I’ve heard that they can do it until they’re told to stop.

[00:05:51] Larry: And sometimes they don’t stop after being told to stop.

[00:05:53] Andy: I’ve heard of that too. So it’s kind of an amazing thing. Are we are we ready to go on and start delving into this content?

[00:06:02] Larry: If there’s anything going on that we need to know about in Kentucky from Jeff, I’d be glad to hear about it and we can take it up in our next episode, but I’m not aware of anything in terms of people being forced to move.

[00:06:15] Andy: All right.

[00:06:16] And then, all right, so we received a letter from a woman that says “Hello. I’d like to see more info on your organization, please. I’m currently a female PFR from 26 years ago. And it’s not even that I’m a pedophile. It’s registration that’s ruining my life. I received only five years after I refused the offer plea for original charge itself. They tried to give me 10 years for a missed registration appointment. 26 years later, I managed to talk them down to four. It is ruining my whole life. Please give me info that will help. Sincerely.” Jeez, did she receive more time for a failure to register than she did for the original offense? Whatever that was?

[00:07:02] Larry: Sounds that way. And unfortunately, I cannot give her any good news because all the challenges in Texas, this letter comes from Gatesville, Texas. All the challenges in Texas have been turned aside because the proof has not been satisfactory, that the registry is imposing enough disabilities or restraints. They have not been able to distinguish the registration requirements in Texas to the level. And in fact, a lot of the restrictions don’t occur in Texas. It’s these other States that’ve had that have made their schemes vulnerable. And so therefore she’s on that tragic land of, and the intervening years, there was a penalty for the civil regulatory scheme is greater than what the penalty was for the crime.

[00:07:47] She’s having to bargain for a sentence that’s greater than what originally was imposed. And she’s going to continue to experience this potential for prosecution because registration is basically lifetime in Texas. Very few people are removed through that process, but they do have on the books, but no one, no one actually achieves removal.

[00:08:08] Andy: It’s one of those that you’d have to find the tiniest little scope where you were convicted for these three days, 27 years ago. And then you might be able to get off something, something ridiculous like that.

[00:08:22] Larry: My thought is that it is very similar with California. I can’t wait to start hearing the details and statistics as they come out of California, but the process, the way it’s designed on paper, it’s going to be a very difficult thing for anyone to achieve ID registration in California, but I’m hoping I’m wrong.

[00:08:40] Andy: Yeah. Well, that’s discouraging for sure. And certainly sorry to hear that. Where do are we, are we able to send her any information that might be of help?

[00:08:51] Larry: Well, we’re gonna get her on the NARSOL newsletter list. I’m always glad to hear from new institutions. So, we sometimes sprinkle the new institution with a newsletters and that now, so now this is the first communication we’ve had from that prison.

[00:09:04] And where else are gonna give her a trial run for the podcast transcripts though. Hopefully that is a consolation, she can at least collect information about what’s going on through the NARSOL newsletter and from us.

[00:09:16] Andy: Larry, tell me real quick. Why don’t we just blanket every prison in the United States and send letters out?

[00:09:23] Larry: It’s an undertaking. I’ll tell you.

[00:09:27] Andy: it was totally just like a bait and switch kind of question for you just to just make your head kind of explode because I there’s two and a half million people in prison and we would like, there’s gotta be, I don’t know, maybe an average of a thousand people per prison. Maybe? That would be a lot of letters going out.

[00:09:45] Larry: So prisons have far more than a thousand.

[00:09:47] Andy: Oh yeah, yeah, yeah, yeah. But some only have a few hundred too.

[00:09:51] All right. Then we’ll move on to this question that we received says, “Dear Andy and Larry, glad to make your acquaintance, but of course not under these circumstances.”

[00:10:00] And I think, well, did you want me to read that in one next paragraph or was that it?

[00:10:05] Larry: Now we just want to acknowledge, this is a tragic letter from a guy in Alabama who was traveling, and he ended up, he ended up getting pulled over by the police. So we speculated about what might have happened.

[00:10:17] And from his letter, that’s far too long to read on the podcast. It looks like a lot of our speculation was correct in terms of how it went down to stop and what happened. And he’s wanting appellate help. Alabama is probably not going to be a state that provides anything in the way of post-conviction resources beyond what they’re absolutely required to do. So. Oh, I don’t know that we can be of any more help to him other than say, we feel bad for you. We did get the letter and at the moment I don’t have anything to offer him other than, than condolences.

[00:10:49] Andy: Well, all right, then, then we will move on, man. Larry, at this pace we’ll be done with the podcasts at about 20 minutes.

[00:10:55] Then we’ve received another letter. It says, “To whomever this may concern, Hello, my name is McClain and I have truly been wrongly convicted of rape and sexual assault and sentence to 33 years.” God, that’s a long time. Larry. “There’s no DNA in the rape kits, no physical evidence,” blah blah, blah, blah. No evidence. “The prosecutor allowed a bunch of known false testimony to go uncorrected and that the state deleted and withheld evidence that would have proven my innocence.” Dot dot dot. What did you want to say about this?

[00:11:25] Larry: I feel, I feel bad for him, but we’re trying to use this as an educational moment for people.

[00:11:30] When he says there’s no DNA, no rape kits, no physical evidence whatsoever. The state relied heavily on their witness testimony. Well, that’s, what’s permitted in our system. There’s no requirement anywhere, constitutional or otherwise, that there must be forensic evidence. If you look back on the founding of the Republic, we didn’t have anything that were resembled rape kits or DNA. Or for forensics analysis in those days. And we relied for convictions on mostly people being seen and observed by others of what was being, what they were being accused of. And the courts and the juries evaluated the credibility of those individuals. In the arena of sexual offenses, the courts have been mandated by legislation to make it very difficult for you to challenge anything that the accuser says because the accuser is being revictimized, if you actually, if you actually confront them, yes. The only crime I can think of where that is the standard and every other crime, if you claim you’re, if you claim you’re embezzled, that you’ve lost a bunch of money, the first thing that they demand of you as evidence that you had anything to start with.

[00:12:48] Larry: You know, you have to come up with journals and videotape or nobody uses tape anymore. But video clips of something that identifies that a crime actually occurred. But in the case of this offense, the statutes have been largely amended to where no such evidence. In fact, they’ve even been more sinister than that.

[00:13:09] They’ve put in the statutes that no other evidence is required. So that gets, that gets to be read to the jury. That that no other evidence is required. So, he’s when he says there’s no evidence, there was evidence, there was evidence of the

[00:13:22] Andy: Physical. Yeah, yeah, yeah, yeah. Brenda asks is how, like, can you, what do we know about those known false claims that he makes?

[00:13:30] I mean, how, how would you prove that the prosecutor knew that they were false testimony?

[00:13:34] Larry: I mean, that’s a good, good question. And what happens is that if you’ve ever talked to your defense attorney, your defense attorney, if you tell them what you did, they will tell you, I cannot allow you to get on the stand and say anything contradictory to that.

[00:13:48] You’ve heard that before, right?

[00:13:50] Andy: I believe so. Yeah.

[00:13:51] Larry: You’ve heard that. You’ve heard, while the prosecutors that they do know such admonishment. But they know that police officers get on the stand and they tell exaggerated truths all the time. And sometimes they tell incredulous stories, and versions of stuff.

[00:14:07] But he has to prove, the burden as a convicted person, now he has to prove that they withheld evidence. He has to uncover the withheld evidence and show that it would have altered the outcome. There may be evidence that that’s withheld that would have changed the outcome, and people get obsessed over that. So, he’s got to first prove that there’s evidence that that would have been exculpatory, that would have been relevant and, and that the prosecutor withheld it, that they had at that time. And the false testimony, that’s going to be a tough one. Is he going to be able to get people to admit that they committed perjury? That never goes anywhere either because.

[00:14:43] Andy: I can’t imagine anybody would admit to it. Yeah. Cause those people then when some kind of prison, hot water.

[00:14:48] Larry: But not only that, when you admit that you gave false testimony, then you are an admitted liar.

[00:14:54] Andy: Correct.

[00:14:55] Larry: And at that point, the question turns on you. And they say, okay, so you are an admitted liar, correct? You’re saying, no, I’m not. I said, well, wait a minute. You’re telling a different story today than what you told on the witness stand two and a half years ago. So, since both stories cannot be true, which one is true? Well, of course the answer is to what I’m saying today. And then they say, but you’re an admitted liar. So why should we believe anything that you said that well, how can we put any faith in your testimony? That’s the way it goes down.

[00:15:30] Andy: I want to back up. I’ll ask him my question in a second.

[00:15:34] Larry: So false testimony. That’s going to be a really tough one, and he’s on the position, he’s going to have to prove that there’s perjury or false testimony.

[00:15:42] Andy: Okay. Okay. So, but when you go to court the first time, the burden of proof is on the prosecutor. And you’re saying that when you try to, I guess your expression is take a second bite at the apple, if you try and go back, you, you have the burden of proof to prove these allegations of misconduct and whatnot?

[00:15:57] Larry: Because you’re now the convicted person.

[00:16:01] Andy: So for you to get something reversed, overturned, you have to then prove that the prosecutor lied, that the evidence was prosecutorial misconduct. The evidence was not legit and all that stuff.

[00:16:12] You have to go prove that. Got it. That’s a pretty high hurdle to cross. Yeah.

[00:16:16] Larry: It’s, it’s very, very high. Now, if you can prove that there was relevant exculpatory evidence that the prosecution had at the time and that they withheld it, that’ll get you a long way.

[00:16:25] Larry: If, if he, if he can show that, but he’s got to show what the evidence was and how, how was relevant. I mean, you can come up with anything that you could imagine that people say, well, my lawyer could have done this. I could have done that. Well, they could have done a lot of things, but, but he’s saying that there’s withheld evidence.

[00:16:40] Larry: What evidence was withheld? He can write us back and tell us because he’ll get the transcript. What evidence was withheld in particular and how would it have altered the outcome?

[00:16:51] Andy: I have, I guess I’ve heard from miscellaneous court transcriptions that yes, there was something of withheld or prosecutorial misconduct, but it wouldn’t have changed the outcome.

[00:17:03] So somebody has to then go make that decision that, yes, it wasn’t 2:00 PM. It was 7:00 PM, but that wouldn’t have changed the outcome of the case.

[00:17:11] Larry: That is correct. And misspeak in testimony doesn’t constitute perjury or wouldn’t change the outcome. And there may be, there may be like a surveillance log was withheld. They had you under surveillance and they withheld their surveillance log, and it would prove that you were at a certain place at a certain time. And you couldn’t have committed the murder. Now that would be a piece of relevant information that would potentially change the outcome. If governmental agents had you under surveillance, and they found you, and that was withheld by the prosecution because it would have sunk their case. But if their surveillance log revealed nothing other than you drank yourself to a stupor 10 minutes before the crime occurred, I mean that wouldn’t, that would not change the outcome. So that surveillance log withheld would not be nearly as relevant at all that, but he really needs good legal advice to take this evidence and find out if he has any hope, because of how post-conviction works in Ohio, we wouldn’t have any idea. And that’s where this letter originates from. We wouldn’t have any idea about that stuff if we couldn’t give it advice, even if we did.

[00:18:18] Andy: Okay. Well, all right, then let’s move along.

[00:18:22] So it goes, “Hello. I was wondering if you could possibly help me out. I’m going to parole from Illinois department of corrections to the state of Arkansas.

[00:18:32] I’m going to go live with my mom and her boyfriend. I would like to know if you people would be so kind as to send me all of, any of the PFR laws and the registration laws for Arkansas.

[00:18:47] Larry: Wow. That would be when he says all the laws, I guess he means all of it. Every sexual offense. Well, that’s not feasible to do now.

[00:18:57] I’m hoping that the day comes so when we can actually send the statutory schemes which could be 20, 30, 40, 50 pages of stuff all at once. What I find interesting is when we send those, when I, when I’m in a good mood and actually send someone the registration and entire registration statute. Okay. They write back and say they had no idea that there was as much to it.

[00:19:16] Yeah. That was 44 pages or whatever.

[00:19:17] Andy: Yeah. They thought it probably the, it was just like five bullet points or something.

[00:19:21] Larry: So but, but in terms of his, we don’t know enough about, or at least I don’t know enough, I don’t know about y’all don’t know enough about getting released from the Illinois department of corrections.

[00:19:32] What we do know is that there’s a lot of litigation for people being held in who are eligible for what they call mandatory, supervised release, their MSR that the prisoner review board, and that has to approve their housing. And they never approved the places because of some proximity restriction.

[00:19:50] So people stay in Illinois department of corrections way beyond their release date. We know that. But when he goes to Arkansas, if he’s able to make that connection to Arkansas, if Illinois first will allow him the opportunity to apply, and if Arkansas accepts him, if his proposed residence doesn’t violate one of their restrictions, if he manages to get to Arkansas, in some regards, it would be better.

[00:20:14] The registry is better in Arkansas as it exists right now. I think their legislature in session right now. I don’t know if at the end of the session, if it’ll change, because they’ve been trying for a few years to change the risk-based system that they have. But in that regard, and after 15 years, he could file a petition to be removed, assuming in the next 15 years, the law doesn’t change. I don’t believe that process exists in Illinois. So he would be better off under Arkansas’ registration. And in terms of the supervision, I don’t think it’s going to get much better in Arkansas. I think it’s going to be very similar because they’re obligated to follow everything that Illinois has, plus they’re allowed to put conditions consistent with how they supervise PFRs at Arkansas. So he’s got to bring every condition of his supervision for Illinois with him, and he’s got to pick up whatever they impose, if anything additional.

[00:21:04] Andy: Jen just added a little anecdote. So is that they passed two horrible hate laws in Arkansas this week, which without any details, I don’t know what they did, but Brenda also points out that maybe this individual’s family could go check out the NARSOL Wiki, and that, that would be the Cliff Notes version of the statute for the two states.

[00:21:23] Larry: Oh, that would be a good idea. And then I want to just make one other observation and, and very few people choose where they’re born and we’re not reading the second paragraph or the third paragraph, but he says that he was charged with a sexual abuse victim 13 to 17, and he was 16 and she was 13. And then he was 19 she was 17. If you live in a civilized state like mine, neither one of those would have been a crime as long as it was consensual, because we do not prosecute 16-year olds for having consensual sex with a 13 year old. So we do not prosecute 19 year old individuals for having consensual sex with a 17 year old. Now that’s the whole contingent. It had to be consensual, but of course we’ve got a four-year age bracket. So 19 is less than four different from 17. So no prosecution on that. And 16 to 13, there’s a less than four years. And they’re both juveniles. We don’t prosecute that. So if you had had your parents in New Mexico you wouldn’t be in this position because we don’t do that here.

[00:22:26] Larry: So, but unfortunately he’s got he’s got failures to report and I think that’s gonna change the alteration on my previous comment about him getting discharged in Arkansas. They’re going to be really reluctant to let him off registry, even if the law doesn’t change in the next 15 years, because he’s got failures to register.

[00:22:42] Larry: If I’m the prosecuting attorney of whatever county he chooses to live in Arkansas, the first thing I’m going to say is that this person’s had difficulty complying with registration. Judge, you can’t let him off. That’s what I would say. If I can think of that, trust me. They can think of that.

[00:22:57] Andy: All right. Let’s do at least one article. And this one came by the way of one of our long-time listeners and patrons. And it says, “Former Missoula man sues over outdated sodomy law convictions, a sex offender requirement.” And this comes from KPVI, wherever that is. I don’t know what that, I guess it’s Missoula, which is Montana, but you wanted to highlight one particular paragraph if I can find it. It says “However,” no, wait. Nope. Not that however. However, no, not that, however, there’s another, however, I think I went too far there, you know this is the trouble with doing, Oh, there it is. “However, in 2005, the Montana state legislature changed the law so that anyone required to register as a PFR in one state had to register as an offender in Montana. And Idaho, unlike Montana, still has a law against sodomy and oral sex and requires people convicted of crimes to register as PFRs under its crimes against nature statute.”

[00:23:52] That doesn’t really comport with what I understand a crime against nature, but that’s just how I understand it.

[00:24:00] Larry: Well, I feel, I feel bad about this because the person could end up with a very textual interpretation. Like we’ve talked about out of Nebraska, when a person moved from Colorado and they had very similar language in their statute. Now that was a state court, that was a state decision. And the person was charged with violating the registry. Is this person being charged with violating the registry or did he file a declaratory judgment action? Is it clear in the article? Because I just did a skim read of the article.

[00:24:29] Andy: Yeah. I didn’t read much about it either, so I can’t answer that myself.

[00:24:32] Larry: So well, if he filed a declaratory action, it will permit him to bring forth the evidence that would not be necessarily opportunity for if he’s being prosecuted in a criminal case. Some people just insist on using the wrong vehicle.

[00:24:51] Larry: But if he, if, if he I’ll actually, it just says it right here, he filed it. He’s in, he’s in federal court there’s a 1983 action. So he’s filing, he’s doing the correct thing. He’s filing a petition, he may get a different outcome in federal court because the federal court first is bound to follow the state law. But if he can put forth some constitutional claim about equal protection, he might can prevail. But if he were to take this, if he had taken us into state court, which is probably why he didn’t file as declaratory action in state court, he would, he would likely end up with a similar decision that came out of the Nebraska Supreme court.

[00:25:24] They’re going to ask him, you are a person, right? Well, yes. You did, you do have to register in your state of Idaho, correct? Yes. Well, it’s black letter law. It says right there that you are covered under Montana’s law. If you’ve got a problem that goes legislature, that’s what, that’s what a textual interpretation would be.

[00:25:41] If you look at that very issue in Nebraska where the issue was, whether juveniles would have to register, Judge Richard Koph, a federal judge, was trying his best not to require people to register. And he was using some, he was inventing the, the intent. He was putting some of that intent into the decision, because he says, well, we don’t register Nebraskans that are convicted as minors, therefore it stands to reason that the legislature didn’t intend to register juveniles from out of state, but the Nebraska Supreme Court said nope, they could have said that. They could have said any person other than a juvenile who was convicted out of state. They didn’t say that. And our robes do not entitle us to insert that into the statute.

[00:26:24] Just because the federal judge has the black robe, he’s not entitled to insert that into the statute. In fact, he cannot do anything unless you can prove there’s a constitutional violation occurring which permits the invalidation of that law. If he can enjoin the state of Montana for him applying that law to you. But, but you’re in an uphill climb because the law says what it says what it does. Most people, when they say they’re for textual interpretation, that’s actual interpretation. You’re covered.

[00:26:53] Andy: Charles’ comments, but he is registering in Montana for a crime from Idaho that wouldn’t be a crime in Montana. Does it matter?

[00:27:01] Larry: Doesn’t matter. It’s a civil regulatory scheme. He’s not being charged. Of course he has. He has the requisite definition that subjects him to the scope of the regulatory scheme. And I mean, that’s an argument he can make and I’m sure he will make it. He will say that I would not be a crime here, but, but that’s not going to be the analysis.

[00:27:21] Larry: If it’s the textual judge, the textual judge is going to say, well, let me ask you again. Are you a person? Yes. Did you move here from Idaho? Yes. Did you have to register an Idaho? Yes. Okay. Where’s your beef?

[00:27:37] Andy: And just as a final note, the ACLU is assisting him.

[00:27:43] Larry: All right. That’s really amazing. They generally don’t get involved in these things.

[00:27:48] Andy: Are you ready to move on to the main event?

[00:27:53] Larry: Do we have a main event tonight?

[00:27:55] Andy: Well, I mean, I guess these two cases that you put in here are the main event.

[00:27:59] Larry: Wow. We’re going to talk about, are you ready? What did you put in here?

[00:28:03] Andy: I know, right? So you, you, people put in a couple of, one is a Torres versus Madrid. We’re going to sue the whole, like the whole country in Madrid or the city. What’s the city, I guess it’s Spain, Madrid, that was decided by the US Supreme Court on March 25th. The other is called Minnesota vs. Francios Momolu Khalil. I’m totally botching these words up, which was decided in Minnesota Supreme Court.

[00:28:26] I glanced Larry, I didn’t read. I glanced and I can’t really see the relevance of the case and I’m really struggling with the other one. So what are we going to do with these?

[00:28:35] Larry: Which one can you not see the relevance to?

[00:28:38] Andy: Either. How about that? So which one do you want to cover first?

[00:28:41] Larry: Oh, well, they’re both relevant, but the one that’s going to take up the most time is the Minnesota one. So let’s do it first.

[00:28:49] Andy: Cool. Then according to the court’s opinion, a female referred to as JS was intoxicated after drinking alcohol and taking a prescription narcotic. She went to a bar with a friend, but was denied entry due to her intoxication. The appellant, Mr. Khalil approached JS outside of the bar and invited her to accompany him to a supposed party at a house. Like that story’s never been played in a movie and it went South before. After arriving at the house, JS passed out and woke up to find Khalil penetrating her vagina with his penis. Since we all know that the accusers don’t lie, it sure seems like rape to me. And why is this here in the program for tonight?

[00:29:28] Larry: Well, it’s not quite that easy. As the court noted, the question is whether Khalil’s conduct is third degree criminal sexual conduct under Minnesota law. And under Minnesota law, that is the sexual penetration with that other person when the perpetrator knows or has reason to know that the complainant is mentally incapacitated.

[00:29:50] Andy: I got ya. Yeah. And you, and your super focus on nuances in laws. Everyone knows that if a person is intoxicated, that they are mentally incapacitated. But God Larry, that would be, that would be squishy because how intoxicated are you?

[00:30:06] Larry: Well, I’m not so sure that we can agree on that. As the court pointed out, the decision turns onto the meaning of the mental incapacitated as defined in Minnesota statute.

[00:30:14] And you guys need to look up Minnesota statute, 609.341. The statute provides mentally incapacitated means that a person under the influence of alcohol or narcotic, anesthetic or any other substance administered to that person without the person’s agreement, lacks the judgment to give a reasonable consent to sexual contact or our sexual penetration. Specifically, the court was tasked to determine whether the phrase “administer to that person without the person’s agreement” applies to alcohol.

[00:30:44] In other words, the court had to decide where their person can be mentally incapacitated under the statute when the person voluntary ingests alcohol. That’s what this is about.

[00:30:57] Andy: Didn’t we say before that she took the narcotic on her own, correct? Didn’t we say that? Yep. Then I’m confused on why there’s even a question.

[00:31:06] All right. “The court seems to be out of touch with the reality of rape. How is it that they can simply turn a rapist loose on some ridiculous technicality? Let me share some of the facts from the decision, which parties do not dispute. JS, she traveled with her friend SL to the Dinkytown neighborhood of Minneapolis.” Who the hell names a town “Dinkytown” , Larry? — “with a friend and attempted to enter a local bar. She was denied entry by the bouncer because she was intoxicated. Shortly thereafter, Khalil and two other men approached GS and SL outside of the bar, invited them to a party. Khalil then drove the group to a house in North Minneapolis arriving in the early morning hours of May 14th, 2017. There was no party at the house.” Duh! “SL testified that after walking into the house JS immediately laid down on the living room couch and soon fell asleep. JS testified that she blacked out due to intoxication shortly after arriving at the house and did not clearly remember lying down on the couch. JS woke up sometime later to find Khalil penetrating her. She said, ‘no, I don’t want to,’ which he replied, ‘But you’re so hot and you turned me on.’ JS then lost consciousness and woke up at some point between seven and 8:00 AM with her shorts around her ankles. She retrieved a cell from another room and the two called Lyft and left the house. During the ride JS told SL that she had been raped. Later that day they drove to Regions Hospital in St. Paul to have rape kit. However, there is not a crime.” Oh, excuse me. “How is there not a crime here?”

[00:32:29] Larry: Well, we’re not saying there’s not a crime here. There was a crime here. Not even the court said that. What they said is that the law did not recognize voluntary intoxication as rendering a person mentally incapacitated.

[00:32:41] Larry: That’s what they actually said. And it’s important to point out right now that there was a less serious charge that the prosecution could have chosen, which would not have resulted in this outcome had they chosen that. The state chose to charge him with the more serious charge when they could have used the less serious charge. And unfortunately they appear to be headed towards defeat on this. And that’s what happens when you’re not happy for a conviction. So, ah, I guess you wonder why they, why they didn’t choose the other charge, right?

[00:33:17] Andy: Yeah, definitely. Why didn’t they do that?

[00:33:19] Larry: Well, because it was only a gross misdemeanor, rather than a felony.

[00:33:22] Andy: Of course. Well can we stop right there? Tell me about gross misdemeanor versus just misdemeanor.

[00:33:26] Larry: I don’t, I don’t know. It’s probably the high level of misdemeanor. We call it high misdemeanor here. Right? So it’s probably a more serious misdemeanor. But, but for the first offense for that, it would have been a misdemeanor and that would not have satisfied the victim nor would it have played well in the community. And in fact, that’s one of the reasons why we actually have negotiated pleas. Had the state charged the proper offense, they probably would have gotten a guilty plea, which would have meant some level of accountability. And I think registration as well. I think that’s on the list. We’ll have, we can have one of our patrons from Minnesota, tell us if we’re wrong, but I think that’s on the list.

[00:34:01] Unfortunately, some cases are just too political, which makes it impossible to offer a reasonable plea. Okay.

[00:34:07] Andy: This, this is super gray area. I mean, I was having a conversation with someone about this yesterday. Where if she didn’t consent to it then, and he did it anyway, then like that there’s no gray area there.

[00:34:20] However, she put herself in the stupor that she did. So then does everything that happened to her from that point forward because she put herself in the stupor, then she’s just like, everything else is not, her is not anybody else’s fault. They could have robbed her. They could have done all kinds of things if —

[00:34:39] Larry: That’s not what the court’s saying here, that’s not what the court’s saying here.

[00:34:43] Andy: It sounds like the way that the law is written because she is self-inflicted on the stupor, the drunken stupor, that it’s not rape.

[00:34:52] Larry: That’s not what they’re saying.

[00:34:54] Andy: Okay. Then, then that would go, why I’m still confused. She was intoxicated and the parties agree. What’s the problem? You cannot have sex with an intoxicated person.

[00:35:02] Larry: Well, the issue is that the state, the statute required that the intoxicant be administered against her will and the state did not assert that it was nor did the evidence support the notion that was the case, that it was without her agreement. There just simply wasn’t any evidence to support that.

[00:35:18] Larry: Now they’ll all on the other hand. The guy called Khalil does not dispute that there is sufficient evidence on the record that he knew or had reason that JS was under the influence of alcohol. The course of session, and this appeal is centered on whether the legislature’s definition of mental incapacity includes a state of mental incapacitation caused by the consumption of alcohol, voluntarily or not, or whether it’s limited to the circumstances for the state of mental incapacitation results from consumption of alcohol administered to the complainant involuntarily, without her agreement, which is what the statute requires.

[00:35:50] Larry: This is what the statute requires the court to do. The court didn’t write the statute that says that that’s what’s required.

[00:35:59] Andy: No, of course not. Of course not. I, I hadn’t really ever considered how this would go down. Plus I don’t, even if there is a rape kit, you still have a “he said, she said,” so there’s obviously they didn’t, in the docs here, I didn’t see if, did the rape kit come back and say there had been activities going on?

[00:36:16] Larry: Oh, well, they already stipulated that there was sex.

[00:36:18] Andy: Okay. Okay. Okay. But, so then you’re just down to a “he said, she said,” he’s saying she was ready to go. And she says, I didn’t say that. But if her friend was there, Larry.

[00:36:28] Larry: But we’re not down to that, that’s not at issue here. The issue is that the statute required that it be involuntarily administered to her.

[00:36:38] Andy: Right? So like date rape. Somebody spiked her drink. And that’s how she became incapacitated.

[00:36:44] Larry: Correct. Incapacitation is not recognized under the statute unless it was, unless it was involuntary.

[00:36:50] So, he didn’t write the statute. The court didn’t write the statute. The legislature did.

[00:36:55] Andy: Yeah, of course, of course. Which is represented by the people. Man, I’m with you. Okay. But like, so you’re always hell bent on reminding people about textualism is not necessarily good or bad. So is this an example of where textualism is a good thing?

[00:37:09] Well, I don’t know if I would say it’s a good thing, but this is certainly an example of textualism. This is the purpose of statute. This is what the court said. The purpose of statutory interpretation is to ascertain and effectuate the intention of the legislature, and our deference to the intention of the legislature is due not only to Section 645.16 from the legislature itself, it also reflects a structural understanding that legislators, or elected representatives of the people, and the legislative bodies are institutionally better positioned than courts to sort out conflicting interests and information surrounding complex public policy issues. That’s on page nine, between nine and 10 of the opinion.

[00:37:49] Larry: If the legislature didn’t intend to have that prohibition in there that incapacitation that was voluntarily administered didn’t count as being incapacitated. They should have not put that in the law. Correct. So, you don’t like legislating from the bench, do you?

[00:38:12] Andy: I don’t think that they should, but of course there are times when we would do want. Brenda has the same question that I was just coming up with. It says, do you think that the legislature will now go in and change the law?

[00:38:23] Larry: I do believe that will. And it’s I think that it won’t take them very long.

[00:38:27] Will this wait til next year to go down the path? Are they still in session? Does this happen this year in some kind of emergency session?

[00:38:35] Larry: I don’t think they’d call it a special session for it, but, but if they’re in session, this is, this is certainly gonna be introduced if it’s not too late and that they have to fix this, but the victim’s advocates will not let it go.

[00:38:49] Andy: Yeah, sure. Is what the court did was to render textual interpretation and punt to the legislature. Is that, do you think that’s, that’s a fair way to word it?

[00:38:57] Larry: Well, I guess that’s one way of looking at it. They did their job. They looked at the law and they applied the law unanimously. That was not even a single dissent in this decision.

[00:39:09] Andy: Through the time of doing this podcast, I have come to the conclusion that I believe that we want them to be textualist. Of course there are times when we don’t. But if we were not competent, and I mean, we, as in the, you like literally like the lay people and we don’t go deal with our legislators and we are not competent in who we vote for, and when there are, this is a lot of work, Larry, but these laws are really important and how they impact our lives. And we need the language to be hyper-specific about what they do and don’t do. You had me watch a video yesterday and I like there was a, they were focusing on these like one and two and three words of how this bill was being written. And they matter in the outcome of things.

[00:39:52] And if this is not what we, the people wanted the legislators to do, then we would want them to go change it. We don’t want the judges to go behind them and go, well, no, this is probably not what they meant. We don’t know what they meant. We know what they wrote.

[00:40:06] Larry: That is correct. And courts typically do everything they can to discern the intent and to apply it as it’s written, if possible.

[00:40:17] And sometimes they’ll go beyond the written words and they will, they will contour a statute to they can drop a word from it to make it constitutional. But most courts are very hesitant to fix policy. This is, as a self-governing people, you have the right to impose ridiculous policies on yourself.

[00:40:35] Andy: Correct. Right.

[00:40:36] Larry: A part of self-governance. If you want to do that, and you’re happy electing people who put you in a restrictive state of things that you don’t like, and you continue to elect them, that’s on you, not the court. That’s on you.

[00:40:49] Andy: We can make jaywalking a felony and make people get executed for a felony jaywalking. We can do that.

[00:40:56] Larry: I don’t know if we could, if we could actually get that to pass, but you could make it a much more serious crime. And I know that that’s your prerogative to do that.

[00:41:05] Andy: I’m making a super extreme example that I’m doing that on purpose too, because we could do that if we really, really want it to, I know, I know you’re saying it would never pass, but if we really were hell bent on doing it and it could pass and make it through it, we could make it that you jaywalk and you die. Does the state appeal or do the charges get dismissed? What happens?

[00:41:21] Larry: Well, the state really can’t appeal this as this is highest tribunal of the state and the charges do not get dismissed either. The case is remanded to the trial court and the state will have to make a decision now, if it can overcome the previous testimony that there was no — I mean, they can’t overcome the previous testimony. But if they have to make a decision now, if they want to offer this person a plea bargain, because there’s no way they’re going to secure a conviction on this offense, the same evidence is going to play out the same way.

[00:41:50] Larry: You know, the statute says what it says, the highest tribunal in the state has ruled that it was a voluntary intoxication. Therefore, she’s not mentally incapacitated as required by law because it was not administered against her will. So they cannot prevail on this of this statute. So they’re going to have to offer him a deal and the deal has got to be time served and he’s going to go free.

[00:42:15] And that’s going to drive the publicity in Minneapolis and Hennepin County. It’s going to go off the chart bonkers about how a rapist is going free, and that will put immense pressure on the legislature to fix this. If they, if they have, if they have the ability to do it this session, because this is a travesty of justice in the eyes of most citizens.

[00:42:34] Andy: Okay. Anything else? God, you come up with really interesting ones. I’ve never considered that the way that the language in this bill works is that if you did it to yourself, then sorry, like what happens to you is your fault.

[00:42:50] They didn’t say that. I wish you would quit saying that. They did not say that.

[00:42:54] That’s what it sounds like.

[00:42:55] Larry: It does not say that. They said they couldn’t convict him of this more serious charge that requires a different level of proof. I just got through telling you the charge that they could have convicted him of. Right. I don’t know how that goes free. I don’t know how you keep saying that.

[00:43:12] Andy: Cause that’s what it said. That’s what I thought, Larry. I’m still back to it’s if she did it to herself,

[00:43:21] Larry: It says that that’s equivalent to a premeditated first-degree murder and a non premeditated murder. Yes. The person is dead. They’re still just as dead. Sure. But the elements of the offense are different, and the penalty is different.

[00:43:38] This offense that they charged him with is a more serious offense and it required a different level of proof. They had an offense on the table they could have used, but it wasn’t glamorous and glitzy enough and it wouldn’t have played well. And they’ve rolled the dice and they steam rolled and they got the jury instruction just the way they wanted it to convict.

[00:43:57] We didn’t go into all the nuances. They got the jury instruction the way they wanted it, which just the mere fact that she was intoxicated was enough. And that was not what the law said. The mere fact she was intoxicated was not enough to render her incapacitated under this particular statute. And, but that doesn’t translate to, there was no statute that held him accountable. There was. The state chose not to use it. They will use it now because that’s all they have.

[00:44:23] Andy: Right. Okay. I gotcha. Okay.

[00:44:27] 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: registrymatterscast@gmail.com. You can call or text a ransom message to (747) 227-4477.

[00:44:49] 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 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.

[00:45:15] Andy: Before we jumped, we wanted to acknowledge Charles in the state of Indiana, Indiana. Excuse me.

[00:45:21] Larry: Yes. Charles wrote us a nice letter and we’re not going to read it because it’s too long. But he was sharing with us about the State vs. Wallace case from back 15 years ago, and about the unconstitutional. He was replying to the decision out of Wyoming and he was suggesting that Wallace should be looked at. And Wallace of course is not binding in Wyoming. And the registration requirements are different from what was being challenged in Indiana. So just because one state Supreme Court finds one registration statute unconstitutional does not magically translate to another state’s registry being unconstitutional because the levels of disabilities or restraints are different.

[00:46:02] You could never win a disabilities or restraints challenge in Vermont, there are no disabilities or restraints imposed. So it’d be difficult for you to prevail on all of that components of the analysis. But we do appreciate the letter because there are things that we sometimes don’t know about. So, so it doesn’t hurt to have it. But anyway, we, we are aware of that case.

[00:46:21] Andy: What is a pipeline to get that kind of — do people just write to NARSOL and miscellaneous others and post them on different blogs. Like, do you think that stuff, how often do you think that that stuff gets missed?

[00:46:33] Larry: Well, it doesn’t get missed very often, but occasionally there may be something that we have overlooked that might be relevant. This case has been out for a long, long time and it’s cited all over the place. So we’re aware of it.

[00:46:44] Andy: I guess it’s the benefit of having, what, 10 years wait, probably what 12 or something years for NARSOL.

[00:46:52] Larry: I can’t even keep track of it.

[00:46:55] Andy: Jeez, man, you’ve been around since time began practically.

[00:46:57] You were there when they invented sand. So I guess you ready to jump over to the other case?

[00:47:03] Larry: Let’s do it cause we’re gonna, how are we doing on time? Yeah, we’re running short on time, so let’s do it.

[00:47:07] Andy: Why do you feel that this was worthy of the very premier FYP time?

[00:47:13] Larry: Well, that’s worthy of our time because it presents a real-time opportunity for us to draw the parallel to Smith vs. Doe to this decision that was just decided. Now would you please recite the name of this decision for all of our people in prison who want to know what we’re talking about?

[00:47:31] Andy: All right. Well, this is the Supreme Court of the United States Torres vs. Madrid et al. Is that enough? Or do you need me to go for more?

[00:47:39] Larry: That is enough. Okay. So the reason why this is relevant well, you can, you can tell me, I think, I think you have an idea about it. What were you thinking after you read it?

[00:47:49] Andy: I mean, it was decided by summary judgment so that we can go there first. Can you remind me of what the good, the bad, the ugly and all that stuff is of summary judgment?

[00:47:57] Larry: Yes. That’s why I put it in here because I want to do the parallel to Smith vs. Doe. People have so much anxiety about Smith vs. Doe and that the “alarming and frightening high” recidivism.

[00:48:09] So summary judgment is a vehicle to avoid going to trial. And it’s appropriate when there are no facts in dispute, and one or both parties believe that they’re entitled to a judgment as a matter of law.

[00:48:23] And in other words, in summary judgment, there’s no trial. You do your pleading. You’re the party that’s bringing the action does their brief, the other party responds with their brief. And then you do your reply in support. You do your depositions and you do everything you can to develop your case. And you, you say, gee, we don’t need to go to trial. This case there’s nothing here to decide, the facts were undisputed. Well, the pitfall of summary judgment is that sometimes there are issues that were in dispute. And when you have a decision or that where there, or there things where the court could have better developed in a trial, all the doubt goes in favor all of the non-moving party.

[00:49:09] Larry: So in the case of Smith vs Doe, the challenger was the one who filed for summary judgment, because he said, well, you know, we don’t need to spend a lot of time with court. I don’t want to have to register. This is crystal clear is ex post facto. They’ve passed a law that they’ve applied to me which didn’t exist when I was convicted. End of discussion. And the state of Alaska said, well, not so fast. You know, it’s a civil regulatory scheme. And we would argue that there are frighteningly high level of recidivism among PFRs. And he turned around and said, so what? Say it all you want to, you just can’t do this to me because of ex post facto.

[00:49:47] And so all the benefit of the doubt accrued to Alaska because their defense was never tested. There was no evidence taken. So the frightening high recidivism was a fact that was handed to the Supreme Court by the agreement of the parties, which is what makes this case relevant. Because it’s a case cited by summary judgment, which goes the opposite direction.

[00:50:11] So that’s why I put it in here.

[00:50:12] Andy: Okay. And I mean, we we’ve covered that quite a bit lately with the Butts County thing of, one of the things that would have been in dispute is, is that, is that particular part of your property right-of-way. We needed experts and whatnot to go in and decide is that actually right-of-way that the sheriff can go drop signs down. That was a fact that was in dispute, if I recall correctly.

[00:50:31] Larry: That is one fact that it may become, the way the case was briefed on appeal, it may turn out that that’s less relevant. We’ll have to wait and see. But yes, that was, in my view, an important fact that was not developed.

[00:50:41] Andy: Then moving into this case specifically, what are the issues here? And can you please clarify and connect those dots?

[00:50:49] Larry: Well, let me just read from the opinion a little bit, so people know what the case was about. And it happened in New Mexico. “At dawn on June 15, 2014, four New Mexico state police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white collar crimes, but also suspected of having been involved in drug trafficking, murder, and other violent crimes.

[00:51:12] “What happened next is hotly contested.” And then I’m still reading. “We recount the facts in light most favorable to petitioner Roxanne Torres because as the court granted summary judgment below to officers, Janice Madrid and Richard Williamson, the two respondents here.” That you can find that on page one of the opinion.

[00:51:35] So, so again, remember the lady that got shot, the police shot her once she did not stop for them. She said that she felt they were carjackers. She said that she did not identify them as being police officers. And she was fleeing for her safety. The police of course said they readily identified themselves, that anybody would have known they were police officers and that she didn’t stop. So they shot.

[00:52:05] Well, remember, since this, with summary judgment, the court has to assume that her version is the correct version. So the facts that the Supreme Court were handed in this case was that she did not know that they were police officers and the attorneys on behalf of the officers gave the court those facts by moving for summary judgment.

[00:52:28] So they conceded and consented to that being a fact. So whether or not she knew there were cops is irrelevant. Okay. Because all inferences and benefits of the doubt or are going to the non-moving party. She didn’t want summary judgment. She wanted her case to go to trial. And it didn’t go to trial at the officer’s instigation because they said, wait, all the different things that it would take two podcasts to cover all the things they said in this case.

[00:52:55] But, the point I was trying to connect the dots on is that the Supreme Court did not decide that the officers, that she thought that they were carjackers. They didn’t decide that. Officers Madrid and Williamson handed the court that fact by moving for summary judgment.

[00:53:14] And if you’ll look at it that way, that’ll help you understand what happened in Alaska. The court didn’t decide that recidivism was high. They merely accepted the fact that the challenging party, Doe, handed to them. He said, Go ahead and give me a judgment as a matter of law, it doesn’t matter what they’re saying if their defenses might be because you just can’t do this. And the court said, well, no, actually they can do this as long as it’s done in a civil regulatory way. And it doesn’t impose any disabilities or restraints and blah, blah, blah. And, they mentioned that fact now, I suppose they could have just not even cited to that fact, but it was a fact established by our side. We gave the court that fact.

[00:53:54] Andy: Thinking back to that time, if that Kennedy Mendoza Martinez is that the disabilities and restraints, is that where that comes from?

[00:54:02] Larry: That’s the seven factors from a 1963 case called Kennedy versus Mendoza Martinez.

[00:54:07] Andy: Had we presented that side of the disabilities and restraints to that whole court process, this may not even be where it is today because of that, just hypothetically, us presenting that side of evidence to bring it to trial and all that stuff.

[00:54:23] Larry: Well, I don’t know that I, I don’t think there were enough disabilities or restraints that they looked at. They did that test, that there wasn’t enough disabilities or restraints at that time so they would survive that test.

[00:54:32] Andy: Correct. And I’m with you because there was no living restrictions. There was really no internet really to speak of in 2003 or whatever. So yeah, like you just had to go visit the Popo annually and go get your picture and fingerprints or whatever. Whereas now —

[00:54:45] Larry: You had to mail that form back then.

[00:54:49] Yeah, because in Alaska you could be 7,000 miles away from your local Popo. But you could live out there with a caribou and to take you seven days to get there.

[00:54:58] Andy: But and, and, and just to clarify one other thing, just to put a mark on it, they didn’t say any registry is okay. They said that registry is okay.

[00:55:07] Larry: That is correct. They said what was being challenged as it existed at that time did not impose disabilities or restraints. You guys can fixate on recidivism if you like. It’s a fixation that we’ll never win you a case, at least a significant case. Or you can fixate on the disabilities or restraints, which will win cases and have won several cases. And that’s what we have to do is we have to develop these cases below with factual evidence, expert witnesses, show the disabilities or restraints and what the consequences are. And we distinguish ourselves from previous decisions as we’ve reviewed on this podcast, several times we’ve shown that the challenging parties have done a good job of distinguishing the registry as it exists now against the registries as they exist the last time they were decided. I think we just talked about that last week or the week before, you know, it’s your job to challenge it, it’s your job to prove. The presumption is that the registry is constitutional until you prove it isn’t.

[00:56:13] Andy: It seems, Larry, that most of the states like sands we’ll leave out the super benign ones, but that the disabilities and restraints are, it seems that they’re easily presentable. I don’t know that you can get a case going and all that, but people can’t get jobs. People can’t find housing. The whole homeless camps that go on in Florida — those are clearly disabilities and restraints. How are they not seen that way?

[00:56:38] Larry: Well, well, first of all, your criminal record, they always argue that your criminal record is what causes you not to be able to get a job. They dispute that the registry is the cause of you not getting. So you’re going to have to bring in evidence that shows that they would have hired you with your particular criminal conviction, but for your list in all the sexual offender registry, excuse me, the sexual offense registry.

[00:56:58] Andy: You’re not “offender”–

[00:57:00] Larry: Because they registered the offenses.

[00:57:02] So when you get out of prison, remember you’re going to go in and register your offenses. But, you have to prove that, and the state will argue vehemently that you’re not getting a job because of the historical fact of your sexual offense conviction. And where’s your counter-argument? What do you have to show that? You’re going to need some expertise. You’re going to have to have some data. You’re going to have to show them that the segment of PFRs who are not listed or employed at a greater rate. And then you’re going to have to get into some picking that apart to figure out if there’s a generational difference than to people.

[00:57:35] If you’ve got a group of a cohort of PFRs that are in their sixties, well, they’re already have barriers to employment. And if you’re comparing it to a bunch of PFRs who have convictions, who were like that were adjudicated, juveniles or very young, and they got like in Michigan, they have that homeless youthful trainee act that goes up to like age 26 or something.

[00:57:52] If you compare the two cohorts or you say, well, they’re registered the ones that are registered, have all these higher rates of unemployment, blah, blah, blah. I’m going to come back and say, well, that’s true, people who are 60 years old have a higher rate of all these things anyway. So that’s why you need, that’s why you need expertise and that’s why you don’t cost them–

[00:58:10] Andy: You have to have some money.

[00:58:12] Larry: That’s why you don’t move for summary judgment on these things. You go in with a big bank roll and you develop, you imagine everything that the state can think of. And there’s been enough litigation that you shouldn’t have to be very creative to do the imagining because they’ve already put forth these arguments over the years.

[00:58:29] So you look at every argument that they put up, everything that they claim, and you have expertise ready to shoot their arguments down. Remember, it’s your job to prove. It’s not the state’s job to prove. They have the presumption that the legislative enactment is constitutional.

[00:58:46] Andy: Okay. So, this is what we were just discussing.

[00:58:49] I forget where the, I guess it was the article, the letter that somebody wrote in that they say they’re innocent, but they have already been convicted. So they have the burden of proof to prove we on this side of the fence, now that we are at the PFRs, we have the burden of proof to prove that these things are disabilities and restraints.

[00:59:07] Larry: And that they offend the Constitution of either their state or of the United States. And again, on page 10 to 11 at the Supreme Court decision, they went through all, they went through 400 years of what constituted or whether this was — the issue in this case is whether or not they actually seize the person.

[00:59:25] And the cops argued that shooting, that since they never had control of the person, she was able to drive away after being shot. They said that they never actually seized her. And the five to three majority — Coney Barrett didn’t participate because she wasn’t on the court when this case was originally heard — but it was five, three decision.

[00:59:43] And they said that at the time the shot was fired, that was a seizure. And they went through 400 years of jurisprudence from around the world and English common law and blah, blah, blah. We would spend a lot of time. But they said in concluding again, applying these principles articulated above to the facts viewed in the light most favorable to Torres, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away.

[01:00:13] We therefore conclude that the officers seized Torres for that instant and that instant the bullet struck her. So again, that’s bizarre, you hear that you hear them twice telling you that that construing the facts most favorable to Torres because she didn’t ask for summary judgment. She wanted to have her day in court.

[01:00:36] Now she’s going to get her day in court now because the Supreme Court didn’t decide on the merits. They don’t find facts. So now the case is going to go back to federal court. And I can tell you one thing they’ll do: they’ll settle now. She’s magically going to get an offer for some money, because when you shoot someone in the back and, and the Supreme Court says that your theory that she was not seized is not a good theory, there’s a good chance that they’re gonna start talking to her about a settlement.

[01:01:04] Andy: Interesting. So can, can you clarify? Cause I’m, I’m confused. I’m the one that’s dumb. They shot her. Did that constitute them seizing her or not seizing her?

[01:01:14] Larry: The Supreme Court said it did.

[01:01:16] Andy: And that’s what I thought.

[01:01:19] Larry: The five justices, there were three liberal pointy heads, joined by Justice Roberts and Justice Kavanaugh. The three dissenters were, of course the usual conservatives. This time I was surprised that I would have thought that this was something that Gorsuch would have been sympathetic to. But as I realized, it came out of the Tenth circuit, the Tenth circuit, and he served there. He may not wanted to embarrass his colleagues.

[01:01:41] So since his vote wouldn’t have changed the outcome. It still would have been it’s what — actually would have.

[01:01:46] Andy: That would have been before four.

[01:01:48] Larry: Yeah. So, that would have upheld the lower court decision. But he didn’t vote with the majority.

[01:01:53] But I continue to believe that Roberts will continue to be a moderating force on this court. And I’ve said that over and over again. And when people say that all life is, we know what’s going to come to end because you know, they’re going to throw out Roe v. Wade and blah, blah. I don’t see that happening. I think Roberts, being the institutional guy he is, and the even cool head that he is, I think he’s going to exert that influence over the court.

[01:02:22] And I think we’re going to get much more moderate decisions than what we would have gotten had Roberts not been there. You know, if he’s, he’s the best of all choices to be the Chief Justice in the current environment of what you have on the conservative side that he was from. So, Roberts is got to be what saves that court.

[01:02:40] Andy: But that doesn’t mean though, that the court has not drifted radically right. In at least in like the last decade or so.

[01:02:47] Larry: Of course it has. Absolutely. But I’m saying Roberts is saving it from going much further to the right.

[01:02:53] Andy: Off the cliff! No, I’m with you on that. And I, and I’ve heard plenty of politics podcasts that have talked about something along those lines that he is going to be that middle-ish of the road, even though it’s still, probably fairly right.

[01:03:04] But I I’m really struggling and we can close after we just talk about this for a second. How is it that shooting you is a taking of some kind? I don’t get that that is actually them doing that, by them shooting. Huh?

[01:03:18] Larry: Well like I say, five brighter people than you and I came to that conclusion.

[01:03:22] Andy: No kidding.

[01:03:23] Larry: Gone through 400 years of legal precedent and, and they said that that’s what it was. Now, you don’t want to question the court’s judgment here, do you?

[01:03:34] Andy: Absolutely I want to question them because I don’t see how that I see that they shot in the attempted, I guess. And then you could perhaps have like resisting arrest if you then run away after being shot.

[01:03:44] But I don’t get that that one is. . . Anyway. I just wanted to talk about that just for another minute. Cause that’s bizarre.

[01:03:52] Well, a seizure, that’s the word I couldn’t remember.

[01:03:55] Larry: The conservatives were very infuriated. Their dissent was very blistering. I did a half skim read of that and they were not happy at all.

[01:04:04] Andy: Interesting, very bizarre.

[01:04:06] Before we close down, I want to make sure that I offer up a reminder that we will not be here next week. I’m going out of town and you’re going out of town and it will be very challenging to record a podcast next week. So you guys get a Saturday night off.

[01:04:20] Larry: Well, I may actually may not go out of town, but I’m glad to have the week off because I’m so far behind with work that this will give me a chance to do some stuff.

[01:04:31] Andy: Very well, very well. Is there anything else before we close things down?

[01:04:38] Larry: Well, I’m hoping that we can grow our podcast transcript distribution list. We’re not getting any new subscriptions lately. So as you’ve told people, please pass them around, promote the podcast. You’re not going to get a better source, a more frequent source of information than these transcripts flowing into your prison.

[01:04:55] Andy: Definitely. What was I gonna, Oh, do you, do you want to, like, do we want to try and make that goal about me doing a certain thing that we talked about last week? If we hit a hundred patrons? Do we want to like spill those beans?

[01:05:05] Larry: Absolutely. We’ve got a challenge that if we get a hundred patrons that we’re going to have the best saxophone performance from Andy —

[01:05:14] Andy: [Laughing] Everyone in chat is screaming yes!

[01:05:18] Larry: He is going to outdo Kenny G.

[01:05:20] Andy: No, I’m not going to go there, but you — Bakersfield? Is that the name of the song? Bakerstown. Bakersfield, I forgot the name of the song.

[01:05:27] Larry: Baker Street.

[01:05:28] Andy: Baker Street. That’s what it was. Okay.

[01:05:31] Larry: Gary Rafferty

[01:05:33] Andy: In another lifetime, I was a professional musician and I still have some saxophones laying around.

[01:05:37] So if we reach a hundred patrons, you can go to patreon.com/registrymatters and figure out how many patrons we have. And when we reached 100, I will do some crazy sax solo to this song. I’ll do like a version of karaoke and play that song and play the sax solo for you people!

[01:05:56] Larry: You’re going to do the solo that’s on the Baker Street. You’re going to do that?

[01:06:00] Andy: I thought that’s what we agreed to. I don’t want to do all of the hootin’ and hollerin’ and the dancing stuff from the St. Elmo’s Fire one or whatever that was.

[01:06:07] Larry: Well, I’d like to see you doing the bobbing that he was doing and playing that sax.

[01:06:13] Andy: Oh, okay. Well, we’ll figure out what to do when we get closer to that mark.

[01:06:16] So there you go, a hundred patrons at somewhere around the 20 something mark that we need, and then I will perform a saxophone solo live on stream. And who knows whatever else happens to it. How about that? So share and spread the word.

[01:06:28] Larry: And we’re actually contemplating doing a YouTube Live taking calls and stuff maybe once every month or two or something, I don’t know, on a regular basis so that we can interact with our people, with our patrons, and our audience.

[01:06:38] Yep.

[01:06:40] Andy: Well fantastic. Larry, as always, I think it is fantastic that you joined me every week. I try really hard to find someone else, but you are always available, and I really greatly appreciate it.

[01:06:50] Voice from beyond: That is why I am here. McArthur Movie Clip

[01:06:53] Andy: And just real quick, RegistryMatters.co is the website, (747) 227-4477. RegistryMattersCast@gmail.com.

[01:07:02] And as I already said, patreon.com/registrymatters.

[01:07:05] But with that, Larry, you are the best. I appreciate it. And we’ll talk to you soon.

[01:07:10] Larry: Good night. Bye.

[01:07:14] Voice from beyond: You’ve been listening to F Y P.

Transcript of RM171: Being Shot IS Being Seized

Posted on March 29, 2021 by andy

Andy: 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.

[00:00:12] Recording live from FYP studios, east and west, transmitting across the internet, this is episode 171 of Registry Matters.

[00:00:20] Larry, we’ve definitely surpassed your age by now.

[00:00:23] Larry: We’re almost, but we still got two more years to go.

[00:00:26] Andy: A person in chat says that she is 160. So you guys are sort of like contemporaries, maybe.

[00:00:34] Larry: Oh, I’d say we’re very close in age.

[00:00:38] Andy: I mean, once you get that far, what’s a difference of 10 or 20 years at that point, you’d be basically like went to the single little schoolhouse together. You ran down the hill together.

[00:00:48] Larry: It was uphill

[00:00:50]Andy: both ways in the snow?

[00:00:51] Larry: Both ways. Yes.

[00:00:55] Andy: Anything exciting that happened to you during the week? Or do you want to dive right in?

[00:00:58] Larry: Well, I can’t think of anything terribly exciting that the audience would find amusing or entertaining.

[00:01:07] Andy: Maybe we should dive right in.

[00:01:21] Larry: If you don’t hit that like button on YouTube, every YouTube viewer, we’re going to disconnect you from this end.

[00:01:28] Andy: Perfect. We can do that too. I have the technology.

[00:01:32] Larry: Oh yeah. We didn’t get very many likes last week, but we didn’t get any dislikes either.

[00:01:37] Andy: Well, that’s good.

[00:01:38] So you didn’t say anything that anybody was really that offended by.

[00:01:43] Larry: So tonight we’re going to hear a voicemail and try to address that. And we’re going to have some letter or questions that were submitted in writing, and we’re going to read a letter and then we’re going to talk about two cases, one from the U S Supreme Court and one from the Minnesota Supreme Court. We may end up dropping the articles that we were contemplating because these cases are going to devour some time.

[00:02:06] Andy: Yeah. I thought we had already kicked them out, but we do have one that we’re keeping cause one of our loyal listeners submitted actually it looks kind of interesting to talk about.

[00:02:13]All right, well then let’s dive right in. I think he might be patron number one, an individual from Kentucky named Jeff and he sent a voicemail message

[00:02:24] Jeff from Kentucky: Happy Saturday to my two favorite podcasters, Andy and Larry. I had a question about a court case that Larry has touched on in the past. It’s called the Commonwealth of Kentucky versus Baker and it says, “The question of law to be answered is whether or not KRS 17.545, which restricts where registered sex offenders may live, maybe applied to those who committed their offenses prior to july 12th, 2006, and the effective date of the statute. We hold that it may not.”

[00:03:30] Andy: Thank you Jeff, very much. I seem to recall this going on way back in the day. This may have been pre-podcast that this was even talked about.

[00:03:39] Larry: It may have been, we we’ve talked about it, certainly have written about it. I’m gonna say “we” meaning NARSOL. And the question he asks is actually a good one. And we don’t, we don’t know the answer for sure. I didn’t thoroughly reread the case, but I remember it fairly well. And of course, courts can’t, they’re not clairvoyant. They cannot foresee the future. So the issue before them, in that case was for that block of vendors that predated the the registration statute that was in question that those prohibitions. It would be my non-legal opinion, that the same concerns that they held when they issued that opinion 15 years ago, would hold true today. What they were trying to address was the perpetual vulnerability to being asked to move, that there would be no play, there’d be no offender would be safe. And that wouldn’t, that would not have changed since then, in terms of if you, if you could force a person to move, then you would not be safe. So if you were convicted after 2009, I believe he said, then you would not be safe. That makes no more sense than what it made in 2006, none whatsoever.

[00:04:53] But as we said before, guess what? If they have passed a law that says you have to move, do you remember where the presumption is? Right?

[00:05:00]Andy: The presumption is, Oh, that you, if you were convicted before, if, if you didn’t have to do it, then you wouldn’t have to do it now.

[00:05:07] Larry: But the presumption of constitutionality, if, if the legislature —

[00:05:11]Andy: If it’s presumed constitutional, when they’ll let you know when the legislature signs it and the governor signs it, then it’s presumed to be constitutional until it’s set otherwise by a court.

[00:05:18] Larry: So since this this case that he’s mentioning, the Baker case, doesn’t apply to people after 2009, there would have to be a new challenge if they have started forcing people retroactively to leave their homes. I have heard nothing about that in all the years since this case was decided that that’s happening or occurring, or even contemplated in Kentucky.

[00:05:39] But, but if they are doing that, they would be able to do it until they’re stopped.

[00:05:47] Andy: I’ve heard that before Larry, I’ve heard that they can do it until they’re told to stop.

[00:05:51] Larry: And sometimes they don’t stop after being told.

[00:05:53] Andy: I’ve heard of that too. So it’s kind of an amazing thing. Are we are we ready to go on and start delving into this content?

[00:06:02] Larry: If there’s anything going on that we need to know about in Kentucky from Jeff, I’d be glad to hear about it and we can take it up in our next episode, but I’m not aware of anything in terms of people being forced to move.

[00:06:15] Andy: All right.

[00:07:02] Larry: Sounds that way. And unfortunately, I cannot give her any good news because all the challenges in Texas, this letter comes from Gatesville, Texas. All the challenges in Texas have been turned aside because the proof has not been satisfactory, that the registry is imposing enough disabilities or restraints. They have not been able to distinguish the registered requirements in Texas to the level. And in fact, a lot of the restrictions don’t occur in Texas. It’s these other States that’ve had that have made their schemes vulnerable. And so therefore she’s on that tragic land of, and the intervening years, there was a penalty for the civil regulatory scheme is greater than what the penalty was for the crime.

[00:07:47]She’s having to bargain for a sentence that’s greater than what originally was imposed. And she’s going to continue to experience this potential for prosecution because registration is basically lifetime in Texas. Very few people are removed through that process, but they do have on the books, but no one, no one actually achieves removal.

[00:08:08] Andy: It’s one of those that the you’d have to find the tiniest little scope where you were convicted for these three days, 27 years ago. And then you might be able to get off something, something ridiculous like that.

[00:08:22]Larry: It’s got to be in my prediction, very similar with California. I can’t wait to start hearing this details, but the statistics as they come out of California, but the process, the way it’s designed on paper, it’s going to be a very difficult thing for anyone to achieve ID registration in California, but I’m hoping I’m wrong.

[00:08:40] Andy: Yeah. Well, that’s discouraging for sure. And certainly sorry to hear that. Where do are we, are we able to send her any information that might be of help?

[00:08:51] Larry: Well, we’re gonna, we’re gonna get her on the NARSOL newsletter list. I’m always glad to hear from new institutions. So we sometimes sprinkle the new institution with a newsletters and that now, so now this is the first communication we’ve had from that prison.

[00:09:16] Andy: Larry, tell me real quick. Why don’t we just blanket every prison in the United States and send letters out?

[00:09:23] Larry: It’s an undertaking. I’ll tell you

[00:09:27] Andy: it was totally just like a bait and switch kind of question for you just to just make your head kind of explode because I there’s two and a half million people in prison and we would like, there’s gotta be, I don’t know, maybe an average of a thousand people per prison. Maybe? That would be a lot of letters going out.

[00:09:45] Larry: So prisons have far more than a thousand.

[00:09:47] Andy: Oh yeah, yeah, yeah, yeah. But some only have a few hundred too.

[00:09:51] All right. Then we’ll move on to this question that we received says, “Dear Andy and Larry, glad to make your acquaintance, but of course not under these circumstances.”

[00:10:00] And I think, well, did you want me to read that in one next paragraph or was that it?

[00:10:05] Larry: Now we just want to acknowledge, this is a tragic letter from a guy in Alabama who was traveling and he ended up, he ended up getting pulled over by the police. So we speculated about what might have happened.

[00:10:17] And from his letter, that’s far too long to read on the podcast. It looks like a lot of our speculation was correct in terms of how it went down to stop and what happened. And he’s wanting appellate help in Alabama, is probably not going to be a state that provides anything in the way of post-conviction resources beyond what they’re absolutely required to do. So. Oh, I don’t know that we can be of any more help to him other than say, we feel bad for you. We did get the letter and at the moment I don’t have anything to offer him other than, than condolences.

[00:10:49] Andy: Well, all right, then, then we will move on, man. Larry, at this pace we’ll be done with the podcasts at about 20 minutes.

[00:10:55]Then we’ve received another letter. It says, “To whomever this may concern, Hello, my name is McClain and I have been truly been wrongly convicted of rape and sexual assault and sentence to 33 years.” God, that’s a long time. Larry. “There’s no DNA in the rape kits, no physical evidence,” blah blah, blah, blah. No evidence. “The prosecutor allowed a bunch of known false testimony to go uncorrected and that the state deleted and withheld evidence that would have proven my innocence.” Dot dot dot. What did you want to say about this?

[00:11:25] I feel, I feel bad for him, but we’re trying to use this as an educational moment for people.

[00:11:30] When he says up above there’s no DNA, no rape kits, no physical evidence whatsoever. The state relied heavily on their witness testimony. Well, that’s, what’s permitted in our system. There’s no requirement anywhere, constitutional or otherwise, that there be forensic evidence. If you look back on the founding of the Republic, we didn’t have anything that were resembled rape kits or DNA. Or for forensics analysis in those days. And we relied for convictions on mostly people being seen and observed by others of what was being, what they were being accused of. And the courts and the juries evaluated the credibility of those individuals. In the arena of sexual offenses, the courts have been mandated by legislation to make it very difficult for you to challenge anything that the accusor says because the accusor is being revictimized, if you actually, if you actually confront them, yes. The only crime I can think of where that is the standard and every other crime, if you claim you’re, if you claim you’re embezzled, that you’ve lost a bunch of money, the first thing that they demand of you as evidence that you had anything to start with.

[00:12:48] Larry: You know, you don’t have to come up with journals and videotape or nobody uses tape anymore. But video clips of something that identifies that a crime actually occurred. But in the case of this offense, the statutes have been largely amended to where no such evidence. In fact, they’ve even been more sinister than that.

[00:13:09] They’ve put in the statutes that no other evidence is required. So that gets, that gets to be read to the jury. That that no other evidence is required. So he’s when he says there’s no evidence, there was evidence, there was evidence of the

[00:13:22]Andy: Physical. Yeah, yeah, yeah, yeah. Brenda asks is how, like, can you, what do we know about those known false claims that he makes?

[00:13:30] I mean, how, how would you prove that the prosecutor knew that they were false testimony?

[00:13:34]Larry: I mean, that’s a good, good question. And what happens is that if you’ve ever talked to your defense attorney, your defense attorney, if you tell them what you did, they will tell you, I can not allow you to get on the stand and say anything contradictory to that.

[00:13:48] You’ve heard that before, right?

[00:13:50] Andy: I believe so. Yeah.

[00:13:51] Larry: You’ve heard that. You’ve heard, while the prosecutors that they do know such admonishment. But they know that police officers get on the stand and they tell exaggerated truths all the time. And sometimes they tell incredulous stories, and versions of stuff.

[00:14:07] But he has to prove, the burden as a convicted person, now he has to prove that they withheld evidence. He has to uncover the withheld evidence and show that it would have altered the outcome. There may be evidence that that’s withheld that would have changed the outcome, and people get obsessed over that. So he’s got to first prove that there’s evidence that that would have been exculpatory, that would have been relevant and, and that the prosecutor withheld it, that they had at that time. And the false testimony, that’s going to be a tough one. Is he going to be able to get people to admit that they committed perjury? That never goes anywhere either because

[00:14:43] Andy: I can’t imagine anybody would admit to it. Yeah. Cause those people then when some kind of prison, hot water,

[00:14:48]Larry: But not only that, when you admit that you gave false testimony, then you are an admitted liar.

[00:14:54] Andy: Correct.

[00:14:55] Larry: And at that point, the question turns on you. And they say, okay, so you are an admitted liar, correct? You’re saying, no, I’m not. I said, well, wait a minute. You’re telling a different story today than what you told on the witness stand two and a half years ago. So since both stories cannot be true, which one is true? Well, of course the answer is to what I’m saying today. And then they say, but you’re an admitted liar. So why should we believe anything that you said that well, how can we put any faith in your testimony? That’s the way it goes down.

[00:15:30] Andy: I want to back up. Go, go, go, go, go. I’ll ask him my question in a second.

[00:15:34] Larry: So false testimony. That’s going to be a really tough one, and he’s on the position, he’s going to have to prove that there’s perjury or false testimony.

[00:15:42] Andy: Okay. Okay. So, but when you go to court the first time, the burden of proof is on the prosecutor. And you’re saying that when you try to, I guess your expression is take a second bite at the apple, if you try and go back, you, you have the burden of proof to prove these allegations of misconduct and whatnot?

[00:15:57] Larry: Because you’re now the convicted person.

[00:16:01] Andy: So for you to get something reversed, overturned, you have to then prove that the prosecutor lied, that the evidence was prosecutorial misconduct. The evidence was not legit and all that stuff.

[00:16:12] You have to go prove that. Got it. That’s a pretty high hurdle to cross. Yeah.

[00:16:16] Larry: It’s, it’s very, very high. Now, if you can prove that there was relevant exculpatory evidence that the prosecution had at the time and that they withheld it, that’ll get you a long way.

[00:16:25]If, if he, if he can show that, but he’s got to show what the evidence was and how, how was relevant. I mean, you can come up with anything that you could imagine that people say, well, my lawyer could have done this. I could have done that. Well, they could have done a lot of things, but, but he’s saying that there’s withheld evidence.

[00:16:40] What evidence was withheld? He can write us back and tell us because he’ll get the transcript. What evidence was withheld in particular and how would it have altered the outcome?

[00:16:51] Andy: I have, I guess I’ve heard from miscellaneous court transcriptions that yes, there was something of withheld or prosecutorial misconduct, but it wouldn’t have changed the outcome.

[00:17:03] So somebody has to then go make that decision that, yes, it wasn’t 2:00 PM. It was 7:00 PM, but that wouldn’t have changed the outcome of the case.

[00:17:11] Larry: That is correct. And, misspeak in testimony doesn’t constitute perjury or wouldn’t change the outcome. And there may be, there may be like a surveillance log was withheld. They had you under surveillance and they withheld their surveillance log, and it would prove that you were at a certain place at a certain time. And you couldn’t have committed the murder. Now that would be a piece of relevant information that would potentially change the outcome. If governmental agents had you under surveillance, and they found you, and that was withheld by the prosecution because it would have sunk their case. But if their surveillance log revealed nothing other than you drank yourself to a stupor 10 minutes before the crime occurred, I mean that wouldn’t, that would not change the outcome. So that surveillance law withheld would not be nearly as relevant at all that, but he really needs good legal advice to take this evidence and find out if he has any hope, because of how post-conviction works in Ohio, we wouldn’t have any idea. And that’s where this letter originates from. We wouldn’t have any idea about that stuff if we couldn’t give it advice, even if we did.

[00:18:18] Andy: Okay. Well, all right, then let’s move along.

[00:18:22]So it goes, “Hello. I was wondering if you could possibly help me out. I’m going to parole from Illinois department of corrections to the state of Arkansas.

[00:18:32] I’m going to go live with my mom and her boyfriend. I would like to know if you people would be so kind as to send me all of, any of the PFR laws and the registration laws for Arkansas.

[00:18:47] Larry: Wow. That would be when he says all the laws, I guess he means all of it. Every sexual offense. Well that’s not feasible to do now.

[00:19:16] Yeah. That was 44 pages or whatever.

[00:19:17] Andy: Yeah. They thought it probably the, it was just like five bullet points or something.

[00:19:21] Larry: So but, but in terms of his, we don’t know enough about, or at least I don’t know enough, I don’t know about y’all don’t know enough about getting released from the Illinois department of corrections.

[00:19:50] So people stay in Illinois department of corrections way beyond their date. We know that. But when he goes to Arkansas, if he’s able to make that connection to Arkansas, if Illinois first will allow him the opportunity to apply, and if Arkansas accepts him, if his proposed residence doesn’t violate one of their restrictions, if he manages to get to Arkansas, in some regards, it would be better.

[00:20:14] The registry is better in Arkansas as it exists right now. I think their legislature’s in session right now. I don’t know if at the end of the session, if it’ll change, because they’ve been trying for a few years to change the risk-based system that they have. But in that regard, and after 15 years, he could file a petition to be removed, assuming in the next 15 years, the law doesn’t change. I don’t believe that process exists in Illinois. So he would be better off under Arkansas’ registration. And in terms of the supervision, I don’t think it’s going to get much better in Arkansas. I think it’s going to be very similar because they’re obligated to follow everything that Illinois has, plus they’re allowed to put conditions consistent with how they supervise PFRs at Arkansas. So he’s got to bring every condition of his supervision for Illinois with him, and he’s got to pick up whatever they impose, if anything additional.

[00:21:04]Jen just added a little anecdote. So is that they passed two horrible hate laws in Arkansas this week, which without any details, I don’t know what they did, but Brenda also points out that maybe this individual’s family could go check out the NARSOL Wiki, and that, that would be the Cliff Notes version of the statute for the two states.

[00:21:23] Oh, that would be a good idea. And then I want to just make one other observation and, and very few people choose where they’re born and we’re not reading the second paragraph or the third paragraph, but he says that he was charged with a sexual abuse victim 13 to 17, and he was 16 and she was 13. And then he was 19 she was 17. If you live in a civilized state like mine, neither one of those would have been a crime as long as it was consensual, because we do not prosecute 16 year olds for having consensual sex with a 13 year old. So we do not prosecute 19 year olds for having consensual sex with a 17 year old. Now that’s the whole contingent. It had to be consensual, but of course we’ve got a four year age bracket. So 19 is less than four different from 17. So no prosecution on that. And 16 to 13, there’s a less than four years. And they’re both juveniles. We don’t prosecute that. So if you had had your parents in New Mexico you wouldn’t be in this position because we don’t do that here.

[00:22:26] So, but unfortunately he’s got he’s got failures to report and I think that’s gonna change the the alteration on my previous comment about him getting discharged in Arkansas. They’re going to be really reluctant to let him off registry, even if the law doesn’t change in the next 15 years, because he’s got failures to register.

[00:22:42]If I’m the prosecuting attorney of whatever county he chooses to live in Arkansas, the first thing I’m going to say is that this person’s had difficult to comply with registration. Judge, you can’t let him off. That’s what I would say. If I can think of that, trust me. They can think of that.

[00:22:57] Andy: All right. Let’s do at least one article. And this one came by the way of one of our long time listeners and patrons. And it says, “Former Missoula man sues over outdated sodomy law convictions, a sex offender requirement.” And this comes from KPVI, wherever that is. I don’t know what that, I guess it’s Missoula, which is Montana, but you wanted to highlight one particular paragraph if I can find it. It says “However,” no, wait. Nope. Not that however. However, no, not that, however, there’s another, however, I think I went too far there, you know this is the trouble with doing, Oh, there it is. “However, in 2005, the Montana state legislature changed the law so that anyone required to register as a PFR in one state had to register as an offender in Montana. And Idaho, unlike Montana, still has a law against sodomy and oral sex and requires people convicted of crimes to register as PFRs under its crimes against nature statute.”

[00:23:52] That doesn’t really comport with what I understand a crime against nature, but that’s just how I understand it.

[00:24:00] Larry: Well, I feel, I feel bad about this because the person could end up with a very textual interpretation. Like we’ve talked about out of Nebraska, when a person moved from Colorado and they had very similar language in their statute. Now that was a state court, that was a state decision. And the person was charged with violating the registry. Is this person being charged with violating the registry or did he file a declaratory judgment action? Is it clear in the article? Because I just did a skim read of the article.

[00:24:29] Andy: Yeah. I didn’t read much about it either, so I can’t answer that myself.

[00:24:32] Larry: So well, if he filed a declaratory action, it will permit him to bring forth the evidence that would not be necessarily opportunity for if he’s being prosecuted and a criminal case. Some people just insist on using the wrong vehicle.

[00:24:51] But if he, if, if he I’ll actually, it just says it right here, he filed it. He’s in, he’s in federal court there’s a 1983 action. So he’s filing, he’s doing the correct thing. He’s filing a petition, he may get a different outcome in federal court because the federal court first is bound to follow the state law. But if he can put forth some constitutional claim about equal protection, he might can prevail. But if he were to take this, if he had taken us into state court, which is probably why he didn’t file as declaratory action in state court, he would, he would likely end up with a similar decision that came out of the Nebraska Supreme court.

[00:25:24] They’re going to ask him, you are a person, right? Well, yes. You did, you do have to register in your state of Idaho, correct? Yes. Well, it’s black letter law. It says right there that you were covered under Montana’s law. If you’ve got a problem that goes legislature, that’s what, that’s what a textual interpretation would be.

[00:25:41] If you look at that very issue in Nebraska where the issue was, whether juveniles would have to register, Judge Cough, a federal judge, was trying his best not to require people to register. And he was using some, he was inventing the, the intent. He was putting some of that intent into the decision, because he says, well, we don’t register Nebraskans that are convicted as minors, therefore it stands to reason that the legislature didn’t intend to register juveniles from out of state, but the Nebraska Supreme Court said nope, they could have said that. They could have said any person other than a juvenile who was convicted out of state. They didn’t say that. And our robes do not entitle us to insert that into the statute.

[00:26:24] What that federal judge has the same robe. He’s not entitled to insert that into the statute, unless you can prove there’s a constitutional violation occurring, that he cannot apply that law. If he can enjoin the state of Montana for him applying that law to you. But, but you’re in an uphill climb because the law says what it says it does. Most people, when they say they’re for textual interpretation, that’s actual interpretation. You’re covered.

[00:26:53] Andy: Charles’ comments, but he is registering in Montana for a crime from Idaho that wouldn’t be a crime in Montana. Does it matter?

[00:27:01] Larry: Doesn’t matter. It’s a civil regulatory scheme. He’s not being charged. Of course he has. He has the requisite definition that subjects him to the scope of the regulatory scheme. And I mean, that’s an argument he can make and I’m sure he will make it. He will say that I would not be a crime here, but, but that’s not going to be the analysis.

[00:27:21] If it’s the textual judge, the textual judge is going to say, well, let me ask you again. Are you a person? Yes. Did you move here from Idaho? Yes. Did you have to register an Idaho? Yes. Okay. Where’s your beef?

[00:27:37] Andy: And just as a final note, the ACLU is assisting him.

[00:27:43] Larry: All right. That’s really amazing. They generally don’t get involved in these things.

[00:27:48] Andy: Are you ready to move on to the main event?

[00:27:53] Larry: Do we have a main event tonight?

[00:27:55]Andy: Well, I mean, I guess these two cases that you put in here are the main event.

[00:27:59] Larry: Wow. We’re going to talk about, are you ready? What did you put in here?

[00:28:03] Andy: I know, right? So you, you, people put in a couple of, one is a Torres versus Madrid. We’re going to Sue the whole, like the whole country in Madrid or the city. What’s the city, I guess it’s Spain, Madrid, that was decided by the US Supreme Court on March 25th. The other is called Minnesota versus Francio Momolu. I’m totally botching these words up, which was decided in Minnesota Supreme Court.

[00:28:26] I glanced Larry, I didn’t read. I glanced and I can’t really see the relevance of the case and I’m really struggling with the other one. So what are we going to do with these?

[00:28:35] Larry: Which one can you not see the relevance to?

[00:28:38] Andy: Either. How about that? So which one do you want to cover first?

[00:28:41] Larry: Oh, well, they’re both relevant, but the one that’s going to take up the most time is the Minnesota one. So let’s do it first.

[00:28:49] Andy: Cool. Then according to the court’s opinion, a female referred to as JS was intoxicated after drinking alcohol and taking a prescription narcotic. She went to a bar with a friend, but was denied entry due to her intoxication. The appellant, Mr. Kahleel approached JS outside of the bar and invited her to accompany him to a supposed party at a house. Like that story’s never been played in a movie and it went South before. After arriving at the house, JS passed out and woke up to find Kahleel penetrating her vagina with his penis. Since we all know that the accusers don’t lie, it sure seems like rape to me. And why is this here in the program for tonight?

[00:29:28] Larry: Well, it’s not quite that easy. As the court noted, the question is whether Kahleel’s conduct is third degree criminal sexual conduct under Minnesota law. And under Minnesota law, that is the sexual penetration with that other person when the perpetrator knows or has reason to know that the complainant is mentally incapacitated.

[00:29:50] Andy: I got ya. Yeah. And you, and your super focus on nuances in laws. Everyone knows that if a person is intoxicated, that they are mentally incapacitated. But God Larry, that would be, that would be squishy because how intoxicated are you?

[00:30:06] Larry: Well, I’m not so sure that we can agree on that. As the court pointed out, the decision turns onto the meaning of the mental incapacitated as defined in Minnesota statute.

[00:30:44] In other words, the court had to decide where their person can be mentally incapacitated under the statute when the person voluntary ingests alcohol. That’s what this is about.

[00:30:57] Andy: Didn’t we say before that she took the narcotic on her own, correct? Didn’t we say that? Yep. Then I’m confused on why there’s even a question.

[00:31:06] All right. “The court seems to be out of touch with the reality of rape. How is it that they can simply turn a rapist loose on some ridiculous technicality? Let me share some of the facts from the decision, which parties do not dispute. JS, she traveled with her friend SL to the Dinkytown neighborhood of Minneapolis.” Who the hell names a town “Dinkytown” , Larry? — “with a friend and attempted to enter a local bar. She was denied entry by the bouncer because she was intoxicated. Shortly thereafter, Kahleel and two other men approached GS and SL outside of the bar, invited them to a party. Kahleel then drove the group to a house in North Minneapolis arriving in the early morning hours of May 14th, 2017. There was no party at the house.” Duh! “SL testified that after walking into the house JS immediately laid down on the living room couch and soon fell asleep. JS testified that she blacked out due to intoxication shortly after arriving at the house and did not clearly remember lying down on the couch. JS woke up sometime later to find Kaleel penetrating her. She said, ‘no, I don’t want to,’ which he replied, ‘But you’re so hot and you turned me on.’ JS then lost consciousness and woke up at some point between seven and 8:00 AM with her shorts around her ankles. She retrieved a cell from another room and the two called Lyft and left the house. During the ride JS told SL that she had been raped. Later that day they drove to Regions Hospital in St. Paul to have rape kit. However, there is not a crime.” Oh, excuse me. “How is there not a crime here?”

[00:32:29] Larry: Well, we’re not saying there’s not a crime here. There was a crime here. Not even the court said that. What they said is that the law did not recognize voluntary intoxication as rendering a person mentally incapacitated.

[00:32:41] That’s what they actually said. And it’s important to point out right now that there was a less serious charge that the prosecution could have chosen, which would not have resulted in this outcome had they chosen that. The state chose to charge him with the more serious charge, which criminal. And they could have used the less serious charge. And unfortunately they appear to be headed towards defeat on this. And that’s what happens when you’re not happy for a conviction. So, ah, I guess you wonder why they, why they didn’t choose the other charge, right?

[00:33:17] Andy: Yeah, definitely. Why didn’t they do that?

[00:33:19] Larry: Well, because it was only a gross misdemeanor, rather than a felony.

[00:33:22] Andy: Of course. Well can we stop right there? Tell me about gross misdemeanor versus just misdemeanor.

[00:33:26] Larry: I don’t, I don’t know. It’s probably the high level of misdemeanor. We call it high misdemeanor here. Right? So it’s probably a high. But, but for the first offense for that, it would have been a misdemeanor and that would not have satisfied the victim nor would it have played well in the community. And in fact, that’s one of the reasons why we actually have negotiated pleas. Had the state charged the proper offense, they probably would have gotten a guilty plea, which would have meant some level of accountability. And I think registration as well. I think that’s on the list. We’ll have, we can have one of our patrons from Minnesota, tell us if we’re wrong, but I think that’s on the list.

[00:34:01] Unfortunately, some cases are just too political, which makes it impossible to offer a reasonable plea. Okay.

[00:34:07]Andy: This, this is super gray area. I mean, I was having a conversation with someone about this yesterday. Where if she didn’t consent to it then, and he did it anyway, then like that there’s no gray area there.

[00:34:39] Larry: That’s not what the court’s saying here, that’s not what the court’s saying here.

[00:34:43] Andy: It sounds like the way that the law is written because she is self-inflicted on the stupor, the drunken stupor, that it’s not rape.

[00:34:52] Larry: That’s not what they’re saying.

[00:34:54] Andy: Okay. Then, then that would go, why I’m still confused. She was intoxicated and the parties agree. What’s the problem? You cannot have sex with an intoxicated person.

[00:35:02] Larry: Well, the issue is that the state, the statute required that the intoxicant be administered against her will and the state did not assert. nor did the evidence show, that that was the case, that it was without her agreement. There just simply wasn’t any evidence to support that.

[00:35:18] Now they’ll all on the other hand. The guy called Kahleel does not dispute that there is sufficient evidence on the record that he knew or had reason that JS was under the influence of alcohol. The course of session, and this appeal is centered on whether the the legislature’s definition of mental incapacity includes a state of mental incapacitation caused by the consumption of alcohol, voluntarily or not, or whether it’s limited to the circumstances for the state of mental incapacitation results from consumption of alcohol administered to the complainant involuntarily, without her agreement, which is what the statute requires.

[00:35:50] This is what the statute requires the court to do. The court didn’t write the statute that says that that’s what’s required.

[00:35:59] Andy: No, of course not. Of course not. I, I hadn’t really ever considered how this would go down. Plus I don’t, even if there is a rape kit, you still have a “he said, she said,” so there’s obviously they didn’t, in the docs here, I didn’t see if, did the rape kit come back and say there had been activities going on?

[00:36:16] Larry: Oh, well, they already stipulated that there were sex.

[00:36:18] Andy: Okay. Okay. Okay. But, so then you’re just down to a “he said, she said,” he’s saying she was ready to go. And she says, I didn’t say that. But if her friend was there, Larry.

[00:36:28] Larry: But we’re not down to that, that’s not at issue here. The issue is that the statute required that it be involuntarily administered to her.

[00:36:38] Andy: Right? So like date rape. Somebody spiked her drink. And that’s how she became incapacitated.

[00:36:44] Larry: Correct. Incapacitation is not recognized under the statute unless it was, unless it was involuntary.

[00:36:50] So, he didn’t write the statute. The court didn’t write the statute. The legislature did.

[00:36:55] Andy: Yeah, of course, of course. Which is represented by the people. Man, I’m with you. Okay. But like, so you’re always hell bent on reminding people about textualism is not necessarily good or bad. So is this an example of where textualism is a good thing?

[00:37:49] Larry: If the legislature didn’t intend to have that prohibition in there that incapacitation that was voluntarily administered didn’t count as being incapacitated. They should have not put that in the law. Correct. So you don’t like legislating from the bench, do you?

[00:38:12] Andy: I don’t think that they should, but of course there are times when we would do want. Brenda has the same question that I was just coming up with. It says, do you think that the legislature will now go in and change the law?

[00:38:23] I do believe that will. And it’s I think that it won’t take them very long.

[00:38:27] Will this wait til next year to go down the path? Are they still in session? Does this happen this year in some kind of emergency session?

[00:38:35] Larry: I don’t think they’d call it a special session for it, but, but if they’re in session, this is, this is certainly gonna be introduced if it’s not too late and that they have to fix this, but the victim’s advocates will not let us go.

[00:38:49] Andy: Yeah, sure. Is what the court did was to render textual interpretation and punt to the legislature. Is that, do you think that’s, that’s a fair way to word it?

[00:38:57] Larry: Well, I guess that’s one way of looking at it. They did their job. They looked at the law and they applied the law unanimously. That was not even a single dissent in this decision.

[00:39:09] Andy: Through the time of doing this podcast, I have come to the conclusion that I believe that we want them to be textualist. Of course there are times when we don’t. But if we were not competent, and I mean, we, as in the, you like literally like the lay people and we don’t go deal with our legislators and we are not competent in who we vote for, and when there are, this is a lot of work, Larry, but these laws are really important and how they impact our lives. And we need the language to be hyper-specific about what they do and don’t do. You had me watch a video yesterday and I like there was a, they were focusing on these like one and two and three words of how this bill was being written. And they matter in the outcome of things.

[00:40:06] Larry: That is correct. And courts typically do everything they can to discern the intent and to apply it as it’s written, if possible.

[00:40:35] Andy: Correct. Right.

[00:40:36]Larry: A part of self-governance. If you want to do that, and you’re happy electing people who put you in a restrictive state of things that you don’t like, and you continue to elect them, that’s on you, not the court. That’s on you.

[00:40:49] Andy: We can make jaywalking a felony and make people get executed for a felony jaywalking. We can do that.

[00:40:56] Larry: I don’t know if we could, if we could actually get that to pass, but you could make it a much more serious crime. And I know that that’s your prerogative to do that.

[00:41:05] Andy: I’m making a super extreme example that I’m doing that on purpose too, because we could do that if we really, really want it to, I know, I know you’re saying it would never pass, but if we really were hell bent on doing it and it could pass and make it through it, we could make it that you jaywalk and you die. Does the state appeal or do the charges get dismissed? What happens?

[00:41:21]Larry: Well, the state really can’t appeal this as this is highest tribunal of the state and the charges do not get dismissed either. The case is remanded to the trial court and the state will have to make a decision now, if it can overcome the previous testimony that there was no — I mean, they can’t overcome the previous testimony. But if they have to make a decision now, if they want to offer this person a plea bargain, because there’s no way they’re going to secure a conviction on this offense, the same evidence is going to play out the same way.

[00:41:50] You know, the statute says what it says, the highest tribunal in the state has ruled that it was a voluntary intoxication. Therefore she’s not mentally incapacitated as required by law because it was not administered against her will. So they cannot prevail on this of this statute. So they’re going to have to offer him a deal and the deal has got to be time served and he’s going to go free.

[00:42:15] And that’s going to drive the publicity in Hennepin, Minneapolis and Hennepin County. It’s going to go off the chart bonkers about how a rapist is going free, and that will put immense pressure on the legislature to fix this. If they, if they have, if they have the ability to do it this session, because this is a travesty of justice.

[00:42:34]Andy: Okay. Anything else? God, you come up with really interesting ones. I’ve never considered that the way that the language in this bill works is that if you did it to yourself, then sorry, like what happens to you is your fault.

[00:42:50] They didn’t say that. I wish you would quit saying that. They did not say that.

[00:42:54] That’s what it sounds like.

[00:42:55] Larry: It does not say that. They said they couldn’t convict him of this more serious charge that requires a different level of proof. I just got through telling you the charge that they could have convicted him of. Right. I don’t know how that goes scot-free. I don’t know how you keep saying that.

[00:43:12] Andy: Cause that’s what it said. That’s what I thought, Larry. I’m still back to it’s if she did it to herself,

[00:43:21] Larry: It says that that’s equivalent to a premeditated first degree murder and a non premeditated murder. Yes. The person is dead. They’re still just as dead. Sure. But the elements of the offense are different and the penalty is different.

[00:44:23] Andy: Right. Okay. I gotcha. Okay.

[00:45:15]Before we jumped, we wanted to acknowledge Charles in the state of Indiana, Indiana. Excuse me.

[00:45:21] Larry: Yes. Charles wrote us a nice letter and we’re not going to read it cause it’s nice, but it’s very long. But he was sharing with us about the State versus Wallace case from back 15 years ago, and about the unconstitutional. He was replying to the decision out of Wyoming and he was suggesting that Wallace should be looked at. And Wallace of course is not binding in Wyoming. And the registration requirements are different. We’re different, or what was being challenged in Indiana is far different than Paul was being challenged in Wyoming. So just because one state Supreme Court finds one registration statute unconstitutional does not magically translate to another state’s registry being unconstitutional because the levels of disabilities or restraints are different.

[00:46:02] You could never win a disabilities or restraints challenge in Vermont, there are no disabilities or restraints imposed. So it’d be difficult for you to prevail on all of that component of the analysis. But we do appreciate the letter because there are things that we sometimes don’t know about. So, so it doesn’t hurt to have it. But anyway, we, we are aware of that case.

[00:46:21] Andy: What is a pipeline to get that kind of — do people just write to NARSOL and miscellaneous others and post them on different blogs. Like, do you think that stuff, how often do you think that that stuff gets missed?

[00:46:33] Larry: Well, it doesn’t get missed very often, but occasionally there may be something that we have overlooked that might be relevant. This case has been out for a long, long time and it’s cited all over the place. So we’re aware of it.

[00:46:44] Andy: I guess it’s the the benefit of having, what, 10 years wait, probably what 12 or something years for NARSOL.

[00:46:52] Larry: I can’t even keep track of it.

[00:46:55] Andy: Jeez, man, you’ve been around since time began practically.

[00:46:57] You were there when they invented sand. So I guess you ready to jump over to the other case?

[00:47:03] Larry: Let’s do it cause we’re gonna, how are we doing on time? Yeah, we’re running short on time, so let’s do it.

[00:47:07]Andy: Why do you feel that this was worthy of the very premier FYP time?

[00:47:13] Larry: Well, that’s worthy of our time because it presents a real time opportunity for us to draw the parallel to Smith vs. Doe to this decision that was just decided. Now would you please recite the name of this decision for all of our people in prison who want to know what we’re talking about?

[00:47:31] Andy: All right. Well, this is the Supreme Court of the United States Torres vs. Madrid et al. Is that enough? Or do you need me to go for more?

[00:47:39] Larry: That is enough. Okay. So the reason why this is relevant well, you can, you can tell me, I think, I think you have an idea about it. What were you thinking after you read it?

[00:47:49] Andy: I mean, it was decided by summary judgment so that we can go there first. Can you remind me of what the good, the bad, the ugly and all that stuff is of summary judgment?

[00:47:57] Larry: Yes. That’s why I put it in here because I want to do the parallel to Smith versus Doe. People have so much anxiety about Smith versus Doe and that the “alarming and frightening high” recidivism.

[00:48:23] And in other words, in summary judgment, there’s no trial. You do your pleading. You’re the party that’s bringing the action does their brief, the other party responds with their brief. And then you do your reply in support. You do your depositions and you do everything you can to develop your case. And you, you say, gee, we don’t need to go to trial. This case there’s nothing here to decide, the facts were indisputed. Well, the pitfall of summary judgment is that sometimes there are issues that were in dispute. And when you have a decision or that where there, or there things where the court could have better developed in a trial, all the doubt goes in favor all of the non-moving party.

[00:49:09] So in the case of Smith vs Doe, the challenger was the one who filed for summary judgment, because he said, well, you know, we don’t need to spend a lot of time with court. I don’t want to have to register. This crystal clear is ex post facto. They’ve passed a law that they’ve applied to me which didn’t exist when I was convicted. End of discussion. And the state of Alaska said, well, not so fast. You know, it’s a civil regulatory scheme. And we would argue that there are frighteningly high level of recidivism among PFRs. And he turned around and said, so what? Say it all you want to, you just can’t do this to me because of ex post facto.

[00:50:11] So that’s why I put it in here.

[00:50:12]Andy: Okay. And I mean, we we’ve covered that quite a bit lately with the Butts County thing of, one of the things that would have been in dispute is, is that, is that particular part of your property right-of-way. We needed experts and whatnot to go in and decide is that actually right-of-way that the sheriff can go drop signs down. That was a fact that was in dispute, if I recall correctly.

[00:50:31] Larry: That is one fact that it may become, the way the case was briefed on appeal, it may turn out that that’s less relevant. We’ll have to wait and see. But yes, that was, in my view, an important fact that was not developed.

[00:50:41] Andy: Then moving into this case specifically, what are the issues here? And can you please clarify and connect those dots?

[00:50:49] Larry: Well, let me just read from the opinion a little bit, so people know what the case was about. And it happened in New Mexico. “At dawn on June 15, 2014, four New Mexico state police officers arrived at an apartment complex in Albuquerque to execute an arrest warrant for a woman accused of white collar crimes, but also suspected of having been involved in drug trafficking, murder, and other violent crimes.

[00:52:05] Well, remember, since this, with the subtle summary judgment, the court has to assume that her version is the correct version. So the facts that the Supreme Court were handed in this case was that she did not know that they were police officers and the attorneys on behalf of the officers gave the court those facts by moving for summary judgment.

[00:52:28] So they conceded and consented to that being a fact. So whether or not she knew there were cops is irrelevant. Okay. Because all inferences and benefits of the doubt or are going to the non-believing party. She didn’t want summary judgment. She wanted her case to go to trial. And it didn’t go to trial at the officer’s instigation because they said, wait, all the different things that it would take two podcasts to cover all the things they said in this case.

[00:53:54] Andy: Thinking back to that time, if that Kennedy Mendoza Martinez is that the disabilities and restraints, is that where that comes from?

[00:54:02] Larry: That’s the seven factors from a 1963 case called Kennedy versus Mendoza Martinez.

[00:54:07] Andy: Had we presented that side of the disabilities and restraints to that whole court process, this may not even be where it is today because of that, just hypothetically, us presenting that side of evidence to bring it to trial and all that stuff.

[00:54:23] Larry: Well, I don’t know that I, I don’t think there were enough disabilities or restraints that they looked at. They did that test, that there wasn’t enough disabilities or restraints. They would survive that test.

[00:54:32] Andy: Correct. And I’m with you because there was no living restrictions. There was really no internet really to speak of in 2003 or whatever. So yeah, like you just had to go visit the Popo annually and go get your picture and fingerprints or whatever. Whereas now —

[00:54:45] Larry: You had to mail that beforehand.. So have to do that stuff.

[00:54:49] Yeah, because in Alaska you could be 7,000 miles away from your local Popo. But you could live out there with a caribou and to take you seven days to get there.

[00:54:58] Andy: But and, and, and just to clarify one other thing, just to put a mark on it, they didn’t say any registry is okay. They said that registry is okay.

[00:55:07] Larry: That is correct. They said what was being challenged as it existed at that time did not impose disabilities or restraints. You guys can fixate on recidivism if you like. It’s a fixation that we’ll never win you a case, at least a significant case. Or you can fixate on the disabilities or restraints, which will win cases and have won several cases. And that’s what we have to do is we have to develop these cases below with factual evidence, expert witnesses, show the disabilities or restraints and what the consequences are. And we distinguish ourselves from previous decisions as we’ve reviewed on this podcast, several times we’ve shown that the challenging parties have done a good job of distinguishing the registry as it exists now against the registries as they exist the last time they were decided. I think we just talked about that last week or the week before, you know, it’s your job to challenge it, it’s your job to prove. The presumption is that the registry is constitutional until you prove it isn’t.

[00:56:13] Andy: It seems, Larry, that most of the states like sands we’ll leave out the super benign ones, but that the disabilities and restraints are, it seems that they’re easily presentable. I don’t know that you can get a case going and all that, but people can’t get jobs. People can’t find housing. The whole homeless camps that go on in Florida — those are clearly disabilities and restraints. How are they not seen that way?

[00:56:38] Larry: Well, well, first of all, your criminal record, they always argue that your criminal record is what causes you not to be able to get a job. They dispute that the registry is the cause of you not getting. So you’re going to have to bring in evidence that shows that they would have hired you with your particular criminal conviction, but for your list in all the sexual offender registry, excuse me, the sexual offense registry.

[00:56:58] Andy: You’re not “offender”–

[00:57:00]Larry: Because they registered the offenses.

[00:58:10] Andy: You have to have some money.

[00:58:12] Larry: That’s why you don’t move for summary judgment on these things. You go in with a big bank roll and you develop, you imagine everything that the state can think of. And there’s been enough litigation that you shouldn’t have to be very creative to do the imagining because they’ve already put forth these arguments over the years.

[00:58:46] Andy: Okay. So, this is what we were just discussing.

[00:59:07] Larry: And that they offend the Constitution of either their state or of the United States. And again, on page 10 to 11 at the Supreme Court decision, they went through all, they went through 400 years of what constituted or whether this was — the issue in this case is whether or not they actually sieze the person.

[00:59:43] And they said that at the time the shot was fired, that was a seizure. And they went through 400 years of jurisprudence from around the world and English common law and blah, blah, blah. We would spend a lot of time. But they said in concluding again, applying these principles in articulated above to the facts viewed in the light most favorable to Torres, the officers’ shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away.

[01:00:13] We therefore conclude that the officers siezed Torres for that instant and that instant the bullet struck her. So again, that’s bizarre, you hear that you hear them twice telling you that that construing the facts most favorable to Torres because she didn’t ask for summary judgment. She wanted to have her day in court.

[01:01:04] Andy: Interesting. So can, can you clarify? Cause I’m, I’m confused. I’m the one that’s dumb. They shot her. Did that constitute them seizing her or not seizing her?

[01:01:14] Larry: The Supreme Court said it did.

[01:01:16] Andy: And that’s what I thought.

[01:01:19] Larry: The five justices, there were three liberal pointy heads, joined by Justice Roberts and Justice Kavanaugh. The three dissenters were, of course the usual conservatives. This time I was surprised that I would have thought that this was something that Gorsuch would have been sympathetic to. But as I realized, it came out of the 10th circuit, the 10th circuit, and he served there. He may not wanted to embarrass his colleagues.

[01:01:41] So since his vote wouldn’t have changed the outcome. It still would have been it’s what — actually would have.

[01:01:46] Andy: That would have been before four.

[01:01:48] Larry: Yeah. So, that would have upheld the lower court decision. But he didn’t vote with with the majority.

[01:01:53] But I continue to believe that Roberts will continue to be a moderating force on this court. And I’ve said that over and over again. And when people say that all life is, we know what’s going to come to end because you know, they’re going to throw out Roe versus Wade and blah, blah. I don’t see that happening. I think Roberts, being the institutional guy he is, and the even cool head that he is, I think he’s going to exert that influence over the court.

[01:02:40] Andy: But that doesn’t mean though, that the court has not drifted radically right. In at least in like the last decade or so.

[01:02:47] Larry: Of course it has. Absolutely. But I’m saying Roberts is saving it from going much further to the right.

[01:02:53] Andy: Off the cliff! No, I’m with you on that. And I, and I’ve heard plenty of politics podcasts that have talked about something along those lines that he is going to be that middle-ish of the road, even though it’s still, probably fairly right.

[01:03:18] Larry: Well like I say, five brighter people than you and I came to that conclusion.

[01:03:22] Andy: No kidding.

[01:03:23] Larry: Gone through 400 years of legal precedent and, and they said that that’s what it was. Now, you don’t want to question the court’s judgment here, do you?

[01:03:34] Andy: Absolutely I want to question them because I don’t see how that I see that they shot in the attempted, I guess. And then you could perhaps have like resisting arrest if you then run away after being shot.

[01:03:44] But I don’t get that that one is. . . Anyway. I just wanted to talk about that just for another minute. Cause that’s bizarre.

[01:03:52] Well, a seizure, that’s the word I couldn’t remember.

[01:03:55] Larry: The conservatives were very infuriated. Their dissent was very blistering. I did a half skim read of that and they were not happy at all.

[01:04:04] Andy: Interesting, very bizarre.

[01:04:06]Before we close down, I want to make sure that I offer up a reminder that we will not be here next week. I’m going out of town and you’re going out of town and it will be very challenging to record a podcast next week. So you guys get a Saturday night off.

[01:04:20] Larry: Well, I may actually may not go out of town, but I’m glad to have the week off because I’m so far behind with work that this will give me a chance to do some stuff.

[01:04:31] Andy: Very well, very well. Is there anything else before we close things down?

[01:04:38] Larry: Well, I’m hoping that we can grow our podcast transcript. We’re not getting any new subscriptions lately. So as you’ve told people, please pass them around, promote the podcast. You’re not going to get a better source, a more frequent source of information than these transcripts flowing into your prison.

[01:04:55] Andy: Definitely. What was I gonna, Oh, do you, do you want to, like, do we want to try and make that goal about me doing a certain thing that we talked about last week? If we hit a hundred patrons? Do we want to like spill those beans?

[01:05:05] Larry: Absolutely. We’ve got a challenge that if we get a hundred patrons that we’re going to have the best saxophone performance from Andy —

[01:05:14] Andy: [Laughing] Everyone in chat is screaming yes!

[01:05:18] Larry: He is going to outdo Kenny G.

[01:05:20]Andy: No, I’m not going to go there, but you — Bakersfield? Is that the name of the song? Bakerstown. Bakersfield, I forgot the name of the song.

[01:05:27] Larry: Baker Street.

[01:05:28] Andy: Baker Street. That’s what it was. Okay.

[01:05:31] Larry: Not Jerry Gary Rafferty

[01:05:33] Andy: In another lifetime, I was a professional musician and I still have some saxophones laying around.

[01:05:56] Larry: You’re going to do the solo that’s on the Baker Street. You’re going to do that?

[01:06:00] Andy: I thought that’s what we agreed to. I don’t want to do all of the hootin’ and hollerin’ and the dancing stuff from the St. Elmo’s Fire one or whatever that was.

[01:06:07] Larry: Well, I’d like to see you doing the bobbing that he was doing and playing that sax.

[01:06:13] Andy: Oh, okay. Well, we’ll figure out what to do when we get closer to that mark.

[01:06:28] Larry: And we’re actually contemplating doing a YouTube Live taking calls and stuff maybe once every month or two or something, I don’t know, on a regular basis so that we can interact with our people, with our patrons, and our audience.

[01:06:38] Yep.

[01:06:40] Andy: Well fantastic. Larry, as always, I think it is fantastic that you joined me every week. I try really hard to find someone else, but you are always available and I really greatly appreciate it.

[01:06:50] Voice from beyond: That is why I am here.

[01:06:53] Andy: And just real quick, RegistryMatters.co is the website, (747) 227-4477. RegistryMattersCast@gmail.com.

[01:07:02] And as I already said, patreon.com/registrymatters.

[01:07:05] But with that, Larry, you are the best. I appreciate it. And we’ll talk to you soon.

[01:07:10] Larry: Good night. Bye.

[01:07:14] Voice from beyond: You’ve been listening to F Y P.

Transcript of RM170: “No Trick-or-Treating” Appellate Brief Filed

Posted on March 22, 2021 by andy

Listen to RM170: “No Trick-or-Treating” Appellate Brief Filed

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 170 of Registry Matters. Larry, tell me what you think about daylight savings before after? Does it mess you up? Do you think we should have it? Tell me what you think about daylight savings time?

Larry 00:30
Well, you know, interesting that bill was debated in the legislature. It has been for years, but I’m not even sure if it made it to the finish line. But we have a new Mexican in chat, and he can probably look it up and tell me. He was one of Senator Cliff Hurdles bills. And I know it got passed the Senate. But I don’t know if the house put it out. But in my personal opinion, I really don’t care if I heard these arguments that it would. It messes the cows up, but I’m not sure the cows really look at look at the time I’m thinking that their bodies produce milk in cycles. And I think the farmers would just adjust the dairy operator for just adjust their milking schedule. I can’t imagine how it would disrupt the cows.

Andy 01:09
I have never heard that before. I’m sure the cows just operate based on wherever the heck the sun is not when the when the farmer comes up. That would be my guess, but I am certainly no farmer. I’m a computer guy, not a cow guy.

Larry 01:22
So Well, yeah,

Andy 01:24
They both start with Cs

Larry 01:26
But anyway, since we have a listener in chat, he could go to the website and see if Purtell’s daylight savings bill passed. If it stalled out on the house and the House side.

Andy 01:36
I would personally prefer it get lighter get darker later at night. So now at East Coast, it’s getting dark. I mean, I had to put my blackout curtains up to keep the video from looking funky. But if the sun goes down now here it is in March. It’s like around 730 almost eight o’clock that it goes down. I really like that much better. I don’t like it going down at five. It’s not fun to me. Well,

Larry 01:58
I think we’ve mentioned this before in the embargo days in ‘73’ 74 they did try your year-round daylight savings time and then they repealed it. The Congress did because of darkness in the morning that was children’s vulnerable to car accidents. So, we have tried year-round.

Andy 02:19
but the kids up the street for me they go stand up for the school bus at Zero Dark 30 also, like even the wintertime it’s dark is like it’s dark. I don’t see what the difference of dark at 6am versus less dark at 6am. It’s dark. I don’t get it.

Larry 02:35
Well, you got to remember we a lot a lot has improved since 73. We had those old mercury vapor lights on the streets were your headlights.

Larry 02:48
As they got dimmer and dimmer than the headlights on cars. Were those round bulbs everybody had the same headlight on and the lighting on vehicles was not nearly as good. We didn’t have the detection devices on vehicles that would hazard I mean, there was so much different in ‘73 of probably fewer crossing guards. It was a different era. So, what was dangerous then might not be nearly as dangerous. I doubt they had the reflective clothing. Kids have shoes nowadays that that have lights that constantly fly.

Andy 03:17
They have LED lights and I’m sure.

Larry 03:20
So yeah, much has changed since ‘73.

Andy 03:25
All right. Tell me about the agenda. Wait, wait, wait, sorry. Hang on. Let me press this button. Make sure that you go to YouTube and like and subscribe and share it with all of your friends, family and neighbors and also do so in your favorite podcast app. So, tell me about the agenda tonight Larry.

Larry 03:41
Well, we have an action-packed jammed agenda tonight. We’re gonna we’re going to take some questions from inside. behind the walls. We’re going to take some from outside the walls. We’re going to talk about legislative action in my state. We’re going to talk about an appeal that’s pending in in Georgia regarding Halloween signs. I mean, we are going to really, we’re going to really fill this thing out. We got some stories to talk about some news articles and it should be jam packed. We got to move fast.

Andy 04:13
Didn’t you tell me something about some crazy legislature going on in the New Mexico house. Something that house bill we talked about a House Bill 56. (Larry: Yes, we did talk about that.) It did they did the legislature adjourned today at high noon.

Larry 04:32
They do that’s in the Constitution. So, they are joined today. Hi, dude. And that House Bill 56, which was a human trafficking, and the SORNA changes it. It stalled out in the Senate.

Andy 04:47
Interesting to describe that again, is it went from it started as a house and then it goes over to the Senate and then could you go over that just quick again.

Larry 04:58
Yeah, since it has an HB number that means it was introduced in the House. And the House passed it as we fully anticipated. Those members have to face the wrath of the angry mob every two years. And, and the pressure was on them immense, enormous, immense pressure on them to pass this human trafficking. Jeffrey Epstein closed a sort of loophole for out of state people. So, we concentrated on LJC, the labor Justice Coalition, we concentrate our efforts on the Senate, because we they don’t have to face the angry mob for almost four years. And we cooler heads prevail in the Senate. And we were able to, we were able to convey the problems with the legislation and the sponsors weren’t really on the House side willing to make any changes. So therefore, the bill died. It didn’t gain any traction in the Senate.

Andy 05:53
Okay, I was I was watching the NARSOL affiliates list, and something passed up last week from Ohio. And may I read something to you?

Larry 06:01
Sure, I think I know what you’re talking about.

Andy 06:04
So, it reads it says I just learned from our Hamilton County, Ohio prosecutors asking for the names of all those removed from the registry in that county. He apparently feels that the holding in Willman v. US Attorney General justifies penalties from many of them for registration violations under the federal SORNA. The Sixth Circuit ruled that the obligations to register under SORNA is independent of any duties under state law. Therefore, even those who have been removed under state law may be to charges of failure to register. Is anyone else running into this, especially in the Sixth Circuit? One of my colleagues asked me how a state prosecutor has jurisdiction over what is a federal claim under Willmann. This could potentially affect every PFR, who has timed out under Megan’s Law since SORNA. requires the law be applied retroactively. Can federal legislation override a ruling from our state supreme court? Do you people have any thoughts? This is complicated Larry. There’s a lot of words in there.

Larry 07:03
So yes, I’m familiar with this. We talked about this Willmann case, it’s some episodes back. And, and I wrote a piece that was posted on Oracle’s website about Willmann and the dangers and in the case, but here’s the what the reality a, a prosecuting attorney, a state prosecuting attorney cannot prosecute for federal crimes. So, we can rule out the Hamilton County prosecuting attorney’s office, they will not be able to file any charges. Now they could go to the US Attorney’s Office in the same jurisdiction and say, Mr. Madam, US Attorney, we believe that based on Willman, that these people have an independent duty to register, and we believe that you should prosecute them under federal law. And I do not for a moment buy into the to this misguided notion that the federal prosecutors are overworked and understaffed, and all that kind of stuff. That’s not true. But I do buy into one thing about federal prosecutors that they like to win, and they do not do not like to ride sinking ships. And they would take a look at the case law in Ohio. That interpreted they will how that says there’s only Ohio registry there really isn’t a federal registry. In that regard, I think, I think the panel was wrong in the Willmann case. So, I do not think it’s very likely that a US Attorney, assistant US Attorney General, would bring those charges. Now, having said that, then the question is, is there a workaround? Yes, there is. There absolutely is, if I were the Hamilton County, prosecuting attorney, I would get together with the Ohio prosecuting Attorneys Association. And I would tell them, that we need to just do a slight amendment and our Ohio statutory scheme. And that amendment would be that that that there would be a duty to register pursuant to federal law. So, I would expand the definition of Ohio law of Ohio law to include anyone who’s defined as a sexual offender pursuant to the Adam Walsh, Child Safety Act of 90 of 2006. And then that would wind up a brand-new round of litigation, because if I were a defense attorney for anybody that the US Attorney’s Office prosecuted if that law were becoming active, I would come back here and I would argue that there is no federal registry, and that the Ohio constitution is supreme, and that the courts of Ohio have ruled that though our Constitution prohibits anybody from having additional obligations imposed on them. So, this could get quite interesting. And it could get quite fascinating for those legal beagles out there, but this was all predictable that assume, do me

Andy 09:49
a favor and backup on one thing that you said I was just gonna ask you this organically is like, could you remind us that there is/is not a federal registry? And where is my federal registration?

Larry 10:01
Well, people mistake the Dru Katrina Sjodin website, where each of the, of the territorial and state registries are accessible through one search engine. And they mistake that for being a federal registry. And but there isn’t. And some people mistake the fact that that, that when you are registered by the various jurisdictions, they enter you into the National Crime database as that’s one of the person files in NCIC. But that’s still not a federal registry. The registration obligation is what’s imposed by your state statutory scheme. So that’s where the problem lies for these people in Hamilton County. There, there is no federal registry. So, if the how courts continue to maintain they’re that you cannot do this. It violates our Ohio constitution. The fed wills just have to pound sand.

Andy 10:56
Love that expression? I love that expression. Go pound pets go pound Sam. Um, because it does people, I think even you run into attorneys that adamantly say that there’s some sort of federal registry out there.

Larry 11:09
Yes, I know, a number of them that do that. And it’s unfortunate that the courts really don’t understand it. That’s how the Willmann decision was able to be handed down. I mean, we’re, we have confused judges and my fear. I think Willmann files are cert I was intending to check before we went live today to see if that petition has been decided. But he had asked the supreme court for review. And in my mind, it would be very dangerous that they reviewed the case, because I’m not convinced that the Supreme Court would get it right either, because they may find themselves in a confused posture to think there’s a Federal Register when there isn’t.

Andy 11:47
So weird. You don’t have any idea. Is that a two thing? It’s just you said that Dru Sjodin, which is the name of a person Drew, and then I there’s no way I’m ever going to pronounce that last name. But do you think that that’s just the origin of all of it? Or is there something else, that people are so confused that there’s a federal registry?

Larry 12:05
Well, they’re confused, because the, there was a demand for a federal registry because of the higher level of noncompliance back in the in the mid 2000s, it was reported that 100,000 of what was about a half million at that time, had exempted themselves by just simply not complying and moving across state lines. And they realized they could not federalize the registry, because they didn’t have the jurisdictional hook to do that, they these people largely been convicted of state offenses. And it’s like when you when you register your car, you’re not registering with a federal registry, because your car is registered in the state of Georgia, whatever state that you’re in. And, and so that there was no jurisdiction. So, the only way that they could try to gain a jurisdictional hook was by the power of budgeting. So, they asked the states, would you please do this in our national interest to have this have this registry were they more resemble one another, and where they communicate with one another, the registries prior to 2006 were largely dependent on one another. And so now they’ve got a whole lot more networking, but there is no federal registry. But there was the hope by the Congress that the registry for more mirrored one another. And that would make it easier to comply, but they have not grown more like one another. A state has continued to try to compete to make sure that they’re the toughest, right? So, what’s we still don’t have, we still don’t have anything that resembles a uniform law. And after I realized what had gone wrong, I even worked towards trying to get a uniform law. Because uniform laws are adopted all the time by the states working together. And they adopt them as a uniform law. There’s a commission on that. But the uniform law commission was not interested because the process was too far along with what was going on now. And they weren’t going to step into something that was this controversial and try to write a uniform law when the Adam Walsh Act was already on the books. By the time I got around, it was like three, four years after, after the Adam Walsh Act passed. And it dawned on me that what we really were searching for was a uniform law. And that would mean that all the states would have you would gain no advantage of going from one state to the other. But that would the difficulty to uniform laws that the states that are so horrendously hard are not going to want to come down. Yes, because they would say that they would see that as being solved on, you know, what PFRs. and the states that are moderately reasonable, there’s a few of them still are, they would have to come up. And they would have to increase their requirements. And, of course, if you happen to be one of those states that had to raise and increase the requirements, you would not find a uniform law to be all that popular.

Andy 14:40
I would just make a somewhat of a general observation is that I would, I think that states just sort of like their neighbors are very similar to each other across the border taxes and driving regulations. They’re similar. I know that you’re going to end up with like one state. That’s some sort of pocket. That’s crazy. You can drive 100 miles an hour in the middle of nowhere, and then the state’s around. No, you can’t do that. But I bet you would find that the states are similar to the one that that’s next to it.

Larry 15:09
Well, it at least there are people who advocate on legislative bodies for that similarity. You know, you have this look at your recent example, in Georgia where the representative or senator whichever it was, he said that we need to be more like the surrounding states in terms of the removal process. We’re making it too easy. Remember that? So that shows they were looking at the surrounding states? Sure. Sure. Sure.

Andy 15:29
All right. We should move on. We’ve been on we’ve been hanging around this for too long, but its good information is people bringing this up, and then we can talk about the federal registry, which doesn’t exist. Shall we move on, sir?

Larry 15:40
Let’s do it.

Andy 15:41
All right. Well, this came from Reddit says just discovered you people and the podcast through Reddit. I’m glad to hear someone taking aim at a situation that affected me over a decade ago. My parole date from penitentiary of New Mexico September 18, 2008. At that point, they had denied three parole plans for being too close to a school. They went on to deny it one more for the same reason. And then a fifth that we found it in the middle of nowhere because it had inadequate cell phone service for active monitoring. I only had one year of parole was on 50% good time and was watching my poor mother try every avenue to find me suitable address. So, I told her to stop and let me terminate my parole in house. I was released March 3, 2009, upon termination of my parole, but still with one year of probation, reported directly to the same PO who had denied my parole plans, who told me to go find a place to live and come back the following day. I went to my second parole plan confirmed I could still live there, I had them pull it up on Google Maps and measure and found it to be over 2000 feet from the nearest school. I printed that out and took it with me the next day. And when she said, Oh, that’s a bad address. It’s too close to a school. I handed in the paper and he said, Oh, okay, as though hadn’t cost me six extra months of incarceration. He also attempted to keep me on probation without giving me credit for the time served on my in-house parole. I had to print out and take him copies of mine in New Mexico. I don’t know what CD is NMCD policy in order to be released from probation. What is the CD part? CD part? Oh, correct. Gotcha. So, the actual question is now a decade later, I have lived and worked in both Colorado and Texas, both of which would provide a way to petition for removal from the registry. Had I been convicted in that state but cannot because they must abide by New Mexico’s ruling of lifetime registration for me. With New Mexico having no path off the registry until my death. What Avenue Can I take to support change in this? No one to speak to support any change in this because no one takes the time to understand it. The further along in my career I get the more of an obstacle, the registry becomes No kidding. And it feels like there must be something to be done about it eventually. But I’m at a loss. What advice can you give me convicted a fourth-degree sexual exploitation, possession of CP in 2006? Thanks for all you do. fyp.

Larry 18:08
So well, I can tell him. There’s so much that they don’t they the national audience is too concerned about the parole process in New Mexico so I’ll just slightly gloss over parole does that come to an end Mexico prisoner until they’ve done their time, it would be more appropriately titled A period of supervised release. So, at the time he was convicted, he was under the apparently under old law before the treatment providers recommended that that we have indeterminate periods of probation and parole for sexual offenses. And prior to that, the most you would have would be a two-year parole period of post-prison supervision. So, he was able to go ahead and just serve his one-year parole period in the house at 30%. Good time and walk away with just a probation. But the probation starts running the minute you get parole because you’re technically released and serving it in house. So, he’s correct on all that which nobody cares about. But what people do care about is the part of where he says he can’t get off in Colorado, I do not know that to be the case. Colorado does not discriminate and distinguish between a person with an out of state conviction. So, I would recommend that he contact a Denver area attorney named calling Kelly, if he’s living if he’s living in Colorado, and find out now if you have more than one conviction within the same case which appears though he might the that disqualifies you under Colorado law. Texas has, to my knowledge the last time I looked at their statutory scheme, they do not have any tie to another face. They do not have a provision in their law that says you have to register with the term of the state where you were convicted. If that does exist, I would appreciate if he would send that to us so that we’ll know that. But what Texas has routinely done through the years. Are they take the position that if you would qualify under the federal definition, that you’re not eligible for our release? So, they’ve administratively decided that petitions were denied. And I do not know that they’ve actually put that in their statutory scheme. But they’ve administratively have decided that if you have a conviction in another state, that will qualify your DWI definition of a sexual offender that you’re not eligible to be removed. So, so again, as best that would probably be Colorado, if he’s living there, you can’t petition in any state you’re not living. And because that’s not what’s causing you to register so if he is in living in Colorado. He could talk to Colleen, and he’s living in Texas, I would like to see fail the statute in the language where it says it’s tied to the other states, because I don’t believe that to be the case.

Andy 20:54
Um, okay. Is there anything else? That’s a whole lot of word salad going on there, too.

Larry 21:01
I hope we get follow up with this. He might, he might actually have something that we don’t know, because these statutes change every year legislatures have proposals. And if I spent the time researching all the statutory schemes we will never get through the day. So, if that has changed, I’d like to see I’d like to see it, but I don’t believe it to be the case, I believe they’re going to continue to say that because he’s defined under AWA criteria, that he can’t be removed, but we’ll see what he says let’s back.

Andy 21:28
Okay. And then moving over, we received an email message says, Hello, my name is Mike. And I’m from the state of South Carolina. First off, I want to say thank you guys, you’re doing a great job every week, after listening last week about the difficulty of organizing and funding, I couldn’t help it shake my head because you guys have the biggest fundraising tool in front of you. It’s the state’s own registries, you have addresses of 1000s of potential donors and volunteers. I don’t think it would cost too much for mailers. If political candidates can master this. I’m sure the same can be done here. The problem with trying to use social media is that most states authorities have made blanket bans on social media like this one, so it’s very hard for someone like me to even get involved. Thanks, as always. Boy, do I have a lot to say about this one. Do you want to start?

Larry 22:18
Alrighty. Yes, we have actually done what he’s recommending it is a natural reaction when you come in fresh. I gave. I think I was not the keynote. We don’t call it keynote, even now. But I did. I did an opening remark at a national conference in 2012. And I posed the same question that that he’s that he’s posed here. But as we’ve experimented with that model, we’ve discovered that the response rate is very, very, very low. In terms of so if you send out 100 letters, if you get two to three responses, it’s considered a successful mailing. So, and it doesn’t matter, we’ve done the left cock of our head with cocked it to the right, we’ve tilted it back. We’ve tilted it forward. We’ve done it from state-to-state states that are sparsely populated. We’ve done it in states or heavily populated. And we’ve done it in states that are very fluid. And we’ve got an estate that are very poor, like my state. And actually, we’ve had I had a better success rate when we were doing that here in this sparsely populated, very poor state than some of the more affluent states like Maryland, for example, or Connecticut, for example, or how, for example, where we’ve done this Pennsylvania, for example. So, we just we just don’t find that that’s an effective way. It does bring out a couple of people. For every 100, you do get a few new names, but as far as that being a fundraising tool, no, that is not an effective fundraising tool.

Andy 23:52
Um, so even I mean, I may I use a personal anecdote here of what I did in Georgia. ( Andy: Sure) I mean, I mailed out I personally, I hand address, I’m random to a printer we printed out we organized with my state group to work out a letter and sent out I personally sent out 300 letters. And I think I received a handful of phone calls and not one thing transpired from it. When you do something like that, you have to be prepared to handle the multitude of different kinds of calls, people aren’t just going to call in and say, Hi, how much do you need? I have my checkbook open. What would you like? They are going to call in and say, can you direct me to an attorney to get off this garbage list? And I don’t know there’s so out of the response rate, you also then have a certain kind of response rate of people that are even interested to do anything beyond that.

Larry 24:44
Well, most people are more interested in their own situation, which is, which is why they contact you. But there’s a lot of doubt because of scams and stuff. They’ve never heard of the organizational name. So, so they have what frequently happens is they take these letters to the registry. office and ask them if it’s a scam. And then they provide a copy of them to the to the sheriff or to whoever registers them. And, and of course the sheriff encourages them not to get involved. They take them to their appeals; they take them to their treatment providers. But we don’t get, we don’t get the type of response that would be desirable. So that is really something that’s been tried. We wish it would yield results, but it really doesn’t.

Andy 25:25
Very well. I think I can move that one back, a couple clicks. And then let’s move over to this. This one says, Dear Larry and Andy got it. You know what I really need to get some like, kind of music, some soft sobbing music says:

Listener Question
I’m a new subscriber to both the digest newsletter and the registry matters podcast transcript, I share your podcast transcripts (Andy: which is absolutely 100% we are trying to get people to do is when that thing goes into the institution, share it with everybody, collect a couple stamps from everybody and subscribe to it. It would be fantastic to get the information disseminated out.) I share your podcast with many other PFRs here at RCI prison. And we truly appreciate the relevant information you provide. I and six other PFRs have discussed the topics you talk about. And the two questions we have are. Larry, this one’s for you. What does FYP mean and FYP Productions?

Larry 26:23
Well, FYP is kind of like the initial Harry S. Truman’s middle name, it means just what it is. So, we decided that we were going to name this FYP education, and it stands for whatever you want it to stand for. There’s he put his own. He put his own idea and actually came up with a pretty good one. Tell him tell people what he thought it might stand for.

Andy 26:46
But that was the PFRs he didn’t do fyp did PFRs

Larry 26:49
Oh, okay,

Andy 26:50
that comes up. So yeah, so fyp Productions. Yeah. Yeah, means fyp Productions. Um, and then so what does PFR stand for? And I guess the suggestions are as a pedophiles, fornicators, and rapists, which is really kind of terribly terrible. But so, what does PFR stand for? I’ve been asked this by every other person who reads these with me, we cannot figure out what PFR is. So, I’ve been telling the other sex offenders that PFRs are persons forced to register. And so that’s what PFR stands for its people forced to register.

Larry 27:26
And you have to register, you have to register on your state’s sexual offense registry. So, when you go in and

Andy 27:33
tell them you, you want to register your offense, which you’re not registering yourself, even though your name and all that other garbage gets associated with that you’re registering the offense that you committed.

Larry 27:43
That’s correct.

Andy 27:45
Interesting. Yeah. But God, it was probably a year ago that someone suggested PFR stand for persons forced to register. And I actually kind of scoffed at if I if I remember, like, That’s stupid. And then I prefer to use the term a whole lot more than anything else.

Larry 28:03
Well, I really like that. And I’m working my way through the sexual offense registry and I understand the theory behind it because the inference is that the person is currently attending and of course, that that’s not who you are. Yeah, that’s, that’s something you did one event in your life hopefully. And, but it’s just it doesn’t describe because they’re registered you, they take your DNA, they take your picture, they take your fingerprints, you know it, lists your address. I wish it were just that offense register. I wish you could just go out and register the offense, but it’s a little bit more to it than that.

Andy 28:40
There is a tad more to it than that. Thanks guys in inside the walls, man. You mean a lot to us for real? Because I know that I’ve been there, and I am anxious for you guys to get out. And I know that you are too. So, stay strong, and we’ll see you when you get out here. Moving right along, Mr. Larry, this one is written in like the lightest pen possible, but it has very good penmanship, which I appreciate because it makes it easier to read. But could you press down harder? Says:

Listener Question
Dear Sir Madam, I am currently incarcerated in Missouri for failure to register as a PFR my original charge is out of Little Rock, our Kansas. I’m charged as a tier three, which was illegally scored by the courts. I have been registering almost 16 years now. I have filed motions in court and always denied. I need your help to get my voice heard in court. I need the new laws from Missouri and Kansas. And I’m saying that intentionally wrong Arkansas. That can help me to get my name removed from the registering list, plus any other contacts that can help my voice be heard. I also would like your newsletter to be sent to me monthly by mail. My life has been put in danger by the states and courts for a long time. This matters unconstitutional. The state cannot put a person’s life in the public danger that they have Done mine, please send any information that will help me to be free from to the address below, please and thank you. All right, Larry, ding, ding, go at it.

Larry 30:10
So, this is a, this is a tragic situation. And it’s, it’s what happens to so many people, they relocate from one jurisdiction to the other without thoroughly understanding what the consequences are going to be. And I’ve had somebody tell me, well, I got convicted this state, so my registration obligations, 10 years, and I say no, that’s not the case. Now, he got convicted in Little Rock, which is a county in Central Arkansas, capital Pulaski. And had he never left Arkansas, he would have been eligible after 15 years to petition in Pulaski County to be removed from the obligation to register. And Pulaski to the extent that was a liberal part of Arkansas has a significant termination rate of those people there that follows petitions they get off. And I know that because of my connections with Arkansas attorneys, but when he left the jurisdiction of Arkansas, he submitted himself to the jurisdiction of Missouri. And I did not and I we cannot go through all the nuances of what because we’d have to know too much about his particular facts of this case and how to score it up with Missouri law. But whatever, whatever Missouri requires is what applies to him in terms of his registrant obligations. Arkansas is now out of the picture. So, if he were to file the petition, in Pulaski County, the first thing the Pulaski County prosecuting attorney’s office would do is they would file a motion to dismiss that petition saying that he’s not be required to register because of Arkansas law. And therefore, he needs to take this matter to Missouri court. That would be that would be their likely response. So, Arkansas can’t help him because his convictions there. But he’s not being required to register at Arkansas law. If you’re looking at Arkansas’s registry. If he were rated as a level two or above, you might find his name on there. If he’s level one, you shouldn’t find his name on there. But if you find his name on there, it will say living out of state and Arkansas is done with him. So now, the question is, what can you do in Missouri? Well, he’s got to be eligible to file a petition for removal in Missouri, which they do, they do have. But unfortunately, it looks like that there are a lot of exclusions. So, for example, a tier three category PFR must register for life unless you were adjudicated as a juvenile, which is consistent with AWA tier threes are not allowed or process off. That is one of the one of the check offs in the compliance as tier threes, or in fact, life four times a year. So, if you’re a tier three in Missouri, you’re not eligible, then let’s go down the list if the victim was a child under the age of 17, and the offense was adjudicated after ‘07. So, we don’t have that information. But then the one that’s really gonna knock him out if the offense was not in Missouri. So based on his letter, he’s not able to file he’s not eligible. Now, this would be an example of a teachable moment. Now, there would be some attorneys who would want to file a removal petition, even though by black letter law, he’s not eligible. What you would file would be a petition for declaratory judgment and a case like this. And you would ask the Missouri Court, which I don’t know what they named their trial level courts, but you would ask a superior or circuit or district or whatever the trial, a general jurisdiction court, if you would ask that court to declare that as a citizen of Missouri, that you would have the same rights and expectations that a person who, who was convicted out of state should have the same rights once they became attached to Missouri, and you can only achieve that in a declaratory action. You would invoke the Constitution of Missouri, you’d look for the equal protection clause, you would cite to the equal protection clause in the US Constitution, and you would argue vehemently in that vehicle, if you were to file a petition for removal, using this process. The judge would say, Well, now, now, let me get this straight. You were convicted in Arkansas, right? Yes. Okay. The black letter law says you’re not eligible to file one of these petitions. Why are we here? If you were to file a petition for declaratory judgment, you’d be putting forth arguments that could be raised in that vehicle using that process. And you could, you could expand the scope of the judicial examination. So that’s why it’s so important. Did you find the right type of action? But let’s go through this list if you were ever required to register on that abolish Act. The Federal Sex Offender Registry, SORTA is a straight copy of Missouri’s sexual offense registry website. This is where I got these bullets. Or if you currently have a pending case, or a prior case for failure to register. So, it looks like to me that he has a prior case because he’s in prison for it now of FDR failure to register. So, he’s disqualified on the basis of that, that looks like that they could easily declared that he’s these required under the Adam Walsh Act criteria of a sexual offender. And it says he’s out of Missouri, I would say no hope and emphatic petition for removal. Now remember, this is a non-legal opinion. This is my personal opinion, but I can read, and I can reasonably understand what I’m reading. So therefore, the only hope I would see would be for him to file a petition for declaratory judgment and to make some constitutional claims that sort those, whether they’re whether they will work or not, we don’t know. The bad thing is if he goes back to Arkansas now, if he files in Polaski County, he has a conviction out of state. And if I’m the Polaski County prosecuting attorney, I’m going to say well, Judge, you shouldn’t release this guy because during the time that he had left and lived in other states, he had difficult to comply and we would be turning loose a tidal wave of risk on this community if we’re really step that’s what I would say. And if I can think of that, I’m quite sure they can think of that.

Andy 36:36
You would think should I play the track now?

Larry 36:39
Sure.

Andy 36:43
Course now it doesn’t want to do it. Oh, my God. Technology explodes on me, Larry, right when I need it right.

(Audio Clip)
*The most hysterical laughter ever. Just imagine the craziest laugh you’ve ever heard but times it by over 9000.*

There. Right when I needed it explodes.

Larry 36:59
Well, you can clip it back.

Andy 37:03
And I’m shaking my fish Damn your technology. So, and then we’ll move on to the next thing and you gave this to you put this in the box to share you want me to do like me to read the poem. Forgotten walls? Sure. This was just a heart tugging thing that I thought that they deserve some recognition, and it is very well, and we’re going to give the full name? (Larry: No.) Okay. I will then clip these things out later if it says its person named Jeremy says

You cannot love from prison.
You cannot know the way
Your little child’s arms embrace you.
They take that part away.

They take away the friends the family
They call us to fray most cherish ties
Too much time, excessive time
From inflated charges. And P.S. lies

Judges judging askari judging judges without compassion
Leave a spark of hope so small
As distance between each phone call grows
Behind forgotten walls.

Sometimes the sadness of it all hits home
The more you’re here, the more you’ll see
When 162 inmates live together
And you walk by those phones

And…….
They’re empty.
There is truth in that part. Larry, they I have seen banks have phones and there’s 100 people in there and the phones are just like they’re just empty. So sad.

Larry 38:24
Well, the touching part to me was the note apparently from the kid

Andy 38:31
that says I miss you. Dear Dad, how are you? School is finally over. We are moving and going to is that Wisconsin? Sorry, I can’t read the little young person’s handwriting

Larry 38:48
But I’m assuming sketch a sketch of his child and then and then that for to receive that from your child.

Andy 38:56
Oh, yeah. And the kid is holding someone’s hand and the outline of dad is like dotted lines. It’s, it’s very sad. That it is its pretty crappy system that we have Larry. And then moving right along. Are you ready to go 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 registrymatterscast@gmail.com you can call or text a ransom message (747)227-4477. Wanna 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 or Stitcher or tell your buddies that your treatment class about the podcast. We want to send out a big heartfelt support for that. On the registry, keep biting. Without you, we can’t succeed. You make it possible. I think we’re at the Georgia case now.

Larry 40:08
Yep. That’s where we are. Cool.

Andy 40:11
This is a whole list of questions that we put together regarding the thing that happened in Bucks County a couple years back where they were putting signs in people’s yards to tell them to don’t Trick or Treat here and whatnot. And that went to court. And then there was a, what was the thing where they accepted the two parties? I can’t remember what that’s called there. Can you remind me quick? The summary judgment summary judgment, I think, right. No,

Larry 40:38
Yep. Yep. Yep.

Andy 40:40
Okay. Um, so I will be giving you people put this 64-page brief in there. And there I read a lot of it in the folder it has to do with challenge NARSOL filed against Butts county sheriff in Georgia. And I thought you said this case was settled. That’s kind of where I kind of remember us leading off with this.

Larry 40:56
So well, I got confusing because there were two cases filed in Georgia. They were filed in Bucks County and Spalding County, and they were two adjoining counties in the central part of North central part of Georgia. And, and the Spalding county case settled. But the buts County Sheriff vowed that he had put his hand on the Bible. And he would take this all the way to Supreme Court. So that’s the one that that we’re still in court litigating.

Andy 41:27
Now that you did confuse me because of the two different cases, I thought the judge granted an injunction in the Bucks County case which prohibited the sheriff from imposing this requirement. Let me back up a little bit here. Is this law in Georgia or by what authority do the two sheriffs require the signs to be posted?

Larry 41:44
That’s the whole basis of the …you’re correct. That’s the whole basis. We did get an injunction in 2019. In the Spalding County Sheriff decided that, that voluntarily not to erect the signs, but the birds can assure insisted on a flight. So, we did get the sign the injunction that prohibited the displaying of science in 2019, for that Halloween, and the court presumed that the case will be resolved by the time Halloween rolled around in 2020. And in fact, it was the court ruled in favor of the defendants. And that that’s the basis for why we’re appealing the county defendants one

Andy 42:27
and this happened in the US Court of Appeals?

Larry 42:30
Yes, we’re up on appeal now at the 11th Circuit Court, which is based in Atlanta. And we were we filed a brief last week and then the amicus briefs will be coming in this week. I’m working on an amicus. I’m involved on both sides of it. The appellate brief by the attorney that that we retained. That brief was filed Wednesday, then a week later the amicus briefs are due. So NARSOL in conjunction with Axel are filing an amicus brief. I’m involved in that as well. So, we are at the Court of Appeals.

Andy 43:09
Okay, and remind me the Court of Appeals, there is 125 1020 steps below the Supreme Court.

Larry 43:15
It is just one step blows Supreme Court.

Andy 43:18
All right. Um, I went to the trial that was here that was held it was in the Macon Georgia area. And did this come up on a second trial? Did I miss something?

Larry 43:28
You did not miss anything. What you went to be the injunction hearing. And you where you were sitting at the courtroom. But then, after the injunction was granted to protect the parties during that Halloween of 2019. Then the next thing process would be for the case to proceed to trial. So, the court confers with the party’s counsel and says Where are we going with this? And this case, both parties decided that they were going to move for summary judgment and

Andy 43:57
they did. I’ve heard you rail against summary judgments the way you dislike them greatly. I’ve heard you say on multiple occasions that you just don’t want to do that you want I mean; we can walk back to the case are Alaska, the Smith versus doe that if I’m not mistaken, that was summary judgment. And so, in this case, it was not clear like the signs were they on private property or within the public right of way. There were a whole bunch of questions that weren’t answered if was it permissible that the sheriff be allowed to do this? Does it include signs that make a sheriff happy? Right away, land is still owned by the person and the usage is very limited. Those two issues. Oh, I’m answering your question. Darn it, man. Sorry. I flew off the script a little bit.

Larry 44:52
Yes, it was decided by summary judgment and I do rant and rave about summary judgment because what happens is when you’re litigating a case and you’re trying to decide how to get resolution. The lawyers will come tell you one thing. And I’m telling you the whole story. The lawyers will tell you that they do this because it’s the right thing to do. To resolve the claims quickly, what they leave out, is that that preparing for a trial is an awful lot of work and a lot of awful lot of expense. And it’s going to delay the resolution of the case. So, they, they file for summary judgment when they shouldn’t. And I have no objection to summary judgment when it’s appropriate. But that’s when there are no facts in dispute. And this case, in this case, there were facts in dispute. That’s what I was gonna say, a dispute where we’re, we’re, we’re the science on public right away, as the sheriff asserted? We don’t know that. And if they were on public right away, what is the permissible use of that right away? We don’t know that. Does it include signs that like the sheriff happy? Or does it include only utility easements, and traffic control science, we wouldn’t need experts to testify on all those things. Because the right of way, is still owned by the private party who owns the property. And these issues would have been more appropriately fully developed at a trial. But we didn’t have a trial because we moved for summary judgment.

Andy 46:22
I was reading through the brief. And it’s not just as simple as the easement is 10 feet past something, it’s not nearly that simple. Because maybe they put the waterline 20 feet in instead of 10 feet in, did they mark, did they do any sort of land surveys of where the easement ends on everyone’s property. They didn’t mark where they placed the signs, there were a whole bunch of other things that were going on in the case that that could have been swayed in our favor, that would have just made it a slam dunk, it seems to me.

Larry 46:53
That is my concern. Now since I’m not licensed to practice law. And I don’t have the horrendous overhead that these lawyers have. And I think the last count I got they said that they’ve got about a half million dollars’ worth of worth of billable hours now that the core site is trying to try to maximize your billable hours. But it takes us now been going on since 2019. So, we’ve gone through quite a lot of activity. For this time. When you have a high dollar office in downtown Atlanta, you have considerable expenses. And there’s a lot of hours involved in this case. And so, it’s easy for me to say what you should do. But the reality is that that’s one of the things that that holds us back is that we end up trying to take the shortcuts, because of funding issues. We’ve had, we’ve had attorneys’ approach, I’ll say that they they’re going to bring down the registry, if we’ll give them $100,000 in their nest egg so that they can so that they won’t have to be worried about out-of-pocket cost. Well, we wouldn’t be able to write very many $100,000 checks before we’d be out of business, because that’s how little funding we have. So, we couldn’t write $100,000 check. But even if we did, if they’re into it for a half million of billable hours already, you would see that that would have already been extinguished. So that’s one incentive for summary judgment, you want to get a resolution. And then you want to be able to file your petition for attorney’s fees, which are recoverable out of 1983 action. And that’s what they’re hoping for.

Andy 48:27
And just to clarify a point, I guess the reason why you would use a summary judgment is I think the term would be judicial economy. I think we talked about when we were going to file that Georgia case of bringing everything like a class action where we would like kind of Sue all the courts, all the counties in the state under one big, not class action, but similar, and that would make it just easier for them to do one judgment instead of 158. Is it here? 159?

Unknown Speaker 48:58
Yep.

Andy 49:00
Isn’t that a reason why you would use a summary judgment is just to like, Hey, we just agree the judge can rule it no trial, no jury, no, all the extra overhead.

Larry 49:08
It does aid in judicial economy. But there must have to be no facts in dispute. Now, that issue that you’re citing judicial economy would have been that we had several Superior Court judges that despite the Georgia law that said that a person after two years of active supervision, if they had paid their if they had done certain things that they would be automatically converted on supervised to administrative probation. And those judges had invented by judicial field, something that wasn’t in Georgia statute. So, we were trying to figure out how to subject all the Superior Court judges who had issued such orders without having to do one by one what we could file but, in the meantime, the Georgia legislature changed change the rules of the game, which is exactly what we figured they would do.

Andy 49:55
And I guess we could make a somewhat of a comparison judges don’t write long Neither do sheriffs.

Larry 50:01
That that that is correct. That’s the whole basis for this appeal is that there is there is no Georgia law. And that’s what the attorneys argued he’s arguing the district court which the trial judge Treadway believes name is; He entered and granted the Applies motion for summary judgment and dying appellant denying a balanced motion because it misapplied the Supreme Court standards for determining whether Applies were compelled speech. And that’s what this whole thing, our biggest argument is compelled speech. And our attorneys argue regarding whether a citizen endorses a message, forcing her to host or respond to a message which the science were with what which she disagrees violates her autonomy over what she chooses to say or not say, the science deprived appellants of their autonomy to determine what they would and would not say on their own property. And then he goes on to say no court has ever found such government dictate expression to be constitutionally tolerable. And so that that’s what that’s what this is all about folks, you know, the sheriff of butts County, decided that he, Gary long, was going to force people to not engage in any decorations or any handing out of candy, or at enjoyment of Halloween, because he felt like that was the good thing to do for his community. And he was going to force the people who were on the list of registrants in his county to convey that message to the entire well, whoever happens to see the science that that that that was his prerogative, do that. That is not his prerogative, we felt strongly about that. Just like the driver’s license, conveying that that your PFR we feel equally strong about the states who require you to convey that message. And thankfully, the courts are beginning to agree.

Andy 51:51
You have something there at the end of that block that says, but nonetheless compelled to host it, which triggers strict scrutiny. Would you dig around that for a minute?

Larry 52:02
Yes, we’re arguing our attorneys are arguing that this is that this should it be reviewed under strict scrutiny relevant than the most relaxed standard, which is, which is so low that just any anything qualifies as strict scrutiny. Then there’s intermediate scrutiny. And so, we are arguing that this requires since its first amendment, strict scrutiny that are compelling a person to speak, you are obviously you can convey can compel people to speak. We do that in several circumstances. And we’ve done that all throughout the ages back during times of epidemics we can we compel people to announce to the public that their house was under quarantine. We compel people in some states, ARVs included that if they have convicted of a DWI that they must have a specially DWI interlock and their licenses so noted, I mean, but you cannot just compel people to speak without a very narrowly tailored in the case of DWI. It’s narrowly tailored, you went out. You didn’t, you did this, and you’re still being punished for your offense. Many people in the sexual offense registry have long since completed their punishment. There’s no unique and narrow tailor to this. And the case with the width of the sides that were posted on people’s houses back. And I brought this up to an attorney, he said, Blair, can you think of any situation where people are forced to speak or have been asked, I can think of dozens of them. And I said, example that will, that we as a but those people had had due process, they were determined to have a contagious disease that put the public at risk, if there was any contact with them. That is a justifiable use of compelling a person to speak because otherwise, you might not know. And you might become infected and spread that infection that’s different than being able to PFR list.

Andy 53:57
Sure, sure. I mean, I don’t think it’d be a stretch. If someone had abducted a child on Halloween, that that person would be narrowly tailored to have a sign in the yard saying, Don’t Trick or Treat here.

Larry 54:09
I think that would be narrowly tailored. And I think, I think I think that would probably survive the test of what you could do with strict scrutiny, but it must be the strictest scrutiny requires the narrowest tailoring of a compelling governmental interest. There’s no narrow tailoring here, if everybody in his County was required to do that.

Larry 54:32
Sheriff long, if you’re listening, you need to learn to narrowly tailor these things, and you might get away with them.

Andy 54:42
Moving along, where will the will there be amicus briefs filed as well?

Larry 54:48
Absolutely. My understanding is that the ACLU of Georgia is going to file I will not be involved in that and my understanding is that Axel delights for constitutional sexual offense laws. As taking the lead, and we will be signing on with them, which are our input will be that we will say, gee, this looks pretty good. Thank you for your assistance. And we will be signing on I will have just very modest involvement in that I’ll bet to get to be the grunt who produces the printed copies and transmit stuff to the 11th Circuit Court of Appeals.

Andy 55:22
Outstanding. Any anything else, I find this the first amendment stuff, I find it to be super interesting. Regarding like your license plate, I kind of think you don’t own your license plate, you go register, and you pay for the privilege to have that on your car. So, you can then go drive around. So, the government can’t force you to put their message there to beyond whatever would be necessary to identify the vehicle itself. I To me, it sounds like that. And so, then posting some other kind of sign in front of your yard that says things about you seems problematic. That is one of the cases

Larry 55:59
is excited to Live Free or Die that you New Hampshire, whoever it was that. So, but we’re looking forward to this case, we hope we went Of course, because we’ve put a lot of energy into it. But you never know what the courts are going to decide.

Andy 56:15
If you want to find the appellate whatever submission, what’s the right word

Larry 56:24
Opening brief,

Andy 56:25
okay, though, it’ll be in the show notes over at registrymatters.co. Larry, we’re going to cover a few articles that we haven’t done in quite some time, and we have 10 ish minutes to do it. And do we have anything else before we get to this? Yeah, let’s

Larry 56:40
let’s skip the first one. That’s going to take too much time.

Andy 56:42
Alright, so and then we will move over to one from Newsweek that says Washington State Supreme Court rules, drug possession law unconstitutional, and five, four decisions the state of Washington State. Why did you put this here?

Larry 56:56
Well, there are those who mistakenly believe that sexual offenses are only things that are strict liability offenses. And that’s just simply not true. And I put this in here because it gives me a chance to bash the Democrat Party.

Andy 57:12
Oh, God, here we go again. So why is such a republican?

Larry 57:17
So, I get I get accused of being partisan. And I keep saying it’s the whole about policy. Now, this is an example of the courts have provided the Washington State Legislature all the cover that they need. But the problem is it calls 1000s of convictions into up into doubt, because the law was unconstitutional. And they don’t want to have to go through and undo 1000s of convictions. So, what they want to do is to try to make something that’s unconstitutional constitutional, so a democrat lawmaker, has proposed a rewrite of the unconstitutional law to salvage it. So okay, I’m not any happier about a democrat lawmaker, if I were if it had been a Republican lawmaker. So therefore, put this down on your list that Larry said that he was unhappy about a proposal to salvage a bad law. it’s unconstitutional. You have the cover? Let it go. Let’s unravel these convictions. It’s going to take some time. Let’s get these people back to pay in taxes and working and let go of it for Christ’s sakes, let go of these people.

Andy 58:27
Do me a favor, and Could you expand on how strict liability applies here?

Larry 58:33
That’s when you don’t have the knowledge that they were in fact, trucks.

Andy 58:39
Okay, okay. They’re my mom’s they’re my kids. And I’m borrowing their car.

Larry 58:43
Yep, several things. Okay, so, so. But so, let’s make sure we call out this guy by name that the proposed this democratic state Senator Mark Molot. Call the court’s decision, an overreach. He has entered a new drug possession law that explicitly mentions knowing intent and I haven’t read the proposal, it might be that it that it contours, the constitutionality, but just let these people go. You had a bad law for all these years and get over it. So

Andy 59:19
I think it seems that hyper generalizing Team Read is, in certain respects is a little bit more like do what you want to do in certain respects. I don’t know that it’s necessary in this case, and old not

Larry 59:35
in this case. He’ll have plenty of Republican support if there’s any if there are any Republicans in Washington still left. Because they’re part of the law enforcement industrial complex, but they’ll write but I’m just disappointed that it did. It would be I would expect it to be introduced by a Republican, and I would expect the democrats to be vilified for not supporting it by the Republicans. But I’m always I’m always disappointed when it’s a democrat that takes the lead, but they need to be called out and they’re being called Hold up, just like I’ve called on democrats so many times before.

Andy 1:00:04
I’m wondering, I don’t see anywhere in this article, which justices voted Which way? Just curious. Went down, trying to look quick to see if I see any of the Supreme Court justices’ names, but I don’t see anybody. All right. Interesting. I would like to know, I’m always curious about how they voted by which President nominated them and whatnot.

Larry 1:00:24
Well, both things are state days a state Supreme Court, so it won’t matter. You have a president, nevermind,

Andy 1:00:28
nevermind, nevermind, nevermind, then I wouldn’t know them anyway. The next one comes from the collateral consequences Resource Center, which is really a total mouthful to say, President Biden orders Department of Justice to fill facilitate voting for people in federal custody on under supervision. That’s kind of neat, because we’ve talked about the logistics of trying to bring in ballots for people setting up how like it would be very challenging should be done, but very challenging for people that are in custody, I guess that would be pretrial.

Larry 1:00:59
There’d be people in federal custody, that would be that would be eligible to vote and some state laws there, okay. It’s where you’re where you’re where you’re not disenfranchised. So, but only put this in here, just to point out that those of you who claim that you’re for criminal justice reform, and you have a hard time acknowledging when the democrat party does something good, here’s an example of the Democrat Party, putting forth something that potentially is very good. They’ve put a copy, I’ll put a link to the executive order. And the fact that it won’t restore voting rights to a lot of people because you must be eligible under state law. But at least if you are eligible under the state law, that you’re incarcerated, or on supervision or whatever, this is a directive to help facilitate the voting of those people. That is a positive step. And I’m going to come in President Biden for doing that. Just as I’d be criticizing him if he did something that was contrary to what he ran on, which was criminal justice. One of the things was criminal justice reform.

Andy 1:02:03
I would like to read the opening line here on purpose. Number one, it says the right to vote is a foundation of American democracy, free and fair elections that reflect the will of the people must be protected and defended. That’s cool. I have a hard time disagreeing with anything said they’re there.

Larry 1:02:20
So Well, all right. Let’s watch it and see if they get anybody to involved in voting.

Andy 1:02:28
Sure, sure. Sure, sure. I think you’re going to call this one funny. This one comes from the San Francisco Chronicle. Old age is not reason enough to release a PFR. State court rules. What happened here there?

Larry 1:02:40
Well, this is a person 74 years old, who was in civil commitment. And he had done, he had done his best previously to get discharged from civil combat, but what just what anybody in their right mind would do, because it’s all a hoax. The whole Sham of civil commitment, after you’ve done your time, is a disgrace to this country’s basic moral. I mean, it just defies everything about who we are. But anyway, he had, he had been disappointed that they had not released him on one of his efforts to be discharged from civil commitment. So, he told

Andy 1:03:14
Larry, why did they deny them?

Larry 1:03:16
Well, he had he had to, he had told the judge, and that and that process, that he that he did not like the fact that they were denying his petition for release, because he might reoffend and he said, quote, nobody can predict what I might do. Even I can’t predict what I might do. So, so this, this petition to be removed to be released because of COVID was denied. And the court cited to his every word. So, if what he said previously, that don’t want to predict what he might do, including himself. So, this just goes into Larry’s general rules do not say, at a court proceeding with a stenographer, typing away, and in a usual auto recording, do not make statements like that.

Andy 1:04:12
Anything else? And then we can wrap things up here with the final little tip here to cover that.

Larry 1:04:22
That was all I wanted to say was that it said that’s that he couldn’t get out. But he kind of had his own words used against him. So be careful what you say.

Andy 1:04:32
Yep. And then finally, from the appeal, we have an article that says Biden must nominate us attorneys who Whitlam implement needed criminal justice reforms. I was glancing through this. I didn’t realize that there were 93 I think it says 93 federal prosecutors, and I’m thinking that we should nominate Larry Krasner Yes, there are 93 us attorneys. Larry Krasner is the Philadelphia one that’s super progressive. I think that would be it. You’ve said repeatedly that the person that can slow down like put the brakes on it immediately would be the prosecutors and this would happen at county, state and federal levels. We wanted to slow down the number of people in prison is to have prosecutors that don’t prosecute as hard.

Larry 1:05:12
That is correct. And as we, as we’re beginning to launch this administration, as we’re not launching it, but as it’s being launched, one of the things that that’s one of the important things, we hear a lot about judicial appointments. It’s also very important about the US Attorney’s offices around the country. Normally, they’re asked for their resignation, because they’re holdover appointees from a previous administration. Some are reappointed and some are not. But if you’re serious, President Biden about criminal justice reform, you’ve got to take a little political heat, like Obama did, and appoint people that will actually issue orders that will undo what the previous Department of Justice did, which was to seek the maximum penalties, and to throw the book at everybody. And you’re going to have to do that these people are gonna have to be serious about that. And we’ll be watching, and we will be criticizing you, if you don’t do that, because that’s what you ran on. And, and we will hold you out to the public saying that you ran, and you are not doing what you said, just as I said about the Vice President, I’m hoping that she had that epiphany, and that that was a real epiphany. And if she actually does support reforms, and stop locking every everybody up, that’s not what she did when she was Attorney General. So, we have to wait and see. But these are very important appointments that are going to be made, and we’ll see how they operate. But jeff sessions are the first thing he did is instructed all 93 of those to seek maximum penalties and all the enhancements correct. And, and, and Obama had done, and I had done that by saying, to not seek enhancements don’t fall at the highest possible charge. And those things affect how long and how many people go to prison.

Andy 1:06:56
There’s a clip of one of the bullet points, Biden has pledged to scale back mass incarceration and address the racial gender and income disparities in the criminal justice system. He was attorneys are responsible for many of the decisions that lead to those problems and will be essential to fixing them. I guess it’s probably comments more so from the, from the appeal. But yeah, that I don’t know why we lock people up for so long there, other than it’s what we’ve always done, so it should be what we continue to do. And it would be someone stepping out, potentially taking a risk to do it less than then, quote unquote, the tidal wave of criminality that you often reference.

Larry 1:07:33
Actually, we have not always done that. It’s really been since the decade of the 80s, that we that we cracked down on crime. But there was a time when the federal prison operated on a medical model that they believe that that crime was based on something could be treated. And the goal was to rehabilitate people but for decades now we’ve believed in this very tough lock them up and the conservatives will tell you that it’s worked, they will tell you that the reason why crime is down is because this toughness that they that they have advocated for has been successful. And you have to you have to give the sub concession. As they locked up more and more people for longer long periods of time, crime rates have gone down precipitously.

Andy 1:08:14
Sure, I remember when we’re covering Larry Krasner that he said to his prosecutors that if they’re going to spend more than I think it was three years to write him quote unquote, an IOU to say it was 40 grand a year, whatever the number was, they’re using 4050 grand a year. So, if you’re going to put a person in prison for 10 years, you’re going to write me an IOU for 50,000 times 10. So, 500,000 bucks. That’s what the person’s crime is worth the state for putting them in prison for 10 years that like for 500 grand you better there’s so much other stuff, the person loses income. They’re just a mess. I hate it. I hate it.

Larry 1:08:52
So, well. I would like to try experimenting, using that money with the offender. A portion of that to see if we can actually train them to but see that’s too much of a liberal point. We can’t do that.

Andy 1:09:03
I understand. I think that that makes a lot of sense. But do something to it to put some of that money back into helping the person not continue to have a criminal lifestyle. I think that sounds like an amazing idea. I vote you to run for the next politician that can do these things. So, I did it. Anybody else want a second?

Larry 1:09:28
How do people contact us?

Andy 1:09:31
Oh, of course, we’re going to run right to contact us. Well, you want them to send voicemail. (747)227-4477 write it down, read it out. Don’t um but make it short. 30 seconds. 60 seconds and I will damn sure play it on the on the podcast. You could also reach us over at registry matterscast@gmail.com You could also find us over at registrymatters.co. You can find a way to contact us there as well. Larry, our Patreon people are the and they support us, and they make it worthwhile. And it is a token of the appreciation that they send us a little bit of money every month. And you can find us there at patreon.com/registrymatters. And Twitter, YouTube. Where else there is a Facebook page. Don’t tell anybody. And that’s all I got, man.

Larry 1:10:20
Well, it’s a pleasure joining you again.

Andy 1:10:23
And that is why I am here. Perfect. We did it awesome. Every time. I love it there, you’re the best. Appreciate it. And we will oh one other thing we will probably not be we will not be recording. It’ll be April 3 that we are going to skip. So, two weeks from tonight, we will not be recording. And otherwise, Larry, you’re the best and I will talk to you next week. Goodnight

Transcript of RM169: No Legislating From the Bench in Wyoming – Textualism Explained

Posted on March 15, 2021 by andy

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

Larry 00:12
32198. That’s, that’s why you count down.

Andy 00:20
Totally. We can just throw an 8675309 there too, if you want to.

Larry 00:25
Well, you know, that was a song from a long time ago. What was that? I

Andy 00:30
know, yeah. 86753. And I’m already recording. So this is going into the podcast, just letting you know.

Larry 00:36
Alright, 321, recording,

Andy 00:41
recording live from fyp Studios, east and west, transmitting across the internet. This is Episode 169 of registry matters. Larry, Saturday, you did exciting stuff today. What’s up?

Larry 00:54
Oh, I did. I had a I had what normally would have been a fun meeting in person. But we did it online political shindig, where there were 700 of us on a virtual meeting. Oh, my god,

Andy 01:05
did you guys use zoom for that?

Larry 01:09
Yeah, yeah, it was zoom, because I remember I had that’s what I hit to get LinkedIn. And it was the zoom link.

Andy 01:13
Okay. So interesting. For You know, I’m a tech person. And there have been already existing platforms to do this Skype would probably be the most well known one. And the pandemic starts and why didn’t Skype just own the market? They were already in place and all that? How did something come out of nowhere called zoom? dominate this, this market and have stock increases over the past year? just crazy numbers, not like GameStop numbers, but actual because they are providing a product? And I guess though, what do you think about complete tangent? What do you think about products that are completely virtual, like, zoom being a, like a stock purchase thing?

Larry 01:55
Well, I mean, obviously they’ve they’ve cap capitalized and executed and a space that became available for that for that opportunity. But it’s hard in the traditional sense for people who like to measure and value valuation, it’s very difficult for you to measure the long term viability of a zoo, because the question the unknown question is what’s going to happen? When normal operations when we’re more back to normal? Will? Will people continue to do their meetings? And will zoom continue to enjoy the popularity that it has now? Or is it? Is it or is it a CB radio passing fad?

Andy 02:37
Okay, I’m intrigued because you not being a technical person you had made mentioned on this particular issue, when we were talking pre show about how convenient it is for it to be an online thing. We didn’t have to drive one to five hours and sit in a hot room, you could go get your little videos from the candy machine or whatever, while you’re sitting there. It has huge benefits to it to do it virtually.

Larry 03:01
Oh, it did. It was it was very enjoyable. that aspect. I didn’t like the part that I couldn’t hobnob with people that would like the event that I was at I was participating in today. That’s a lot of party regulars. And people who you would have the opportunity you wouldn’t normally be with to put in a good word or to ask them. It’s just the opportunity. When you’re in a zoom meeting, you don’t have the the side chat going that you can have if you’re if you’re in an in person meeting, but they’re 700 delegates, you pair off in a group and you have a conversation and then you it’s just not the same. But yes, they were there were certainly certainly advantages to be there. It was very convenient.

Andy 03:41
I gotcha. All right. Well, let’s see, before we get going before, be sure you like and subscribe on YouTube. And also like and do whatever you got to do on your favorite podcast app, whether that’s pocket casts or Apple podcasts, I guess it’s called Google podcasts, all those things. do all of those things help out people finding the show there. What do we have going on for this evening? It’s a jam packed show, as I recall.

Larry 04:04
Well, we we have we have some questions or one from the free world and I’ll take one from the inside. We have a letter. We have two letters. Actually. One One was filled with you people’s it’s just for entertainment doesn’t really have anything to do with our issue. We have we’re going to talk about a case out of the Wyoming Supreme Court that deals with pfrs. And we’re going to talk about Governor Cuomo, we’re going to talk about the fabulous work that that nagarsol just did with the filing of an amicus brief in the Supreme Court so we will never get to all this stuff.

Andy 04:41
We might not so that there might have to be a part B show, maybe. I don’t know. We’ll cram it in here. We’ll talk really fast. You ready to run?

Larry 04:50
Let’s do it.

Andy 04:53
So first up on the docket is this little comical thing that people complain about us a few people but you found this little snippet. And it says, Dear Chairman, chairman of ellia, whatever that is, but whatever. Hey, I’ve got good news amongst all the sharp criticism pouring out from me, SB 80. To pass today I know how much that deflates, King john, first thing out of his mouth yesterday was curses for Stein born, go figure. See you people at the racketeering Alliance couldn’t be honest, if you people consider this as punishment, then it is well deserved. You people build scheme upon lie, a lie, a foundation of sand, you folks, which we decided is kind of like a polite version of saying you people had to do stupid crap like push a tax funded kickback, though my County’s Procurement Office during a rigid public binding process in 2016, thinking you weren’t going to get caught you people and it goes on. So that’s funny,

Larry 05:51
I think, I think I think that was public bidding process, but his type, but there’s so many typos and stuff that the characters that I don’t know what caused them to be distorted. But that was exactly the way it came in, on the senate email. So I just, I just cut and pasted it exactly what was in there. So. So I’ve heard, I’ve heard people, I’ve heard people use you people. But I think he tops us.

Andy 06:16
Very much. So all right. Well, that was just for some fun. And then so this will be the first question that came in and says, you to get on my nerves because you don’t seem to have a clue. Last episode, you cried your crocodile tears about people being held in prison after the parole eligibility? Boo hoo. I hate to tell you that it happens all over the United States, people are eligible for parole and are still in prison. Do you effing people live in caves? Come on, man, try to understand the real world. And what’s even sadder is that you don’t seem to realize that those serving federal time aren’t even eligible for parole at all. Wow, lady, that’s kind of a scathing letter that somebody wrote in?

Larry 06:59
Well, let’s see. It’s better. The letters to the editor for the Albuquerque journal about 35 years ago, and he said that when he got a letter that said, I know you want print, so he worked really diligently try to find a way to justify printing it. So well, we get these kinds. As long as there’s not foul language and personal attacks, I think I don’t consider that a personal attack that he’s hearing something different than what we’re trying to communicate. So I thought it was worthwhile. If one misunderstood it, maybe others did as well. So I’m fairly sure that neither one of us live in caves. And I said we do. Sure we do understand all your points. Unfortunately, you may have missed the point that we were making about the situation in Pennsylvania, which is distinguishable, you stated that many who are eligible for parole are sitting in prison. While that is true, that’s not the same situation as what exists in state of PA. Those have actually been granted parole not eligible, but they have already been approved. And given a certificate of parole. If I were licensed to practice law, I would consider filing a lawsuit alleged that the detention is unlawful and shelter certificate or parole as my primary exhibit because it says you have been released and subject these conditions and assuming you’ve signed that parole certificate, my contention is that you should be out in the streets. In addition, if I were in risk management for the state of PA, I would be very fearful potential liability. What happens if if one of these people get hurt or killed and they’ve been paroled in they’re still sitting in state custody. So I I’d see it as totally distinguishable. In terms of parole in the federal system. We’ve actually talked about that, I think twice in the last several episodes sets that says come up and and and their parole was abolished in 1984. Now the people who were sentenced under those laws, they were able to utilize, I mean, they didn’t magically convert to the new law. So people who are eligible for parole, they wrote out their sentences. It’s possible there could still be somebody in the BLP that had a life sentence that might be eligible for parole under the old, old law, but we don’t have that as an offering anymore. In the federal system, you serve your time, might as your 15% 50 to 54 days a year, whatever it comes out to, that comes off the end of your sentence. And then you exit the prison compound when you’ve served your time. My state, we have the same system you get 50% off of some offenses and you get 50% off serious violent offenses. And you should walk out that gate, but we have a period of supervised release, but we put the name parole on it. And we continue to hold the people if they don’t have suitable housing, which is even more hate us than what’s happening in Pennsylvania. Because here, they you haven’t gone through any process to be ready So you’ve got a meritorious early release, as you have in pa where they’ve analyzed your risk factors. And they’ve done all this stuff with their elaborate screening. Here in New Mexico, you’ve done your time, and you still don’t get to go home. So it’s very heinous what we’re doing here.

Unknown Speaker 10:17
And

Andy 10:19
tell me what a remedy for this would be. Is this just that the Bureau of Prisons which the Department of Corrections at whatever institution, you want to say, is that just that they could then say, we will release you? Or is there? Is it a legal binding thing that keeps them from doing under their own internal policy type thing that’s doing it?

Larry 10:39
It’s a combination, if you talk about New Mexico is a combination of our law, the law says that, that they shall serve that period of supervision, under under conditions imposed by the parole board, as identified by the parole board, was the parole board puts one of the conditions on there that you have to have suitable housing, and magically since they have the 1000 foot policy, not law, but policy, nothing qualifies. So you have people who can’t go back home, even though they’re technically have completed their sentence in its totality, in terms of the prison component of it. That is something where a legal remedy is the only thing because legislatively, we can’t, we can’t seem to gain traction with it. The The fear is that you’re being soft on pfrs. If you try to propose something that actually gets pfrs out of their time, can you imagine such a novel concept of letting people go after they’ve served their time?

Andy 11:35
This Teresa is the H, the head person in in Pennsylvania she posted an article in chat. This is one person who was recommended for approval by the parole board did die, and that the articles from reason magazine and it was February of this year. So that’s not even it’s not like something that happened six or 10 years ago. This is right up recently person data COVID while awaiting mercy from the governor, and been granted parole but had not been released yet.

Larry 12:01
Well, I would I would consider a possible legal action, there would not be a strong in my view it if if the person got hurt in a prison uprising. But but the the fact of the matter is, they were granted parole, and they were still in prison. So I would you don’t know if litigation is going to work until you try it. Unless there’s unless there’s precedential case law that forecloses that and I don’t believe there is any presidential precedential case law because I don’t think anybody’s had the creativity to litigate that.

Andy 12:34
Just can’t be the only case of people passing away during that little window between being granted parole and then getting out. Because, you know, we’ve talked about the the uprising that you have mentioned in what should we do? in New Mexico, February 29, I think it was or 28th 20 years ago, or whatever. And where he could have been paroled on the 27th and you would have gone home and that one day actually does matter.

Larry 13:03
It absolutely makes a difference. It when it when someone minimises you being in prison one day longer that you have to remind them of 33 dead inmates, and the bloodiest prison right in the United States. And how that one day made all the difference. And I never met him. I

Andy 13:19
whenever one day, what 18 years ago, we talked about parchment and Mississippi, and I know it wasn’t 33 people, but it was 20 ish, 15 ish.

Larry 13:28
So I’m sure that many get killed in parchment. I didn’t I didn’t realize that many. But I know that

Andy 13:34
one day followed that closely, but certainly mattered.

Larry 13:38
it one day can make all the difference.

Andy 13:41
All right, well, then let’s move on over to this thing. It says read a letter to be read from Colorado senator. It says dear Kyle, it’s great to hear from you. And I hope that you and Tammy are hanging in there during such unprecedented times. Thank you for sending such a thorough and thoughtful letter on a topic that typically does not get touched. You gave me a great deal to think about, as you made very valid points against some of the current processes surrounding how sex offenses is handled. I’m sorry, you were dealing with the trials and tribulations associated with making mistakes. But it sounds as though you’ve come out of it on the other end with a healthy mindset and having learned from it, which is the best we can ask for. I agree that this bill might be unpopular among fellow Republicans at the surface. However, your points were compelling. And with the right testimony, I imagine that this might have the potential to gain bipartisan support. Unfortunately, we are only allowed five bills per legislative session. And I have already reached my five bill limit for this legislative session. But I would be happy to meet with you face to face and speak with you in more detail about your sentiments you’ve shared I’m willing to consider bringing legislation on this topic to my colleagues next legislative session so that some of the hardships that you and many like your attorney might be alleviated. I’ve put a business card in the envelope so feel free to reach out and I would love to set something up. I will keep your letter in my records for future reference. Again, thank you for reaching out and I look forward to hearing You soon. Why did you put this in here?

Larry 15:04
Well, I put it in there because clearly this person that wrote the letter, we redacted it for privacy. But the person who wrote the letter has significant standing in the community. If you if you’ve seen the unredacted part, it was it was not a it was not a ditch digger that wrote this, and the person has a relationship with their senator. Okay, and that that is clear about the way it’s communicated to be at least there’s there’s some, there’s some, there’s some relationship of knowledge between the two. And that is a potential door to open. Because as we’re going to see later in this podcast, how the republicans usually vote wrong on everything, if he can actually build this relationship, and get some bipartisan support, some of the bad things in Colorado, may could be improved. So I’m going to reach out to this person that sent this to us and find out if he needs any guidance in terms of how to build that relationship. There’s a lot of there’s a lot of that letter that form letter. That’s what you would say, if you if you have a lip limits, that’s political jargon. But there’s also a lot of personalization in that letter. And seems like Time went into writing that letter. And, and so I’d like the guy in Wyoming who said, I would really help you if I could. But But, but this this person seems sincere. If you look at their committee assignments on the top of the letter, he’s not really donating any committees that are all that related to what we do. But that doesn’t preclude him from bringing legislation and seeking bipartisan support. So I’m

Andy 16:44
not going to go into the closed door session, which I don’t mean closed door, but just their their little. I mean, I realize it’s a committee but a little small group to go discuss and debate the various bills that are coming to the floor to vote.

Larry 16:57
Well, on his particular bill, he will, he will be the one who brings it to that committee.

Andy 17:01
Oh, okay. So I don’t think I realized that I

Larry 17:05
yes. Okay. Well, if he were to sponsor a bill, dealing with this, you present your bills to the committee. Now, you may, since you’re not an expert on subject matter, you may bring someone in to assist you that has more knowledge, and you ask for approval, the committee chair to hear from an expert and the expert can help you along. But he will actually present the bill.

Andy 17:26
But he won’t vote on it.

Unknown Speaker 17:29
Of course, he’ll vote what on that committee? He won’t let it go.

Andy 17:33
Yeah, okay.

Larry 17:34
He would have voted in the committee. But, but but if it makes it to the floor, if he gets it, our committee, and he’ll absolutely vote on it.

Andy 17:40
Do you Okay, I got that part. I was just like this, all of a sudden, someone gets to pinch hit and whatever, and go into a committee and because they presented it, even though it’s not part of their I want to say caucus, I don’t know if that’s even the right term, but a committee, and I was wondering if maybe that then gives them some sort of special vote because they brought it into something that we’re not a part of. Okay, now,

Larry 18:00
they sit at the committee, witness table, just like any other any other person and when the votes taken, they’re not. Now I don’t know how Colorado does it because most of these states are terrified of voting with the public watching. And we’ve got our our legislators vote after they’ve heard the bill. They don’t do it that way. In other states I’ve traveled to, and I don’t know why there’s this. It’s to be it’s like answer the phone that people are terrorized when the phone rings. But But here, they hear the testimony of the public, then they hear the questioning back and forth between the committee members. And then it’s after there seems to be no more question the chair will say and what is the pleasure of the committee, and someone will make a motion to do pass, and then the clerk will call the committee, the committee secretary will call the roll. And if it doesn’t have enough votes to do pass, then I’ll ask is there a substitute motion or usually the substitute motion is to table and, and they do that with the people looking at them that have just spoken. And like I say, since I don’t know how Colorado works, they may they may hold the vote like Maryland doesn’t it at two o’clock in the morning and some smoke filled room but we actually do it here in transparent setting after they’ve heard the bill. The decisions made right then whether it’s gonna move on or not. So

Andy 19:15
it sounds like though and I was just saying this Brenda is confirming all this stuff in chat that it’s to me I can see this going both good and bad. If you want something to get squelched with with some crazy kind of shenanigans, then not with them voting, then if it doesn’t become public that way, that seems like that could be good. But at the same time, I could see where things would be. I guess I could just see it being a double edged sword. I guess it’s really short. Well describe that.

Larry 19:44
Well, we seem to extinguish an awful lot of things that way here so I don’t I’m not so sure it’s as bad as what she’s laid down for a beating. You just have to have votes to table if it’s bad public policy, you have to table it and and you tell me Would you tell you what this does not mean, this bill doesn’t have promise. What it means is it’s not ready to move on, you’ve got more work to do, you may have to bring this bill back next year or the year after.

Andy 20:08
Right. Right.

Larry 20:09
But but but a lot of good bills are tabled because they’re not ready. They’re, they’re problems that came out during testimony.

Unknown Speaker 20:17
And

Andy 20:18
maybe that would be a decent segue over to the it’s not the next thing. But let’s couch that just for a minute, because of the thing that we’re gonna talk about in Georgia, just if that’s a possible thing that could make a bill not ready. And we’ll come back to that in just a second. But let’s move over to this, this first question that you have in here that says, Dear Sir, or Ma’am, though I’m still pre trial status in the Western District of Texas, I’m wondering what you’re organizing what your organization does or can help with? Or what might I be able to help with? There are some fairly fairly serious allegations against me, though, and I’ve been in this pre pre trial status for over three years now. 1100 48 days? Is there anything I can do to mitigate the damages that are coming my way? I’d like to see ease the troubles I’m facing, though. I know there isn’t much that can be done. The courts are going to do as they please, regardless of me, anyway. Oh, yeah. So on Reddit, there’s a subreddit called sex offender support. And people fairly regularly post in there about, hey, I’ve been charged with this, what can I expect, and a bunch of people write in of like, basically, you’re in an airplane crash, put your head between your knees and kiss your ass goodbye, like, I don’t want to completely blow people out of the water. But these charges, and the veracity of them coming after you is horrid? Well,

Larry 21:40
in the old days, I could have given you a lot of information that I don’t have now, because I could deduce it from the circumstances. And the old days, we could, we could conclude that that this person has a high bond that they can’t post? Well, it could be that in this instance, he’s being held without bond. We don’t know that. And because of the seriousness of the allegations, that they can’t be released to the community safely, even though there’s presumably there’s a presumption of innocence. But since Texas has not been on the forefront of bail reform, I’m going to assume that the bond he has there is a bond that he just can’t make it, which may suggest also that he’s relying on public resources, which, from county to county, Texas, vary dramatically, for in terms of what they do. He’s going to need to be very participatory in his case. And he’s going to have to insist on asking a lot of questions, which is hard for a person in custody, because the lawyers don’t wait to come see you. Yeah, they have to drive and go through a lot of screening to get into the institution, and it’s dead time traveling and waiting to be screened down and all this stuff. So it’s going to be difficult. A person who’s sitting in custody has extreme disadvantages. And what is coming at him what is coming at him as that with this amount of accrued time in prison and pre trial confinement, he’s going to get a plea offer at some point. I mean, assuming that the charges are not so heinous, that the prosecutor is thinking of life without parole. But assuming that, that the charges are somewhat within a zone of this person would be expected to be free again, they’re going to come at him with a plea offer. He’s got that many days, how many days? Did he say he’s got

Andy 23:26
1148? So over three years?

Larry 23:29
Well, a lot a lot of felonies in Texas, Cara to 220. And so he’s already got he’s already served more than the minimum time for most of the of the felony sex offenses in Texas that don’t carry like. So he’s got, he’s got to get a plea offer. And if he, if he’s not guilty, it’s going to be very tempting, because at some point, you were down from being in custody.

Andy 23:53
And they could potentially say, time served go home.

Larry 23:59
Well, they could say, time served and go out on probation, they’re not going to cut him free altogether. But he could get he could get a sentence that would be that he would have served enough time that we could be on community supervision, GPS monitoring and all those things. conceivably. So

Andy 24:19
Texas does that very often.

Larry 24:21
Oh, they do a lot more than what you think. Okay, so Texas doesn’t keep everybody in prison for life. That’s a misnomer. They lock up a lot of people but people people go home a lot in Texas, believe it or not. Okay, that only person who wrote to us, the person who wrote to us about the federal system pointed that out. I mean, that that even conservative Texas. And of course he obeyed it the part about that they’ve been sued so many times for overcrowded prisons, but even conservative Texas. They don’t keep people in prison for life. They just lock up everybody, for everything.

Andy 24:57
Gotcha. All right. What I want to circle back around to is that some language specific, I want to I want to have a conversation with you about a specific word. And this is something happened in Georgia and one of the bills. And so I wrote I have a question about the wording in a bill coming from Georgia regarding the specific usage of terms in a bill. In this case, House Bill 194 has the language of shall just wanted to get Larry’s thoughts about how even a three versus five letter word can change how a bill impacts the outcome. And what is being requested of people in Georgia is to contact your senator and get them to change the word from shall to May. And the context here is that we want the the judge is going to be shall impose some kind of sentence verse may impose some kind of sentence. And I wanted to get the skinny from you on how important that would be in a bill.

Larry 25:53
I love this particular bill, it would be it would be crucially important, because what you’re talking about here is what what would be removal of all judicial discretion, when you’ve got those shells in there. And restore Georgia’s recommending Bay, which is the correct language. Actually, the bill should be can’t it’s trying to get past the ruling of the GPS monitoring. That was a favorable decision a few years back into the names escaping me, Park Park Park Yep, park that they’re trying, they’re trying to undo Park. But But this, this this word, but make all the difference. The problem you have here is it has already passed the House of Representatives. And it’s now in the Senate. So So you’ve got a bill in the Senate, where you’re going to have to change what’s come across the rotunda. And that happens on a regular basis. But they start with a presumption on something like this, that the house got it right. So there’s gonna be a reticence to change it. So you’re gonna have testing compelling arguments. And what’s supposed to work with conservatives. And it often doesn’t in this case would be the fiscal analysis, I can just about guarantee you, they have not put the fiscal analysis to this because it would require some enormous calculations to look, you’d have to do a retrospective look at how many people have been convicted under these statutes that would get put would require the shell. And you’d have to do the cost analysis of how much time that that would cost the state of Georgia and prison time for these people. Had the courts been forced to impose that prison time and then the GPS monitor because courts, aren’t they imposing a minimum prison time as well as the GPS margin? Do I have that part? Correct,

Andy 27:42
that the judge shall impose, as I remember reading it, the judge shall impose either life or lifetime monitor, those are the two choices that a judge has for a second offense.

Larry 27:53
Okay, so so what I would attack this with would be, I would go to the people on the Senate side and try to get assigned to a more thorough fiscal analysis, the auto committee that because they’re gonna want to send it to, to, to, to just one committee, and conservatives talk themselves about how they’re fiscally responsible. So you would take that data to them and say, Look, this is going to have a significant financial impact on the state of Georgia, what’s gonna happen is we’re going to have a whole bunch of people who are going to shell have to wear these monitors, and they can’t afford them because they can’t work anyway. So they’re gonna end up back in prison. And there’s a huge hidden fiscal cost of this. And if you can get into conservative bias, which they magically flip on stuff like this, but if you can find on intellectually honest or too conservative, you might be able to slow down the train on this and get this thing to die on the Senate side, or at least to be abandoned, but they’re they’re going to start with wanting to pass it as is. That’s where that’s where they’re gonna start. And that that’s going to be the process to the house. If you look at that. Not a single republican voted against it. There were 50 Yeah, but no votes.

Andy 29:06
I want to pause you before we get to that because someone in chat is asking, Can you can you more thoroughly describe shall versus May. I’m going to give you two examples. One is in the constitution that says that the President shall nominate supreme court justices, and we were talking about a Georgia bill forever ago, basically, at the beginning of our relationship that talked about after two years, you shall be placed on unsupervised probation. What is the word shall versus may mean?

Larry 29:32
Well, that that’s kind of self explanatory. It that there’s a lie, though, shell. So So okay. They they have that arguable lawyers all the time, when they do a probation order for someone’s going to transfer to a state. They put in the order that the probation may be transferred? Double? That’s really great. It goes with the probation department. I looked at that, and I say, well, and the person says, Well, I got to go to Ohio and they say no, you know Whether the judge, the judge didn’t say, Yeah, but it but since you cannot order that Ohio accept the person you put in the order. And I’ve written dozens of these, the corrections department probation and parole division shall initiate an application for transfer pursuant to the interstate compact for adult offender supervision. That’s where they don’t have a choice to do that. They can’t force the child to Thank you. Sure. But they but they can’t defy the judge, or at least attempting to facilitate the desire of the court. If you tell the courts that they shall impose this, they have the choice of, of not following the law. And we don’t want judges to ignore the law. We want people that enforced the laws, as far as I’ve heard this all my life. So therefore, they’re going to enforce the law, and they’re going to do the shell.

Andy 30:53
So it’s a difference of if you want to you can versus you will do this.

Larry 31:00
That’s all the difference in the world and like, say, the fiscal ramifications. This is the type of bill that I would do my best to get assigned to one of our fiscal committees, which houses the house appropriation of finance committee in the Senate, it’s the Senate Finance Committee, I would try to get an assigned to one of those committees because it has, there’s no way you can begin to calculate this accurately. But you could throw out some wild guesses with with with some data. And and they do keep data on how many people are convicted in Georgia, I think they do have an Administrative Office of the Courts. And you could you could put together some something here. But otherwise, they’re just, they’re just passing this with no idea what it’s gonna cost in the long term. And I’ve even I’ve even seen lawmakers that’ll have to worry about that. I won’t be here then. Yeah, when this starts. There was a there was a lady lawmaker in Arkansas that passed a similar bill, where they were gonna have to be fitted for GPS, and it was not retroactive. So she said by the time anybody gets out of prison, that has to be fitted for GPS, and the cost. We have to deal with this. I won’t be here. Yeah, that’d be something they could deal with down the

Andy 32:04
road. That’s should shouldn’t politicians be concerned with, quote, unquote, their legacy? And what should show they’re leaving for their successors?

Larry 32:18
Well, of course they should, but that, should the population be concerned about this? They’re not if you ask the average, average person on the street? Does I think the sex offenders should spend longer time in prison and should be a GPS monitor? 99.8 75% would say yes,

Andy 32:36
of course, of course. All right.

Larry 32:41
Yeah, I was gonna make the point about the vote Tally. Now. I am not being Parson here. We are simply reporting what happened. And with information, goals power, this legislation passed with no Republican opposition. In the House of Representative Georgia, there were 59 brave democrats who voted no, you can draw your own conclusions. But they have now stuck their neck up to be vilified in the next election cycle for not wanting to monitor people who do ugly things. So will you say that there’s no brave politicians? I’ve got a list here that we’ve put up on the screen of 59 people who were brave members of the Democrat Party in the state of Georgia.

Andy 33:34
Let me let me try and soften this blow, I guess it is not that you give a poop about left or right. It is that one party continues to vote against criminal justice reform issues in general. And here is the documentation behind that showing that 59 democrats voted for something criminal justice, specifically PFR related, and there were 11 democrats that voted against it as well. But there was not a single republican that voted to drop this bill.

Larry 34:08
That is correct. And if that’s partisan, then we need to buy a business. You cannot adjust your plans going forward. If you don’t take a look at what’s happening. We put the vote to love from New Mexico on that hijacked bill just last episode or a couple episodes back. And we’re doing this to help you understand if you are for the reforms, you say your are four, you might need to rethink some of your vote choices because the people that you’re voting for are not in favor of what you say. You want to have happen.

Unknown Speaker 34:45
Gotcha.

Andy 34:47
You put in here to cover the narcis Abacus amicus brief and I think I just need to let you take it from there because I’d really I don’t I know it’s a it’s a friend of mine, so to speak. And please drive the bus on what we’re going to do. We’re

Larry 35:05
not going to spend a lot of time on it, because we’ve got so much out there on the Golden arsal website and read the brief and you can read the synopsis of the brief. And so what, what what we’re what we’ve found so troubling as that, that the burden shifting has become so common and American law, that it’s just mind boggling. And people think, well, it’s only has to do with our offenses. No, that’s not true. It doesn’t only have to do with our type of offenses, and the state of Florida drug possession as a strict liability offense. But what we what we briefed in this request, there’s a petition with the Supreme Court asking them to take a look at this long running case. And very few organizations spend resources asking the court to consider a case for for granting certiorari. We did that because we feel so strongly that this that this is an injustice, not only to to Steven May, but hundreds and possibly 1000s in Arizona, that have been convicted, because they can’t bear the burden that’s on them. In this case. He touched children. And I think he worked at a pool as a lifeguard or something. He worked in a recreation center, but he touched children. And the touching was in public, where adults and everybody was supposedly seeing it. But under the Arizona statute as it existed at that time, the presumption was that you would that the touching was for a sexually motivated purpose. And this, the prosecution did not have to prove that mens rea or that state of mind that there was a there was a criminal intent for the touching. You were allowed to prove with what’s called an affirmative defense to establish an affirmative defense that you’re touching wasn’t sexually motivated. That they’ve since made the statute even worse. they they they actually repeal the affirmative defense. So now it’s basically a strict liability offense. If you touch you’re screwed, but Arizona, out there, they’re not. They’re not as unique as as they think they are. They’re people who thinks that doesn’t happen in other states. It does happen in other states. The consequences in Arizona are horrendous. He’s got a 75 year prison sentence. So they potentially are destined not not

Andy 37:35
seven and a half years 75. And he he’s probably in his 40s as it is.

Larry 37:42
Yes. And they they stacked the they had multiple victims, and for some reason the attorney didn’t seek the they be severed, or if they if he did seek it, it wasn’t granted. But our big issue as he didn’t challenge the constitutionality of the statute. So is that ineffective assistance of counsel, and he didn’t challenge the constitutionality of the statute because he said he thought it was a bad statute. In his in his testimony at ABS court. He said he thought it was a bad statute, but he couldn’t find it. Anybody had successfully challenged it. And and I that’s that’s the craziest thing I’ve ever heard of. If If you find someone has has bad case law, there was no case law at the time he said that that Rob was able to discern, and he should have raised the issue of constitutionality, but he didn’t. So now they’re arguing that it’s waived. And I insisted in the normal brief that they put in the case of the class, which is a US Supreme Court decision from from a couple years ago, where the Supreme Court adopted my philosophy that if I did have a constitution, if a statute is unconstitutionally, if it’s not constitutional, the very essence of the conviction can’t stand because there was not subject matter jurisdiction and class establish that, that you can, you can challenge the constitutionality of a statute after pleading guilty. And I argued for years with attorneys telling me that you can’t plead guilty and challenge the Constitution of a statute and I said, Oh, yes, you can, because of a statute is facially unconstitutional. the very essence of you being detained is is not valid. There was no subject matter jurisdiction, but you cannot, you cannot volunteer and relinquish subject matter jurisdiction when it’s not there. So in a federal case, out of DC, I believe it was the US Supreme Court said that, that you actually can plead guilty, and you could challenge the constitutionality. And so with with our brief writer, I had to have that discussion. But I said, of course, even though it’s a federal case, it’s the same constitution. If you can be found guilty by a plea, and the constitutional challenge is not foreclosed. Then it stands to reason that if you get convicted by a jury, and your lawyer doesn’t raise it, if the constitution if the statute Some constitutional you’d be able to do the same thing. So we put that in there and I feel good about that big other I can’t tell it’s gonna work. I mean, they’ve got to get four justices to agree that they want to hear this case, but it was that important. And, and I would just like to put a quote. So in a news release, it’s going to go out that came from North Hills executive director because it’s so powerful. It’s a quote, it is nearly impossible to imagine anything more unAmerican than to be charged with a crime as serious as child molestation, it’d be assumed that you touch someone for a sexual reason, said Britta Jones dorsals, Executive Director, continuing, we’re hoping the court will recognize what’s at stake. In this case, the presumption of innocence is under attack. And not just for people facing sex charges, this burden shifting phenomena is sweeping into other criminal offenses as well, every American should be alarmed and concerned, Jones concluded. That’s powerful.

Andy 40:54
Definitely this. I want to I want to just take a second to circle back that says, Can you imagine with a crime of serious child molestation, and it be assumed that you touch someone for a sexual reason, you could come up with a bajillion different scenarios where you touched a kid. And perhaps you were about to deliver CPR. And all of a sudden, now you’re just immediately assumed to be trying to touch their their chest area, and do CPR. But now it’s sexual in nature. that’s a that’s a very disturbing scenario. And then you and you have no ability to defend yourself against it, you Well, I’m sorry, you do have the ability, you have to prove that it wasn’t, which is really hard to do if proving a negative. In that case, instead of them having to prove that you were doing something with sexual intent, will say, and that’s why I went when

Larry 41:45
I’m at the legislature, this is so important when we testify, because they say a prosecutor would never do that. And I said, well, prosecutors do do things all the time that you would think they would never do. If you had just simply put in the statute, what should be in there, that the touching is sexually motivated. This man would not have been in prison for years, nor what dozens or hundreds of others I don’t even know how many are serving time in Arizona right now. And I don’t know how many people in Florida serving under the strict liability drug statute. I don’t know any of that. But we’ve got everything turned backwards. And we’re getting more so because we keep falling into the victim advocacy crap. And they want convictions for everything at everyone. And and the more you weaken the due process, the more convictions you shall have.

Andy 42:36
And this is going to the Supreme Court of the United States. This isn’t just trying to go to the Arizona Supreme Court. This is trying to go all the way to the big dogs. That is correct. This

Larry 42:45
is a cert petition to the big court. Cool.

Andy 42:50
Just, nevermind. I want to ask that question. Let’s move on to this. I don’t think okay, this was what we just covered. And then we’ll move on. I guess we’re at the grand finale here the section on the would you want to talk about Cuomo first and then do the Wyoming thing.

Larry 43:08
They tied they tie together? And I’m really troubled by this that no one no one is, is no one is more outraged at sexual improprieties is happening or happening. But, again, as an advocate for criminal justice, I do not even begin to understand how they could be Ed Bourne, who would say that, um, your stack of accusations is enough to destroy a person, and they should be presumed guilty. This troubles me greatly. We’ve got people who want to remain anonymous, in the seven that I think I’ve heard of, and we’ve got stuff that’s very innocuous, in my opinion, that really troubled me. And the fact of the matter is, there’s been no due process. And this is an example of what we just talked about immediately prior. If there is no presumption, as much as politically I’m not aligned with a lot of of Cuomo. And I think he is a little bit on the disingenuous side politically. He is entitled to everything that every one of you want, which is the presumption that he’s done, nothing wrong. And he is entitled to a process to establish what he might have done wrong. Or he can participate and rebut and confront those who say he’s done wrong. And that is the American way. He’s entitled to it. No less than Derek Sheldon is in Minnesota, in Minneapolis, or anyone else. If you don’t believe in that, that I don’t know what constitution you do believe.

Andy 44:51
I can only speak anecdotally that I quote unquote, heard stories about where the Eighth Amendment comes from things like the Confrontation Clause. Have people way back in the day back when you were in your youth of how the how the Eighth Amendment comes to be of people being persecuted and prosecuted in what would have been England in the United Kingdom back then that without evidence without your ability to defend yourself, and that’s as far as I understand it, that’s that’s where the Eighth Amendment comes from. And I think you’re you’re describing something that is moving in that direction, where just the accusations mean, you’re guilty, and you have no, no Avenue, no vehicle as a way to defend yourself and prove your innocence and you’re destroyed just by the accusation.

Larry 45:38
Well, they shouldn’t even be having to prove his innocence. That’s what we just talked about in the main case. Sure, these these accusers have the burden of proving to some level. Now, since these are not criminal charges yet, and they probably won’t become criminal charges. The the form and the standard of proof may be less than than beyond a reasonable doubt, which is what it takes to put you in the caged enclosure. But he nonetheless is entitled to some process by which people come forward. And Scalia, maybe you can cue up the clip, clip where he says that you shall come and say, these accusations publicly, and the person has an opportunity to cross examine you. And he deserves nothing less than the subdue process. And to the credit of the previous federal administration of Donald Trump, they went in the college campuses, and they tried to put some semblance of due process back into these accusations on campus. And I’m afraid that that that’ll probably go out the window with the with administration, we have now.

Andy 46:52
Do me a favor, if you would, I heard on a podcast that this may have been the result of there, there are some mishandling of the COVID situation in New York that he is being blamed for that he was politically weakened. And that opened the door for these allegations to then gain traction instead of him being so popular and untouchable, I guess, that that’s how these come about and gain any traction.

Larry 47:21
Absolutely. He really has, he has suffered with a damage of the, of the reporting withholding information and masking the numbers. And and, and just the fact of the matter is, if you look at politics of New York State in New York State, they, the people, they’re immensely popular, they fade. I mean, look at look at college. I mean, he was a three time mayor of New York, and he went down to flaming defeats, I think as a flaming defeat in his fourth attempt, and, and so it’s in the course of doing your work. You alienate people when you’ve had a long 10 year old, and he has, I think he’s been in office, this is his third term. And he’s had a chance to alienate a lot of people. Because you do that, and people that work for you. I was having discussion earlier today with a friend. You can have people working for you that that unbeknownst you, they are politically your enemy. But they enjoy having access to the governor. And they, they love working for the governor. And when you look at the application, and you’re looking at it just on merit alone, and you don’t, you don’t do enough diligence to figure out what that person’s politics are, you may end up hiring someone who actually is out to get you. And if you have an ego, like most politicians tend to have. there’s a there’s a certain amount of ego to thinking that you can be elected to Governor or president. If you have that ego, sometimes you’re oblivious to the reality that someone’s out to get you. And you don’t think they’ll do it to you. And so he could have had hard people who were politically not aligned with him and they’re out to get it for political reasons. Yeah, I can’t say but that’s what investigation. That’s why he should have an investigation and it should be a fair investigation. And if our folks don’t agree with that, then I don’t know where they’re coming from. Okay,

Andy 49:15
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 at your treatment class about the podcast. We want to send out a big heartfelt support for those on the registry. Keep fighting with Aren’t you we can’t succeed, you make it possible? Well, then let’s move over to the

Unknown Speaker 50:07
though. I’m Ryan

Andy 50:08
Harrison versus Wyoming. And you people, but this case of Jeffrey Harrison versus the state of Wyoming in for today. What does this case all about? What does it have to do with anyone particularly pfrs? Everyone knows there are no people, and why only there’s only probably like buffalo or something?

Larry 50:27
Well, actually, there are few people, but the estimated population is 578,000.

Andy 50:33
And growing, we do one in chat. So there was one.

Larry 50:38
So, and this case is from Sweetwater County, which is the fourth largest county in Wyoming and their population is around 42,000. So I’d say that that’s there are some people in Wyoming Yes.

Andy 50:52
10%, not quite 10% of the population lives in that in that county, and appreciate the the demographic statistics, can we focus on the case for a minute?

Larry 51:01
Well, we sure can’t. So this this case is challenged by a guy named Jeffrey Earl Harrison. And he began registering when he learned he was obligated to do so by change of the statute, which occurred about 13 years after his conviction. And the change in the law required that he register for 25 years. And his theory is that the 25 years have passed since his conviction. So he petitioned the court pursuant to the removal process, to be relieved of the duty to register. And surprisingly, the trial court granted the petition and then the Wyoming division of Central investigation, DCI they intervened and they moved from for relief from a judgment and the district District Court then reverse itself and held it Mr. Harrison was was was actually required to register. And so Mr. Harrison is one who took the case up on appeal.

Andy 52:05
I’m yeah, even in the way that that is worded. I’m confused. You did. You said he didn’t have to register when he was convicted? Why did that change? It’s the way that the way that that’s described is that he was eligible to petition for relief from the duty to register. Oh, oh, so since he didn’t register for all of those years, since he didn’t register for 25 years, he was not allowed to get off. Okay. So but you said he didn’t have to register when he was convicted? Why did that change?

Larry 52:36
Well, Wyoming adopted, they were the early batch of states that adopted the federal guidelines that are the Adam Walsh Act. So he was convicted of for three sexual assault in 94, under an old Wyoming statute that’s now been appealed, and that was six dash two dash 305. And it’s now been codified as third degree sexual assault. And he was not required to register under the Wyoming sex offender registration act at the time of the conviction because the victim was older than 16. But in 2007, the legislature amended the sex offender registration act to require person convicted of third degree sexual assault to register regardless of the age of the victim. And under current law, the duty to register begins on the date of sentencing and continuous for the duration of the offenders life how ever an offender may be eligible to petition for relief. After registering for a particular number of years. I don’t this offense, it was 25 years he was eligible to petition for. So he filed a petition asserting that he was eligible to be released from the duty register, because it’s been 25 years since he got convicted.

Andy 53:44
I think I don’t know if this this comes up in the questions that we have, because it’s a civil regulatory scheme. They can just do what they want to do, I think

Larry 53:54
correct.

Andy 53:56
Okay. And I want to make sure that I understand the rest of what’s going on with the case, though. So in 2019, Mr. has some petition petition the district court to be relieved of his duty to register and the district court granted the position petition. So he should have been removed from the requirement to register, and then the DCI move to intervene and the DCI filed a motion for relief. So they filed to not have to relieve him of the duty to register. Did I did I word that right? All right. God camera back to frickin games of all fellow where we’re using negative negatives to I hate I hate when you ask a question in the negative and you have to say yes, I agree with your negative statement. I really dislike that. The DCIS position was that because the statute requires registration for 25 years, and dude had only registered for 10. He did not qualify for relief. So since he didn’t register for 25, he had only registered for 10. He still owes them like 15 years, I guess. So what did the statute require?

Larry 54:58
25 years His theory was that he should receive credit for the time he wasn’t registered with the law didn’t require registration for that particular offense.

Andy 55:08
What is wrong with that theory? If he was not required to register at the time of his conviction, why should he have to suffer now, he didn’t seek to avoid registration, or did he?

Larry 55:17
He did not. He didn’t hear it was a requirement to register. So this was an expansion of what was it was a recodified the statute to make it a more serious offense. And I’m sure the victims had something to do with that. And then they, they, they, they made that a third degree of more serious offense, and then they made it subject to SORNA. So that was an unfortunate thing that happened well, while being modified its laws to become in compliance with AWS. But what sad was that the AWS actually permits the jurisdiction to provide credit for the time that his lapse has elapsed since the conviction. And they designed that clause to address reach the reach back provision of AWS, which requires registration for those who reenter the justice system as a result of a new conviction. So if you go out and commit a new offense, and you have an old sexual offense, and you’ve never had to register, the one of the compliance components of AWS is that you will recapture that person. And so it’s not clear that that’s actually what happened. This case, we don’t know if he picked up a new conviction, and received his notice to have the duty registered at time or if Wyoming created a team to go looking for those who previously did not have to register and found them that way. We’re not we’re not clear on that.

Andy 56:32
Could you go back to the term you said recapture that person? Could you elaborate on that a tad,

Larry 56:38
what you could have under the NWA. It applies retroactively, but they realize a lot of people who have offenses had exited the justice system. And therefore, they would not be subject to registration. And there would be all this problem with trying to figure out who they are notified them. So So upon re entry to the justice system, if you come into an arrest, if you get arrested, and you get convicted of a felony, let’s start without any criminal offense, but then they modified it to be a felony level offense. If you have a subsequent conviction for a felony level offense, then that is a reentry into the system. So then you’re notified of the duty and register, they are permitted to give you credit for the time that has elapsed. So for example, at a tier one, if it if it happened more than 15 years ago, you would have already run the type on a tier two. Since it’s a 25 year obligation, if 24 years had passed, all they could do is tell you to register for a year. But the problem is your state has to adopt that into their statutory scheme. And since we weren’t there at the table, when Wyoming was discussing this, the Wyoming law enforcement apparatus did not volunteer that information, even if they knew about it, and I can’t say if they knew about it, cuz danabol jacked is somewhat complicated. That’s why it’s taken all these years, and there hasn’t been more substantial compliance, it’s exceedingly complicated, but I can assure you the law enforcement apparatus, even if they knew about it, they would not be the they would not be touting the the virtues of not bringing these old people back. So so if you had a tier three, and you re enter, then then you’re you’re stuck, because there’s no discharge. I mean, they give you all to credit to want to, but you’re still alive. And a tier three is a lifetime obligation. But what they could have in Wyoming given him credit for that time, but they didn’t do that.

Andy 58:31
Okay, um, and does this decision serve as a teachable moment for our people? What do you want to glean? What do you want to pass down? What wisdom Do you want to bestow upon our people? Is this this this decision a textual jurist can be proud of?

Larry 58:49
It is indeed, this is actually a teachable moment. And this is a very textual interpretation, because the court noted that the goal of statutory interpretation is to, quote give effect to the intended legislature, primarily on the plain and ordinary meaning of the words used in the statute, and of quote, and that a basic tenet of statutory construction is that omission of words from a statute is considered to be an intentional act by the legislature. And the court will not read words into a statute when the legislature has not chosen to include the end of quote, therefore, since we weren’t at the table, asking for that inclusion of that, in the 2007, adoption of AWS, Wyoming, the legislature did not adopt that. And most of the people who listened to us who claimed to be supporting textureless judges who don’t legislative don’t legislate from the bench. This would be a moment to be proud of. They did a very textual interpretation and they did not do any legislating from the bench.

Andy 59:54
You said that it’s a provision of the A wha so isn’t there supremacy clause in the US constitution doesn’t federal law supersedes state law.

Larry 1:00:04
Not in the case of AWS because there is no federal registry, the date of ua, they who it was merely a set of recommendations to the States, but it’s undisputed that Mr. Harrison was not required to register from 1994, the date of his conviction until 2007, when the legislature expanded the class of sexual offenders to whom the act applied. Mr. Hansen even conceded that the legislature did not specifically address such periods in the statute. And the statute does not say 25 years of registration shall include periods of which the offender was not required to register by law. And the court noted that it cannot read words into a statute to find that it does. The court stated, if we concluded Mr. Hansen, cease to have a duty to register 25 years after his conviction, we would read words registered for at least out of the statute, it says for at least 25 years, and therefore they chose not to read out what was in the black letter law as a textualist. You should be very proud of this.

Andy 1:01:05
But he didn’t register for 25 years, he only registered I think you said 10. So he did at the time, his obligation, and they then changed it, and they, you know, a bait and switch, not a bait and switch, but they switched it after he had finished that duty that 10 year, but because it’s a civil regulatory scheme, they can capture all of us from our crimes from 1950. And way back and just go well, sorry, you have to do it now. And that’s, that’s okay. Because it’s a not punishment. It’s a civil regulatory scheme.

Larry 1:01:36
Well, no, that’s not true. He did not register. There was no obligation when he was convicted.

Andy 1:01:41
Okay, okay. So he’s like a whole bunch of other folks that have 1990s and 80s convictions, there was nothing that required them to read. Okay, I thought he had registered for some period of time,

Larry 1:01:49
he has registered 10 years since he since he learned the duty he started registering in 2009. After they change the law in 2007. We’re not clear how they found him. We’re not clear if they stop or squat out looking for him. Or if he reentered the justice system. We don’t know that from what was the decision. But But what we do know is that the text of the law says you shall register for at least 25 years. And the court chose not to read that out of the statute, because it’s in there. So the if you don’t like the statute, you need to get it changed, because the court is not going to legislate from the bench on this particular issue.

Andy 1:02:26
Not that court, we do have courts to do it. Um, but what about if they chosen to invent that requirement? Wouldn’t that be legislating from the from the bench?

Larry 1:02:36
It actually would. And that’s what I’m saying that since I think our audience needs more conservative, they should be really, really pleased about this decision, because this falls in alignment with what they say therefore.

Andy 1:02:49
She stated, I know I’ve heard you say a whole bunch of times that it’s important that the constitutional challenges be brought using the correct vehicle we like, again, back to our first really the beginning of a relationship was figuring out the right vehicle in Georgia. And God, I can’t remember mandamus, I think was that’s the word that I’m remembering. Yeah. Okay, is that the whole thing is just a mandamus, or something closer rid of vandal? That’s what it was a rite of mandamus. And I can hear it ringing in my ears that joy said the preferred vehicles petition for declaratory declaratory judgment. Is that what happened here? And why are you so fixated on the vehicle? And I’m thinking cars and motorcycles playing trains and automobiles.

Larry 1:03:31
So yes, the declaratory judgment and No, he didn’t file declaratory judgment action. And he did not use the correct vehicle. In my opinion. This case reminds me of a case from Michigan where the person filed the removal petition. And their offense wasn’t eligible for to be granted that really, if they were excluded by law, Mr. Harrison argued, in his removal petition that the duty to register for 25 years as applied to him, any Hey, invoke the Ex Post Facto Clause. But the only problem is that when you file a petition for removal, that’s a process that assumes that you’re eligible for removal. So so you’re you’re you’re checking off boxes in that, in that proceeding, to see that you’ve done the things that you need to do when you file a declaratory judgment. And we have a person from New York who really struggles with this. When you file a petition for declaratory judgment, you get to open up all the arguments you want to make against the constitutionality of the statute. If the statute applies to you, at all the things that you can’t do, he was restricted and hit what he did, to arguing that he met the criteria for removal. He was not that was not the right vehicle, in my opinion, but the lawyer didn’t ask me because he didn’t know about me.

Unknown Speaker 1:04:46
I’m

Andy 1:04:48
trying to I just had a question in my head and maybe it’ll come back you’re

Larry 1:04:51
you’re you’re still confused, aren’t you?

Andy 1:04:54
But no, I am. But I had I had another question but I am definitely still ex post facto. That part bothers me because expo’s factor would apply to it being something of a criminal charge, not a civil regulatory scheme.

Larry 1:05:08
Repeat that I’m not, I’m confused now.

Andy 1:05:13
Good, that makes us about the same. If it if it were punishment, disabilities and restraints, blah, blah, blah, then it would be punishment. And then that would apply to ex post facto, but because it’s so regulatory, they can just keep making this stuff worse and worser and worser and worser. Just because it’s not criminal. It’s not it’s not punishment. This is just part of the civil regulatory scheme, like a driver’s license.

Larry 1:05:36
Yeah, let’s say he didn’t get to make that argument and a petition for removal. Because the scope of that process, when we done these discussions about an extradition hearing versus a retaking hearing, the scope is limited. The same thing when you file a petition for removal. That’s not a constitutional vehicle to make a challenge. That was to see if you met the boxes that could be checked off for removal. And okay, and he tried, he tried to intertwine a constitutional challenge in here, but he but again, if he were writing the right vehicle, he would have been able possibly to be more successful than

Andy 1:06:16
Why couldn’t the appellate court review? Why couldn’t the appellate review sort those issues out?

Larry 1:06:22
Because appellate courts do not find facts? it’s the job of the trial court, and there was no evidentiary record developed below. Because the petition for removal process does not lend itself to development of such record, they’re developing the record to deal with you meet the criteria for removal. So the court noted that it had held and not tolerate the court, the Supreme Court of Wyoming Supreme Court noted that it had held that the Wyoming Sora is not ex post facto punishment. And Mr. Harrison does not even challenge that holding with distinguishing facts or cogent legal arguments. And that’s what I’ve been trying to teach for nearly three years now. When Mr. Harrison filed using the wrong legal process, he limited the scope of the legal examination of whether he was eligible for removal. There was no evidence in the record that would prove the punitive nature of Wyoming’s red registry. And that’s the problem, folks, you’ve got to do things using the correct legal process that opens the door to the arguments you’re wanting to make.

Andy 1:07:20
And I know over and over, and I’ve used this in conversations that I’ve had with people that said, when the legislature gets that bill signed, and then the governor signs it, it is presumed to be constitutional until said otherwise. And what did the court say here?

Larry 1:07:35
They indeed said the same forget our quote, they said we presumed statutes are constitutional. And we resolve any doubt in favor of constitutionality. The Ex Post Facto prohibition only applies to laws that impose penalties we held in Camp camerer, that the purpose of of Sora is to not punish but to facilitate law enforcement or protection of children, and therefore it does not implicate excellents Facto Clause. And there again, if you had filed a petition for declaratory judgment, you could have raised in that petition. The issue is about how that the registry has evolved. And you could have put on testimony of experts. If you had the funding, you could have made those arguments below. And you could have the court reviewing those facts, but you cannot have the appellate court find those facts, because that’s not what they do.

Andy 1:08:32
I see all these flaws that we keep talking about. And this this seems to actually like highlight so many of them that we have talked about fact finding, we could talk about Smith versus doe in Alaska, that the the higher end courts don’t go look at facts of what was missed. They just are presented with their facts and make their decisions based on what was already there. They don’t go expand the scope.

Larry 1:08:56
That is correct. They’re reviewing. They’re reviewing the facts that are established below when they’re applying the law to those facts. The law bait the statute, they’re interpreting the statutes, they’re interpreting the Constitution, and they’re interpreting the body of case law. And that’s what Justice Scalia referred to when he was talking about about why you don’t keep related really to getting the same issue over and over again. That was the theory of story decisis. But But he this if there ever is anything that people that are in chat should look at the case look at all the attorneys are on the state of Wyoming side and this look at the water target, which looks appears to be a solo practitioner, because of the way it’s listed on there. And you can see the array of resources that they aligned against this challenger. And when we say that we want to reduce funding for the law enforcement apparatus. Curious yet another example of how they could put that list of attorneys against Mr. Harrison. The reason why they could do that is because you generous folks of Wyoming, give the age G’s office in the law enforcement apparatus, all the money that they want.

Andy 1:10:05
And you’re referring to at the top of the decision, I believe that that it’s representing appellant is one attorney and then representing appellee. There’s I don’t know, three or four or five listed.

Larry 1:10:18
Yeah, that’s what I’m telling you look at look at look at the disproportionate nature of Jeff Jepsen, Law Office updates and Jepson. So it tells me that he’s probably not in a firm, he’s probably a solo practitioner, right, unless he has a vast amount of attorneys and have a three day back to him. But representing the state would be look at the list. It goes on and on. And first of all, it’s

Andy 1:10:41
the Attorney General, Deputy Attorney General, the senior Assistant Attorney General, and then an assistant attorney general. Okay, okay.

Larry 1:10:51
So so as we, as I keep pointing us out, and the reason why I keep hammering it, is because no one has ever seriously said defund the police, what we say is that it’s time to reallocate some of the funding. If the Wyoming Agee’s office had less or funding, they might not have been able to expend the energy on fighting this case.

Andy 1:11:15
I’m dubious about that, Larry, that they would then go not, they would still bring this particular case. And they would go find something else to ignore this well. Actually, what would happen?

Larry 1:11:27
I said might I mean eventually, or tell resources enough? They their choices are forced, at some point?

Andy 1:11:34
Sure. Because this person didn’t show up on the radar by committing another crime. And I know you said that we don’t know what he did. But can we assume he didn’t commit a crime?

Larry 1:11:45
You would think it would have been mentioned in the lead up to this survey, I think. I think it’s more likely that he went down and checked in himself, or he was reported and snitched out after the law changed. Someone knew that he had the conviction. I think that’s probably more likely what happened, you know, someone was doing a good public service that when the law changed, and he may have, you know, we’ve got people that are just determined to register. I mean, we had a case in Alabama, or the guy went in multiple times, we had that North Carolina. I mean, there’s just thinking of who just determined the register, you know, even when they tell him Nope, we don’t want you to register. They go back again. And again, and again.

Andy 1:12:23
Yeah, I’m thinking of the guy in North Carolina, who was told no once and then no, a second time. And then maybe that position changed, and somebody started looking back through, hey, we had contact with this person, they should be registered and things go south from there. Yep.

Unknown Speaker 1:12:36
So Ah,

Andy 1:12:39
okay. And then are we done with this? Have you have you exhausted all of your conversations about this?

Larry 1:12:45
I think we have done it. And we’ve covered the entire agenda for tonight.

Andy 1:12:49
We did and we are pretty much right at the stoppage point. I did not check to see if there any new patrons, but I don’t see remember seeing any emails. But it would be a good time to remind people that you should become patrons, you can sign up and listen to the live stream and and converse with all the people in chat that we have. And there’s a very healthy conversation going on over there. Why do you think people should come patrons there?

Larry 1:13:10
I can’t think of any reason. Ah,

Andy 1:13:14
because it lines your pockets and makes you all fat, dumb and happy?

Larry 1:13:17
Well, it does. It does provide some motivational factor to come in here on Saturday and prepare for hopefully, an intelligent conversation.

Andy 1:13:28
It shows support for the show that you guys appreciate the content and trying to move the needle and disperse this information out to all of you, you find people and certainly do appreciate patrons, but there are some perks here there. And listening to the live stream is one of those such perks. Otherwise, if you would like to check out all the show notes and links to all the places that you can find the podcast, you can get that over at registry matters.co. And then you can leave voicemail, which is Larry’s favorite thing. 747-227-4477 you can send an email over at registry matters cast@gmail.com or crackpot at registry matters. Let’s do that one doesn’t work. We just use it for fun. And then of course, I was just talking about it. patreon.com slash registry matters to show your support even for as little as $1 a month. It would be phenomenal. You can follow us over on Twitter. You can check up on us on the YouTube page if you want to watch me on the crazy video and I make funny pictures of Larry every week. Anything you want before we go

Larry 1:14:29
I think we’ve covered it and I’m I’m enjoying all this discord chat. There’s hundreds of comments in here tonight.

Andy 1:14:36
There are definitely hundreds of comments. There’s a very lively chat and just as a final note, yes, you can find us on Twitter. Also, I did make a Facebook page too, but I don’t really promote that too much. And all of that stuff is registry matters. All of those places. Larry, I always appreciate it so very much and I hope you have an amazing rest of the weekend. And with that I bid you adieu

Larry 1:14:58
died Andy and Thanks for having me.

Andy 1:15:02
Of course and I’ll see if I can’t replace you but otherwise I’ll see you next week.

Unknown Speaker 1:15:08
You’ve been listening to F YP

Transcript RM168: Court Says Community Safety Concerns Can’t Block Release

Posted on March 8, 2021 by andy

Larry 00:27
That’s really sad.

Andy 00:30
But you’re the best we got end up but legit Larry you are the best we got it’s pretty damn good. I would have to say I bet you if we unmuted Brenda’s microphones, she’s not here at the moment. She would probably agree with us.

Larry 00:41
Well, she’s gonna be with us later. We’re going to bring her in just a tad bit on on that letter that, that we’ve discussed a similar letter previously. But yes, we’re going to have Oh, oh,

Andy 00:54
I did. Oh, she may have mentioned something that but you hadn’t said anything to me back about it before but okay. So I need ample time to remind her to come on over when when it is that time. First of all, hey, like and subscribe and share this on YouTube and all the podcast apps and all the other places. Tell us what’s going on tonight Larry.

Larry 01:16
Yeah, if you don’t hit that YouTube like button, we are going to disconnect you from our side.

Andy 01:23
Where did you get that from?

Larry 01:25
Oh, that was from Neil Bortz.

Andy 01:26
Neil Bortz He was entertaining.

Larry 01:31
Yes, he he got his start and talk radio in Atlanta, Georgia, for those who have never heard of him on a talk radio station called WRNG radio. And the host of a show program on WRNG radio abruptly died. That deal board showed up to see to see the station manager and he said I would like to take that Prime drive slot and the station manager said I don’t think so.

Andy 02:02
He ended up on a pretty high power station in Atlanta and coincidentally, towards the probably roughly the middle of my little vacation. He I just happened to be able to pick it up one day because it’s really hard to pick up stations particularly AM during the day. And I picked it up and it was his final day. He was like well, I’m off the air. Guys. Take care. Bye. Peace out.

Larry 02:23
Yes. He he actually went from WRNG to WSB. And then he they went into to what do they call it syndication when they when they distribute it. He had he had a couple 100 stations study thing like Rush. But he had a respectable sized network. But he was the one who, who told his unhappy listeners if you don’t like us, go to the radio, retrieve the numbers and let us know And we’ll disconnect you from this side.

Andy 02:55
And truth be told there if we really wanted to, to a certain degree, you could circumvent it, but I could cut you off from our end. I can block you. So I better watch yourself. So what do we have going on?

Larry 03:08
Well, we have two questions from the inside. These come from people who are serving time. And we have a comment from a listener from not a listener, but a transcript reader. And we have we have a plethora of clips tonight where I went clip crazy this week. So we got video. Some of them are current events. And some of them go back to the 1940s. I’m setting the table for bringing back Harry Truman in a future episode. But I didn’t want to I didn’t want to put the clip down tonight. But I’m letting people become familiar with Harry Truman, former President Harry Truman,

Andy 03:53
because people don’t know who that is.

Larry 03:57
There are a lot of people have never heard the name Harry Truman. (Andy: Interesting.) And then we’re going to be talking about a case out of the Pennsylvania. It’s an important case dealing with PFRs being held up on parole because of housing. And that’s going to be a great topic to discuss.

Andy 04:15
Excellent. Excellent. I guess then I will run off to question number one. All right, and I don’t have it up on the screen. But it says:

Listener Question
Dear Mr. Larry, why do you think the Federal Bureau of Prisons can do anything they want to an inmate? Our mailroom has denied my religious material. I’m going through the administrative process and ask why you wish to violate my first amendment rights and my religious right to a Bible study through any Minister through the mail. Now another issue back in October of 20. A federal judge ordered the US Treasury Department and the IRS to make federal stimulus payment to people in prison plus jail. I did mine on October 13, 2020 mounted out and for the $1200 stimulus check five months ago, and it’s still not here. Also, there was another $600 stimulus that was filed for and passed in December 2020. I put in for that in January 2021, as we were told, and some inmates got their 600 bucks before the $1200 and many are, are still in the post office in Texas. All I can do about that is wait and see if it hits my account. I believe the IRS is still blocking inmates from getting the stimulus tax. I don’t have anyone our way to look into this. I still have no money on my account and I know that my subscription is running out. I don’t know if you can do anything. And I would hope that you can and any help that you have, please and thank you.

That’s a kind of neat question. And there’s more money on the way isn’t there?

Larry 05:47
Yeah, I believe there will be. I don’t know that I’ve indicated that they can do anything they want to talk to prisoners or probationers. And I’d like to clear that up. They can’t do anything they want. They can do an awful lot of things to both prisoners and probationers because of the differential treatment that courts afford correctional facility managers. That doesn’t mean that you have no rights, but it is kind of like a kid in school. And I know I’m gonna get hate mail for making the comparison. But kids do not have the same rights as adults. When they’re in school, they’re minors. Well, when you’re serving prison time, you have a very diminished amount of rights. But you still do have some. Yeah, would you agree that you had a limited right to privacy?

Andy 06:44
Limited? I would say that it was extremely limited.

Larry 06:48
Would you agree that you had a limited right to access people of your choosing to acquaint yourself with while you’re in prison?

Andy 06:54
Absolutely. Especially on the outside, yes, you had to fill out all kinds of paperwork to say I’d like to add this person and then they, they they verified them.

Larry 07:02
Well, and see those things are done in the interest of, quote, institutional security. A judge with a black robe is not going to come in and second guess institutional security in most circumstances. So therefore, the prison administrators get a lot of deference, and they deserve a lot of deference, because running a prison is a very tough job. And I admit that freely. It’s like running a small city of people who don’t want to be there. Most people that are there would probably prefer another housing option. So you’ve got a lot of things and and a lot of moving parts of running a prison. If we went through all the things that are that are required to administer a prison. You don’t even think about them, because they just automatically happen. So it’s a tough job. They do get a lot of deference. But in terms of some rights, you do have the right I mean, the courts have been deferential on many things, but in terms of your right to worship, prisons have to make accommodations for those things. But he doesn’t have the rights that he would have if he were on the street as a non-convicted person. And I’m sorry, but that’s the reality of the situation. But in terms of the stimulus payments, this was the previous administration, that without it being expressed in Congress, by the will of Congress, that people not received those payments, they decided on their own. And that’s why it’s important when you elect an administration, they’re running the day to day affairs of government. And they decided to take that to suppress and to try to prevent prisoners from getting those payments. The courts have not been favorable to my knowledge in terms of because Congress has the final say so and they did not prohibit prisoners from having if you were otherwise qualified for those for those payments, you’re supposed to receive them. Now, unfortunately, here’s the sad thing about it is when you eventually get those payments, particularly in the state systems, not as much in the federal systems, but in the state systems. They have a way of taking your money from you, for unpaid things, sick call for example. You’ll have an accrued bill for sick call, you’ll have accrued bill for restitution. And in some state statutory schemes, they have an automatic withholding of a certain percentage of anything that’s put on your books, to meet your obligations of your conviction, you know, all those, all those that whole list of fees that they assess. When you look at your conviction when you do a plea, there’s a list in some states, it’s a very lengthy list of things and all those runs run hundreds and hundreds of dollars. And you’ll end up you’ll end up possibly losing a significant amount of money. But I believe you’ll eventually get the stimulus payment and if you’ll make sure I have this letter back in my file because I’m not seeing it, I’ll make sure that we extend his subscription until this is resolved because we don’t want to lose connection with the newsletter. That’s one of the lifelines that people look forward to their serving time is that someone’s out there at least doing something trying to change what they’re facing when they get out.

Andy 10:20
Oh, righty then what about the religious side of that part? I remember somebody while I was gone, who was Catholic and he was trying to get wine brought in to do communion, which I thought was hilarious. I just didn’t see that that was ever going to happen. And he would file grievances left and right. You have that first amendment right. And they have been and not necessarily with people that are in prison, I think the Supreme Court has been pretty much in favor of however you want to worship, you get to worship that way.

Larry 10:51
I know our state Supreme Court has been very, very accommodating to people and their religious beliefs, they get to do little smoking here as one of religious things here, in particular, the Native American population.

Andy 11:07
but i don’t i don’t like what I know it as is like, this is gonna I don’t know of any other word on how to say this. So just whatever peace pipe? Is that what you’re sort of referring to? I know that’s gonna come across terrible.

Larry 11:18
No, I don’t think that’s what they call it.,

Unknown Speaker 11:21
But yeah I don’t think it is either. But I’m gonna get hate mail.

Larry 11:27
Yeah, you’re, you have a way of doing that.

Andy 11:29
I know, clearly, because we have that coming up, I think, Well, next next. Wampum? Chat is giving me choices here. Wampum or sweat lodges?

Andy 11:45
I don’t know what this is. But anyway, okay. So not the one that I picked.

Larry 11:50
But but but if the if the prison can assert a legitimate security concern with what you’re proposing to do it, I don’t know of any such religion that builds bonfires. But I have a feeling, I have a feeling that the courts would probably say that you don’t get to do that, because that would be that would jeopardize institutional security. And the courts are very deferential to the need to keep a prison secure. Prisons are supposed to be secure places to the extent they can be. It’s hard to have workers or to work at a prison if they’re not secure. And people are being sentenced to confinement but not to the loss of their life or their lives. So it’s our duty to keep those institutions as safe as they can be.

Andy 12:36
And as another example, if I’m not mistaken, this happened after I left that the Muslim community filed grievances. And I don’t know if they went through actual legal challenges that they be allowed to grow beards. And Georgia has a deal where you have to shave and they give out razors and all that garbage. But then next, I know people have beards in Georgia prisons, and I’m pretty sure that was and they can’t just say you have to claim to be a Muslim to do it. You just have to let everybody do it.

Larry 12:59
So peyote, that’s what I’m looking for. Can be smoked by rolling it into a marijuana leaf or tobacco the powder is referred to as a I don’t even know how to read this stuff. But anyway, it that’s what I was trying to think of.

Andy 13:15
that’s fine. Okay. Question number two, then I think you said in pre pre show that this is a follow up to something we covered a handful of episodes back. It says:

Listener Question
To the Larryinator I’m writing in regards to a question that you addressed in Episode 165 of your podcast recorded on 213 21. Regarding the possibility of parole being brought back to the feds, I just wish to make a rebuttle. I do not need to reply. You stated about how the American public would be whipped into a frenzy about people not paying their debt to society if parole existed in the federal system. However, I would just like to point out that most every state prisoner has the possibility of parole despite their charges user receiving less time and being more severe than federal, i.e. sex offenders in particular, the state of Texas has parole for many, many years and the American public does not seem to be offended by that. Maybe this is just an American public’s ignorance, but I feel this should be addressed. Federal inmates have to do 85% of our time, with the additional punishment of supervised release versus state which is often 10 to 50% at most with parole. I would like to state that my current celly was charged with vehicular manslaughter in the state killing a man while drunk driving. He received a 10 year sentence and only did a few months due to parole after being sentenced, meanwhile, I asked an undercover cop for some photos, was charged with attempted production of child pornography and was sentenced to 22 years. 18 and a half I have to do if my good time remains intact. That no matter how you slice it is not justice. And I feel that the American public would would not be outraged if I only did a paltry 11 years in prison, for example 50%. I appreciate your reading. Thank you for answering my question in your podcast.

Interesting.

Larry 15:03
this has got a lot of stuff. We could actually do a podcast on this. But what what I intended to communicate was that the system we have now in the federal system, it’s been entrenched since 1984. So we’re coming up on 40 years. And we’ve talked about the prison industrial complex, and the prosecution industrial complex and the law enforcement industrial complex. The outcry back in ‘84, when this was done, and he may not even been alive in ‘84 when this happened, I have no idea. But we had, we had vastly different sentences in the federal judicial system. You had federal judges in Alabama, who would impose very lengthy sentences for the exact same crime that someone out in San Francisco would receive a probated sentence for and in those days, half of the Federal crimes ended up on probation. Now, I think it’s somewhere that in the area of 8 to 10% actually get a probated sentence, if you could remember, Martha Stewart went to prison for lying to a federal investigator. She was so dangerous by telling that lie that she went to prison. So we had we had the public outcry that pushed this through Congress. Undoing something that’s national policy is very difficult, especially when it’s been entrenched for 40 years. Just take a look at the first step act, and how timid that was and how controversial it was, and how it was even weakened, after having found achieved the bipartisan support of both parties. Then you had this Renegade bunch of Republicans in the Senate that thought it went too far. So I’m judging based on what I know about the system. Now he’s probably right, if you took a poll of the American people, and you actually talked about what we have people serving how much time we have. And if we were able to have that intellectually honest conversation, and we compared it to the various states, he’s probably correct, that people would be shocked. But the federal system doesn’t have the constraints of a budget, like the states do. The federal government doesn’t have to balance its budget. That’s not important to the American people anymore. We’re happy to put it on the charge cards. Most states must balance their budget. And Texas, in particular, they don’t have an income tax, if I’m recollecting correctly. And they believe in keeping low taxes, and they just got to where they couldn’t afford their prisons. And then the federal courts stepped in as a result of litigation, and they had to reduce their population. And they’ve got a fairly lenient parole system. But what when he says, all states, we don’t have parole in New Mexico. Now someone’s gonna write and tell me, I’m an idiot. Because we do have a period of time we call parole. But in order to get to that period of time, you must serve all of your sentence, less, you’re good time. In all violent offenses, we are mirrored exactly in the federal model, you get 50% for a serious violent offense, and then other offenses get 50%. And then that extinguishes your sentence, and then you go into a mandatory period of supervised release, but they label it parole, so they can put it on the parole board. So you don’t get out here until you serve, in many cases, 85% of your time. But I get his point. I agree with him, that if you could have this intellectual discussion with the American people, and if you could keep the grand standers out of it, who want to whip people into a frenzy with sound bites like they did with the first step act, you might could achieve that reform. But it’s going to be tough. It’s going to be very tough. And that’s what I was trying to communicate.

Andy 19:04
What about the disparity in the amount of time that people receive though for miscellaneous, different crimes?

Larry 19:11
Are you comparing this disparity between the state and the federal system because there’s no comparison.

Andy 19:16
No, I in this he’s talking about and I don’t know if so he’s talking about he got, I guess he got fed time for distribution, and then he’s talking about somebody that had vehicular manslaughter. And he went home after like, three years or whatever.

Larry 19:32
Well, well, obviously, the celly he’s talking about is in federal custody waiting for something else. But he’s talking about that celly got released on parole after doing a small fraction of the time for vehicular homicide. But that, I mean, that that has nothing to do with the federal system. Vehicular homicide would likely not even be a federal crime because you’d have to I mean, most of these crimes that people complain about are state crimes, there’s no federal jurisdiction. So I’m quite certain he’s talking about somebody who ultimately ended up in federal prison for something else.

Larry 20:06
Okay. And then…

Larry 20:09
alright, well, but he but he is but he, but he is making one point that that the that the crime of which of his conviction for the for the photos is that 22 years is so extreme that if you ask the average person that but see it’s all about how you ask the question, if you ask the person, should a prison sentence of 22 years be impose for possession of photos of minors? The average person would say no, but if you ask the question, should 22 years be imposed for exploitation of children? Now remember, all you did is change the term from exploitation, for pictures to exploitation, and from minors to children? And you would get a whole different reaction on that same question. 22 years would seem just about the right amount of time, if you said exploitation of children.

Andy 21:12
Sure. Yeah, term terms matter in this case a lot, don’t they?

Larry 21:16
Yep. And I would dare say that a lot of people who are serving these sentences right now these long sentences before they got into trouble and me included. If you had posed the question that way, I would have said, Well, of course people will exploit children should be punished with significant penalties. I would have said that.

Andy 21:33
wouldn’t you have? I believe you would have for sure. Yep. All right. Well, then I guess this is the hate mail for me, which I’m going to get in trouble for saying it’s hate mail to me, because the person said that he wasn’t sending and I was saying all this stuff. I have a tendency to exaggerate Larry. I don’t know if you’ve noticed this. Maybe.

Larry 21:54
No, I could not have ever thought of that.

Andy 21:58
It begins:

Listener Question
Dear, RMP Registry Matters podcast. Am I wrong? It’s happened before, but I don’t feel wrong. I feel the one wronged. It’s so frustrating. You know it, I know it. Now. I find myself on the wrong side of friendship. Maybe it was mutual. Perhaps it stemmed from my fears and insecurities. But I don’t like it and I’m left vulnerable to too much scrutiny or in worse. Instead, I want to help. I wish to be part of the solution. Not a hindrance. But how, how can I help? Registry Matters Episode 164, approximately 33 minutes and 57 seconds. The person who wrote this is going to get a copy of this transcript. That person was me. My efforts are page five. And Andy said that would be me some level of hate mail. I am the subject matter of scorn and the waste of valuable resources. Where did I go wrong? A year ago, I kept writing to NARSOL about what it is I can do asking what it is they are working on. But mostly I was begging for communication. For a year, I’ve wanted to help them. All they have to do is tell me what they need. And I want to help them. For a year, I have written, donated, read the Digest, sought our state’s affiliates, who never responded to any of my mail, reached out and asked over and over only to be told my potential limitations. Hate mail I never wanted it to be. yes, I spoke out of vexation, maybe spewed to an extent. And yes, I questioned their leadership. Because as I see it, communication is the foundation of leadership. I have so much to offer. And I’ve even tried to assist in picking up the slack for them. I deeply feel as if I can be very useful. But now I feel chagrin. Instead of you guys doing more important things, you’re chastising my petulance. So, for that. I’m sorry. Can I make it up by subscribing? Seriously, I’m glad you reached out to me. Is there something I could do for you? Much love Mr. Trent. Wow, is this where I’m supposed to be bringing up Brenda on?

Larry 24:01
Well, not yet. But yeah, she’s getting ready. So what I was gonna focus on was the, the writing to the States. And I’d like for like for the writer to understand and everybody to understand that we’ll be talking about the states, we’re talking about people who are working full time jobs. The funding is not there to have an organization that’s staffed with individuals who are sitting around, ready to respond via mail. In every state that has any level of organization, almost all of them work full time jobs. The executive director of NARSOL is also the equivalent head of the state that she lives in. And she works a full-time job. And she does the executive director for the state and the national organization and the states that they just don’t have the resources to respond to the mail. And as we said in the letters that we’ve sent to him, we’ve, we’ve heard this, these offers before, and it’s just hard to integrate people in. But we’re gonna bring on Brenda again a second time because she has written a very elaborate response, it will probably be published in a newsletter with some edits. But in terms of her idea is in terms of how to try to get people involved in in prison. So let’s see if we can bring Brenda on now.

Andy 25:27
I’ve been trying to reach her, we might have to vamp for a few minutes. Brenda, are you there? (Brenda: I’m here.) Oh, sweet. Okay. I kept trying to ask if you were ready. Welcome back. You are the Executive Director as Larry, just more or less introduced you, the Executive Director of NARSOL? And you’re also the executive director of your Maryland affiliate named FAIR, correct?

Brenda 25:49
Yeah. So so he’s, I was looking at Mr. Trent’s letter earlier and and tried to make another response. He brings up some really good point about, you know, wanting to help and wanting responses. Larry is absolutely right. Most of us, I think, I would say legitimately, that you’re not going to find too many other advocacy organizations around definitely not in this field, that send responses at all. And it’s not because we don’t love you, it’s not because we think you’re useless, we simply don’t have the time where we’re trying to deal with, you know, dealing with legislation, that kind of thing. And stopping and writing letters takes up what little time we have available, because we are in fact working or have family obligations, etc, etc. What I did respond to Mr. Trent about in particular, though, was, you know, he has all these ideas, and he wants to help, and we get this a lot, both inside and outside. And my response is, your ideas are great. What can you do? You personally, if you can come to us and say, I am ready to do these things, to make a project happen, I will provide you all the support I can possibly provide, I will, I won’t just stay an Attaboy, I’ll help advertise it, etc. But just coming to me with an idea, and say y’all ought to be doing such and such or so and so to fix the world, that doesn’t help me at all. We’ve already got a list a mile long things that we know we ought to be doing. And if we had $1, for every time somebody came to us and said, here’s this wonderful idea, we’d be filing so many lawsuits, oh my gosh, we’d be solving all kinds of problems. So but we need people to do things. So wherever you are, in prison, outside of prison, if you’ve got a great idea, tell me what you are going to do to make that idea happen. Because that’s what we need is people doing stuff. So I’ll get down off my stump speech.

Larry 28:13
So well, I, I had written in one of the letters that NARSOL sent I had a hand in writing it. And I tried to outline what we do in terms of our functions and how it would be very difficult for people in prison to do that. I mean, you don’t have access to the internet, largely, you don’t have access to the telephone to make phone calls to lawmakers. In all likelihood, you don’t have relationships. But now if he does have relationships with lawmakers, and I’m talking about, not knowing their name, that’s not a relationship, but actually having personal relationships, where his name is important, then that can be significant. But he needs to tell us what it is he can do within the confines of what where he finds himself. Generally speaking, they do not allow prisoners to leave their prisons and go to their capitals to lobby and to speak on behalf or in opposition to bills. So like, on the things that we’re currently doing at NARSOL, There’s, I don’t see how an inmate behind bars can pray, but fit in. But we would love to have, we would love to have family members. If he could rally the family members out there to be more involved. I mean, the bottom-line folks, all we need is we need a whole lot more money. And that money is not everything, but it certainly it’s a big part of it because you could hire people and you have access that you don’t have without money. We need lobbyists. We need boots. These people cost money. Yeah, lobbying is a profession. And it requires a lot of expertise and relationship building. And wining and dining people to build relationships takes time and money. So So I would like to hear more. But But yes, we’re probably going to turn that into a to an article for the newsletter so that everyone can see what we have said in the context of this communication, because there’s there has to be more that feel frustrated that they can’t do anything.

Andy 30:10
Brenda anything else?

Larry 30:13
Yeah, I I really, really appreciate you. Appreciate you coming on, I really appreciate the effort you put into the letter.

Brenda 30:20
Sure. And and I do think you’re one of the folks in in chat is mentioning, unlike the the writer of this letter, who feels like he’s got all kinds of things to offer, I also get a lot of people who say, I don’t know what to do, I just feel helpless. And yes, we kind of have that other extreme. Again, if you got the funds, funds are always good, and you will not be helpless and you will be contributing. If you don’t have funds, there can often be at least small things that you can do, you can get involved in contacting lawmakers when bills are being heard. There’s a number of you know, they seem little, but they add up. So just check in with us at NARSOL, and we’ll find a way to get you involved either at the National or at the state level.

Andy 31:12
I would like to chime in if that would be okay? (Larry: Sure.) When I when I first found NARSOL, I felt exactly as the person in chat feels who says my biggest issue is I feel so helpless in trying to help. I call it lurked, I hung out, I participated in the phone calls and got new email stuff. And I was like, what could I do? And I, I have a particular set of skills. And I offer those and got in touch with Brenda and others at the time to then figure out how I could offer whatever, but I started donating money but then offering my time and supporting and being a cheerleader on the sidelines. That I mean that that that means a lot to is participating when we when we have calls and 10 people show up versus 200 people like the 200 is a little bit more inspiring.

Larry 31:57
Absolutely. And you’ve been you’ve been there with us on a lot of the development of the of what used to be the NARSOL in action, and then we transitioned to doing this weekly podcast. And again, that’s your skill set that you’re contributing to help make this possible. We’re getting information out weekly, weekly now. And we we’ve tried to integrate it into what NARSOL does so that people can get… who would have ever thought of distributing the podcast into the prisons? You know, there’s there’s additional source, and it’s a very limited circulation list right now. But I do believe that that list is going to grow over time when people when people realize that we exist.

Andy 32:41
And then just sort of complete the thought the individuals asking about the state he’s in and Brenda is replying to him in chat as we are speaking says there are two groups in his state. He’s like there are and nothing against the individual. (Brenda: It can be hard to find, sorry.) Sure. But doing searching in this particular case around the NARSOL site, I think you would find them not necessarily saying that a Google search would get you there. I’m saying that digging around or even emailing or asking someone on the default list of communications@narsol.org, like that information would get distributed about?

Brenda 33:20
Yeah, the way to you can go on our site and just do contact us and ask. There is a list of our contacts, like a list of our affiliates. But there are often people in other states where we don’t list them online. Like if it’s just an individual or a small group. We don’t put their information up online for obvious reasons. But if you do the contact form, our contact people will definitely get you in touch with people in the state. Reach out, reach out.

Larry 33:52
Thank you. Thank you for joining us again.

Brenda 33:55
You’re welcome.

Larry 33:56
So alrighty.

Andy 33:59
Larry, you selected it turns out to be for miscellaneous clips that we’re going to play. Do you want to set up the first one with the former president like from 100 years ago?

Larry 34:09
Yeah, this is former President Harry Truman talking about the importance of not of making sure the constitution applies to everyone. And the context it was the pre-civil rights when Harry Truman was one of those courageous guys that said that colored people’s they were referred to in that era deserve to be treated equally. And so this tis ol’ give them hell, Harry.

Andy 34:32
All right. Let’s see, hopefully this works.

Pres. Harry Truman (Audio Clip) 34:34
I talked about Roosevelt in the New Deal and how it ought to be supported and democratic achievements in Congress and I didn’t blow my own horn didn’t have to people caught on and I talked about civil rights, that was in Sedalia, Missouri. And I was talking to nothing but white faces and a good number of more Klan members. And I said that I believed in the brotherhood of man. And I didn’t mean just white men but the Brotherhood of all men. And I told him that I believed in the Constitution and the Bill of Rights and that if any class or race can be pushed down below the rest in political and civil rights, well so could any other class or race when the time came. And I told them it was their duty to see to it that the colored in their locality got increased opportunities to exercise their rights as free men. Do you see? If you believe in the Constitution, well, then everybody’s got to have their rights. And that means everybody and it doesn’t matter a damn who they are or what color they are. And if you start making exceptions, well, then you just might as well not have a constitution at all. You don’t play fast and loose with that.

Andy 35:31
He said, don’t give a damn Larry.

Larry 35:32
He was known for, for his cultural language in that era. But, but the relevant part is about the Constitution. When we start playing with the constitution and saying that, if it saves one, we’re on that slippery slope that ol’ Harry feared. The Constitution applies to everybody. You don’t take a poll on the Constitution. So I set that up, because I’m bringing Harry back in future episodes.

Andy 36:00
Oh, and those are the fireside chats? Is that what that was?

Larry 36:02
No, that was just that was just him reminiscing about his his political career and including his his presidency. But yeah, he was he was just talking.

Andy 36:13
Okay. 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. registrymatterscast@gmail.com. You can call or text a ransom message (747)227-4477. Wanna 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 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. And do you want to set up the next one?

Larry 37:08
Oh, the next one is about… I kept it short. We can talk about legislative process and one of the tools the legislative process you’re getting to watch a tool being used right now. So roll the roll the clip

Reporter 37:25
A $1.9 trillion COVID relief bill is advancing in the senate after a tie breaking vote by the vice president but there are new hurdles to tell you about, Alexander explains.

Kamala Harris 37:38
The vice president votes in the affirmative

Reporter 37:40
tonight after vice president Kamala Harris cast the tie breaking vote to advance the COVID relief bill in the Senate Republican Ron Johnson in a last ditch effort to delay its passage forcing the clerk to read all 628 pages.

Ron Johnson 37:53
Section one short title section two table of contents

Reporter 37:56
Senate Democrats mocking the move.

Unknown Speaker 37:58
And if the Senator from Wisconsin wants to read it, let everybody listen. Because it has overwhelming support.

Reporter 38:05
But after President Biden signed off on changes that would send direct payments to fewer Americans, individuals making more than $80,000 and couples earning more than 160,000 will now not get a check. Some progressive Democrats complain that compromise is a mistake.

Unknown Speaker 38:21
Is it really worth saving point .05 percent to have less checks go out? This doesn’t make much sense to me.

Reporter 38:28
Still republicans argue it’s too expensive.

Unknown Speaker 38:31
Count me out for $1.9 trillion spend fest unrelated to COVID in a partisan fashion. This is everything President Biden said he wouldn’t do.

Reporter 38:45
At this pace, It’ll take the senate clerks 15 hours to finish reading the bill. But democrats vow that will not stop them from voting to pass the relief plan this week. All right, Peter. Thank you.

Andy 38:58
Tell me what you want out of that legislative process. Like what are we going after there?

Larry 39:03
Okay, when you when you don’t have the votes to kill something, nd at this particular juncture, it doesn’t look like the republicans are going to have the votes to kill the $1.9 trillion stimulus. I’m not opining one way or the other way. This is all procedural. When you don’t have the votes to kill that, then what you do is you use the tools you do have, which are parliamentary procedures, which we’ve talked about in the last couple episodes. And the republicans since they realize that if a vote happens, they’re going to lose the vote. They’re using the parliamentary procedure of stalling. Now, they’ll force the reading of the 600 pages when that’s done, then they’ll offer amendments which will all be voted down On a party line vote. There’ll be 50-50 votes in all likelihood on all the amendments. And they’ll do that till they exhaust themselves with amendments. These are all permissible parliamentary moves. There’s nothing illegal about them. And people that are watching this take place, they’ll say, well, they’re all crooked politicians. No, it’s not. When you when you’re using the system, when you don’t have the votes, you’re doing what you can try to stop the train. They don’t know. But that’s something large might happen that might sway public opinion against the democrats on the stimulus. I don’t know what it could be right now. But right now, the democrat democratic proposal that passed the House is now the Senate has broad public support, I imagine because all the free money, it’s going to be handed out, you know. I would imagine that that that is one of the reasons for the for the broad support. I mean, who doesn’t support free money? But you don’t know if something might could change that. And like I say, I can’t conceive of what that would be right now. But as as long as you stall, you have the hope that something can change the dynamics. What would happen, for example, if one of the Democratic senators, you know, they seemed to have a propensity to die in airplane crashes? What would happen if a democratic senator died in an airplane crash?

Andy 41:15
Well, especially if it was in a republican state than a republican governor would… (Larry: Right.) A republican would get appointed, then it would be a 51-49 and that would be turtlehead, he would become the majority leader again.

Larry 41:32
Yeah. So So now, that’s a brilliant come back on you. Because that’s exactly what I was getting at. If every republican governor says they are allowed to appoint senators, that what would happen all of a sudden you’ve got a new ballgame. So what you do when you’re in the minority is you use the tools you have to advance your agenda and their agenda is to stop Biden’s agenda. And like I say, I don’t want to get into the which way we’re leaning all that. But just understand, these are valid parliamentary tools. And that’s what that clip was for. That’s what the republicans were doing. And that’s all they can do.

Andy 42:12
And then next one, you want to talk about something going on in New York?

Larry 42:17
Yeah, this is our beloved Governor of New York who has had some political issues arise recently. And I think the clip will set it up nicely.

Andy 42:29
Okay, hopefully I don’t have any tech meltdowns.

Reporter 42:32
Two of the women who have accused New York Governor Andrew Cuomo of sexual harassment are speaking out with more. Here’s Dan Thompson.

Reporter 42:41
A day after Andrew Cuomo tried to extinguish the scandal engulfing him.

Gov. Cuomo 42:46
I feel awful about it. And frankly, I am embarrassed by it.

Reporter 42:56
Two of the three women accusing the New York Governor of sexual harassment speak out both former employees without explicitly saying it.

Charlotte Bennett 43:08
He implied to me that I was old enough for him and he was lonely.

Reporter 43:14
25 year old Charlotte Bennett was an executive assistant to Cuomo. In June, she says Cuomo asked her a series of intimate questions, including whether she had ever been with an older man.

Charlotte Bennett 43:29
I thought he’s trying to sleep with me. The governor is trying to sleep with me.

Larry 43:35
Okay, so I think if you’ve been a regular listener for a while, I don’t think anybody would say that I’m a great fan of, of Andrew Cuomo. And I did like Mario, the father, but I’ve not been enamored by him. But I set us up because we stopped at her accusation. Can you imagine that? A person, two adults, and he said, comments that suggested he thought that she was attractive. Should that disqualify him from holding that office?

Andy 44:16
Should we not hold the individual to a higher standard?

Larry 44:21
Of course, we should. The voters absolutely should. But that that’s what we have elections for. But there’s no crime being alleged. She said that the that the comments that he made, led her to believe that he wanted to sleep with her. Now I doubt he actually wanted to sleep.

Andy 44:44
That’s a euphemism that, I think is the definition of euphemism.

Larry 44:48
So, but, but that’s the extent she did not say that he threatened me with the motion, with demotion, termination or anything else. Her Particular allegations are that he found her attractive. Now I’m just wondering what kind of society can we live in where humans will not ever find another human attractive?

Andy 45:14
I wonder where does the line get crossed? I was having a minor conversation with someone just a short conversation before we started recording about this subject. And where does the line get crossed between? Especially because he’s a pretty powerful person, even like as a as a national stage set. I mean, New York’s what the second was the second most populated state, he would be a pretty powerful person has been the governor that sets up a very large power differential between him and whomever he is flirting with, and where does it become workplace harassment?

Larry 45:46
Well, that’s what the investigations gonna reveal. If there was any quid pro quo, if there was any. But I’m not sitting here saying that I like that. I like to think when I was supervising workplaces, I tried to keep all the appropriate stuff down. But I did recognize I was dealing with humans. And although I had a rigid policy in property management that my staff could not have relations with our tenants. I have no doubt that it probably occurred unbeknownst to me. And should the governor be flirting with the staff and suggesting that he that he would like to have a romantic…? Ideally, No, you probably shouldn’t be doing that. There’s no question about it. But does that disqualify him from being fit for office? Now, I personally don’t like him. I do not think he has done enough for criminal justice reform. I think he’s been absent completely on his power using his powers in terms of of reducing prison population as a result of the pandemic. I think… I could go on and on about but I’m focusing on this one thing. If the fact that you find an adult attractive disqualifies you, then we’re in serious trouble.

Andy 47:09
Where does the line get drawn between? Great job it’s really great to work with you. Wow, that’s a really nice tie you’re wearing today or nice blouse to some other kind, you know, pushing the the line, where does it cross to? I’m really happy that I work from home. That’s what I can really honestly say,

Larry 47:28
Well, I mean, I see

Andy 47:30
It’s complicated and murky to navigate.

Larry 47:33
When I’m in public, I occasionally see a well-dressed guy, I still feel it’s okay to tell the guy you look really wonderful today that that that suit is well coordinated. But I’m really hesitant to tell a woman anymore that you look good. Because it’s the seems like that that is translates into all of a sudden sexual harassment. You can’t just admire the color coordination. And I saw the former senator Claire McCaskill from Missouri, coincidence with Harry Truman. She is a regular on meet the press on Sunday. A couple three episodes ago, she had the most beautiful suit. She looked magnificent. I mean, she’s as old as I am, if not older. But I thought wow, she’s a fantastic dresser. I wonder if you can actually say that to anybody anymore.

Andy 48:17
Yeah, I don’t know. All right. So send hate mail to crackpot at Registry Matters. And the final one, will you set it up or just run it?

Larry 48:25
So the final one is, is about the police reform in the US and the US Congress. And there’s no intended partisanship here. This is merely a factfinding demonstration. But we’re going to show the clip about the proposal and what it would do. And then hopefully the screenshot materializes about which how the votes broke down between the parties. So roll the tape.

Reporter 48:57
The US Senate will get a sweeping police reform bill named after George Floyd as Minneapolis braces for the most anticipated police murder trial in memory. Here’s Gabe Gutierrez.

Gabe Gutierrez 49:11
With tensions high in downtown Minneapolis ahead of next week’s jury selection for the murder trial of former officer Derek Chauvin, who knelt on George Floyd’s neck. Overnight the US House passed a police reform bill in Floyd’s name.

Interviewee 49:30
What it signifies is we have people that understand that what happened on that day was wrong.

Gabe Gutierrez 49:32
Louisville, Kentucky banned no knock warrants following Breonna Taylor’s death after Elijah McLean died, Colorado got rid of qualified immunity, a policy that made it harder to sue police officers banning both at the federal level is now part of the reform bill along with banning chokeholds and creating nationwide databases of police misconduct.

Andy 49:55
Oh, right. And then I do you asked for it, Larry. And how About that? Wait not that, that there is a vote tally. Well, I have the screenshot up for those watching YouTube for the votes of the yeas and the nays in the house.

Larry 50:15
Okay. Well, if you if you look at that the measure passed in the House with 219 democratic votes and one republican vote in favor. The opposition was two democratic representatives voted no and 210 republicans voted no. So what that tells us as that these measures are perceived as being too radical for the Republican Party. And that’s why when you mentioned that they had a proposal in the Georgia a general assembly, I said, there’s no way in the world that’s going to pass the Georgia legislature because…

Andy 50:58
They’re predominantly Republican.

Larry 51:01
That’s correct. You’ll never get you’ll never get that out with Georgia General Assembly, not as, as it’s currently made up today. The police will have too much sway over the republican party when it comes to law enforcement and that that clip, we stopped prematurely, but that’s fine. It made the point. The other point I was gonna make where the clip stopped is that Mr. Floyd’s brother was talking about that, that he shouldn’t have to go through a trial. And nobody could feel worse. I don’t think them than I would feel about my brother being deprived of oxygen and essentially, it looks like a murder. But Mr. Chauvin is not required to plead guilty. He is entitled to a presumption of innocence. That’s the accused. He’s entitled to have a trial. He’s entitled to assert any defense that’s reasonable that his team wants to put on and he’s entitled to have that verdict read by jury, and he owes you no obligation to plead guilty. But that was part of the clip where he said he shouldn’t have to sit through that. I’m sorry. But that’s our system. We have an adversarial system. The accused owes you no obligation to plead guilty.

Andy 52:21
And that would be the right to trial and all that good stuff. And confrontation. That’s where I was going. That’s Eighth Amendment. Is that where the c confrontation comes in?

Larry 52:30
Do you expect me to know the constitution?

Andy 52:33
I kind of do Larry. I mean, we talked about this particular one fairly frequently. I’m sure yeah, we’re not going to talk about the 22nd, 3rd, and seventh amendments are but I’m pretty sure 8th is Confrontation Clause.

Larry 52:46
Yeah, I never can keep those straight. I’m not I’m not a numbers guy. I can keep the I can keep the first one straight. I think the second one then I start getting lost sector when your buddy watch. The fifth one.

Andy 52:59
The first one is the weirdest one to me. It’s the government cannot quarter soldiers in your house. I don’t think that one has ever been ever been stomped on.

Larry 53:07
So that that yes, I disagree with Mr. Floyd’s brother, but but on those reforms, we’re going to end up in the same situation the Senate, that it probably won’t go to the Senate because of the filibuster rule. You’re going to need 60 votes. And if the republicans if you can’t win more votes, this was voted on last year when the Republicans controlled the Senate. And they couldn’t get but a few Republicans to support it. So you’re gonna end up with the same thing. It’s gonna die again in the Senate. So those of you out there who think that criminal justice reform is important. If you live in a state where you have Republican senators, lean on them, and tell them you support these proposals. They need to hear from constituents. They need to hear loud and clear that these are reasonable proposals, even Kentucky after Breonna, even Kentucky conservative Kentucky did it.

Andy 53:59
Yeah. And there was a US car there was another state was that Texas that said something that was ever Colorado? Okay, well, then Never mind. Wasn’t that where… I remember some police incident shooting somebody and they unfortunately kind of run all together at this point. I think that was one of almost like, not home invasion, but the police were responding to a call. I think so. And it was a woman just in her house.

Larry 54:25
There’s so many I can’t keep track of and let’s go to the main event.

Andy 54:31
Very good. Very good. I guess I’ll just start with these questions. So you people put this case in called Lacey Stratford et. al. v. John Wetzel, Secretary, Pennsylvania Department of Corrections. And I think it was released a couple of weeks ago, back in sort of the beginning of February and we’re just now getting to talk to it. What does it have to do with us and maybe you’re just bored Larry?

Larry 54:57
I wouldn’t sound bored at all. It’s an important case for us.

Andy 55:01
Well, then why is it important for us?

Larry 55:03
Well, because it’s, it’s it’s a decision that deals with an important issue of people who are required to register being denied release, even though they’ve actually been approved for parole. So the the This case has been bobbing around for years. But this the claims are the although they’ve been granted parole, they’re released from prison and placement into Department of Corrections operated halfway houses, has been significantly delayed because of a policy, considering community sensitivity to a criminal offense and making these placements. And that’s what this case is about.

Andy 55:43
Is this done at the appellate level or is this in trial court?

Larry 55:46
Well it has been up since it’s been pending since 2016. The state has tried their best to extinguish this is a Pennsylvania case. But it’s gone up on appeal. And the appellate court has kept the case alive. And so now we’ve got a decision on the on the merits through summary judgment, and it’s really good stuff. Really good stuff. I mean, this

Andy 56:10
Summary judgment, your favorite thing?

Larry 56:13
Well, in some cases, it works out okay. In this case, it appears to have done just what we needed.

Andy 56:17
Um, all right. Well, and the way I read the opinion is it says that these plaintiffs like all incarcerated individuals in Pennsylvania are statutorily eligible for parole after serving their minimum sentence as fixed by their sentencing judge. Next, it stated that the Pennsylvania Board of probation and parole the PBPP, say that 10 times fast, investigates all individuals eligible for parole. In deciding whether to grant parole the PBPP considers several factors including the nature and circumstances of the offense, the recommendations of the judge and prosecuting attorney, the character and background of the individual, the individual’s conduct in prison and participation and treatment, the individual’s physical and mental condition and the individual’s complete criminal record. The PBPP also considers the positive recommendations, the Department of Corrections, and individuals demonstrated motivation for success and whether the individual has accepted responsibility for the offense committed. These all sound reasonable. So, Larry, where’s your problem with this?

Larry 57:19
Well, that is actually the problem. And you spent a lot of time trying to pull all that out of the decision, but that’s exactly. That’s what sunk the state. These people have already gone through this process of having all those considerations done before they were determined eligible for release. So, my beef is individuals with sex offense classifications are subject to additional requirements as part of the parole process. Prior to being considered for parole a PFR must complete a sex offender treatment program. At the time of parole consideration, the Pennsylvania sex offenders assessment board consisting of psychiatrists, psychologists and criminal justice experts and behavior and treatment professionals evaluates each PFR. When the PBPP grants parole, we should just say when the board grants parole, it’s typically with a condition that the individual have an approved home plan. And this approved home plan can be a personal approved residence or placement at a DOC operated halfway house. And due to difficulty in finding approved residences, obtaining sufficient money to cover rent and cost of living, most of them rely on placement in halfway house, and the halfway houses are not taking the PFRs because of community sensitivity. And that’s what this case is all about.

Andy 58:42
So they are granted, isn’t this almost like them being held past their sentence date, then? Is that what this is?

Larry 58:49
No, they’re eligible for parole but they’re stalling their community reintegration because they don’t have a place to go. That’s why that long question you had was so relevant, because between what you said and what I said about the additional steps that a PFR must go through, they’ve been vetted and vetted and vetted but yet, they’re still being restrained from being allowed to reintegrate after everyone has said, this person is reasonably safe for release. They won’t release them because of the heightened community sensitivity.

Andy 59:25
Larry, I’m getting the feeling that we talked about this, like I mean, like a million years ago, has the policy related to PFRs changed during this case?

Larry 59:35
Oh, yes, yes, yes. We’ve discussed this case before, and the policy regarding that community placement has evolved over the life of the case. And 2016 when the case was initiated, the policy treated parolees with a sex offense classification differently from other parolees, under the. Under the policy at that time, PFRs who received positive parole actions were precluded from community placement until they were the within 24 months of their maximum sentence, unlike other parolees without sex offense classifications who were placed upon receiving a positive parole action recommendation. So PFRs were regularly designated as hard to place and they were rejected, simply because of the community sensitivity. The parole authorities in Pennsylvania did not want the community correction centers to have too many of these kinds of people.

Andy 1:00:31
Um, my thoughts on Pennsylvania are that they don’t have they don’t have any sort of 1000 foot kind of restrictions. So if they’re granted parole, then what is the what is the problem of putting them into a halfway house?

Larry 1:00:45
Well, it was the sensitivity of the community that they were worried about, that they were going to have clustering.

Andy 1:00:50
Don’t you post flyers on people’s doorsteps?

Larry 1:00:54
Well, the registry itself would pick the people up, if you if you had, if you had 14 PFRs in one halfway house, it would be easy to see the cluster.

Andy 1:01:05
Um, and now we could then move over to equal protection, which is going to be like 13, 14, 15, something like that amendments, and I know you’re not into numbers, how can they have two separate tracks for people that are PFRs versus not PFRs?

Larry 1:01:18
Well, that’s what the court had trouble understanding. The court noted that although the parties offer competing views on whether the DOCs policy comports with equal protection clause, the court concludes quote, it does not, the court held the DOC’s policy of considering community sensitivity and delaying the release of parolees with a sex offense classification on that basis violates the Equal Protection Clause of the 14th amendment. The court therefore granted plaintiffs motion for summary judgment, and they denied the DOC’s motion, and they enjoined the DOC from continuing this unconstitutional practice. And that’s on page 10 to 11 of the opinion.

Andy 1:02:00
I’ve heard you talk about different levels of judicial scrutiny many times which is going to be rational basis and strict scrutiny. And I’m missing one of those. (Larry: Intermediate scrutinity.) And the one that I’m screwing, oh, intermediate, okay. And the one that’s sticking in my brain is the rational basis test. And you said this level of scrutiny is where the appellate court is most deferential to the challenge, what level of scrutiny was applied to this case?

Larry 1:02:26
Well, oddly enough, they struggled with it. And they concluded that the correct level of scrutiny this judge concluded that was not intermediate, was rational basis. But it didn’t even pass the rational basis test which is so differential. The DOC asserted that it has legitimate interest in assured that no one that no one particular CCC community corrections center and the surrounding community be required to house a disproportionate number of PFRs. The DOC claimed that, without evidence, that if it were released PFRs without delay, at the pace as other classifications of offenders, that the CCCs would be overburdened by PFRs, which in turn, would overburden the communities where the CCCs are located. And the court didn’t buy into that.

Andy 1:03:16
Yeah, I struggle with that one. Just rational basis. That’s the bottom tier, because obviously strict would be the hardest one. So then rational basis has to be the bottom one. We just have to figure out whether does this even make sense before we try and challenge it at a constitutional level. Does this just even make sense? You’re prejudging the people that just because they have a PFR type offense that they are inherently going to, like spontaneously offend on people. Well, it doesn’t seem like that even fits.

Larry 1:03:45
let’s just go to the rational basis because it’s so misunderstood. People think that rational basis means that what they’re doing is rational because it says rational basis. It doesn’t mean what they’re actually doing is rational. It means what they hope to accomplish is a rational underlying motivation. So all they have to assert to pass the rational basis test is that this is what we would like the result to be. The courts don’t get into determining if it’s the most efficient, if there could be a better way of doing it. They don’t redesign public policy. But they determined that a rational basis test applying to this particular situation, tt doesn’t pass that test because they didn’t have the evidence to support what they were saying. I mean, they they proffered all these reasons for why they’re doing it but they didn’t have any evidence to support it.

Andy 1:04:43
And we need to get out of this one. What’s the bottom line?

Larry 1:04:47
Well, the bottom line is we’ve got a great decision from a trial court and as states typically do, they will likely appeal, but the court noted that the department corrections has not proffered a legitimate justification for its policy of delayed release of PFR to community correction centers, there’s after they receive a positive, proactive meeting that that board has granted them release. And then that extra step that a PFR has to go through that all that has been taken in consideration. And they say, any consideration, this is a quote, of community sensitivity, which on the read this record is, is merely private biases against PFRs is not permissible. And I substituted PFRs with what the court said, where they said sex offenders, for treating PFRs differently. As for the concerns with public safety, these considerations are misleading, because PFR seeking placement in a CCC, like all other vendors have received a positive parole action and have received a termination there was no reasonable indication that they may pose a risk to public safety, and are subject to structures of Megan’s Law, as well as for the protection of the public. So this is a great decision. I hope they don’t appeal, but I suspect they likely will. And, and this will be tied up for it’s been going since 2016. So it may run another couple of years.

Andy 1:06:16
If we can use rational basis to jump over to the Georgia bill that the two knuckleheads, Representative in some small county proposed, they didn’t like that a level one person got off the registry, and they’re trying to propose this as a law. They didn’t have anything to back up What they were saying. They just didn’t like it. They didn’t have some level one some cadre of a level one offenders that went out and reoffended. They just had it that they didn’t like it. Is that something that that doesn’t pass a rational basis? If it were to go to court and enter into at that level? I know that it’s assumed to be constitutional when it’s signed in. But if it were to make it to court, does that is that something that doesn’t pass a rational test?

Larry 1:06:57
You know, that’s an interesting question. I’m gonna need some time to cogitate on that one. So the Georgia assembly hypothetically might pass the proposal, because… it’s not uncommon. States have passed laws that limit people’s ability to get off. New York would be a good example. You know, their registry was 10 years and they added another 10-year extension onto it. So if Georgia tightens their eligibility for getting off of that petition process, That’s an interesting question. Because do you have to have a petition for removal process? Absolutely not, at least at least aware of any case law that requires on it, that’s what we should work towards is to keep someone on the shaming list, there has to be has to be some due process. But if iGA makes it more difficult, and they increase the minimum amount of time before you can apply, can they do that without any evidence? We need to we need to think about that. That might be a cause of action. You may have invented a new claim that has never been previously asserted.

Andy 1:07:56
Woo, go me. I need to press the button that says applause. But I don’t have one. Hey, wait. I’ll try this one. *complete silence* There. You didn’t laugh.

Andy 1:08:07
I didn’t hear any applause.

Andy 1:08:09
Oh, no, I don’t have applause. It just said I’m trying to win the game.

Larry 1:08:12
Oh, I didn’t hear that one, either.

Andy 1:08:14
Oh, it didn’t come over. I’ll try again. There.

Audio Clip
I’m trying to win the game.

Larry 1:08:19
That is what we’re in the business of doing. We’re trying to win the game. Interesting.

Andy 1:08:23
That’s super interesting that they listed all of those things. Basically, people have been given parole by the parole board, yet they can’t get into housing. So then they’re just denied. And then to me, that sounds like they’re detained past. I know, parole isn’t any sort of guarantee that’s totally a privilege. So they’re not being held past their maximum release date, but they’re being held up to because they don’t have a place to stay.

Larry 1:08:48
I think I think they might be actually held past their release date, if they’ve been granted parole. And you would normally be integrated into a community facility, if you don’t have your own facility, which is what it sounds like they do in Pennsylvania, then the fact that they are adding an additional layer of community sensitivity. So we don’t want too many of this kind in the community. That sounds like ] to me that you’re actually being held in prison past your release date. And it sounds like that’s what the court agreed with.

Andy 1:09:17
Right? Interesting. Oh, that’s super interesting. And again, this is only at the state level? Just trying to see where it would apply outside of PA this isn’t this isn’t any sort of appellate level. This is just within pa itself?

Larry 1:09:32
Well, it has been up to appeal before the state tried to extinguish by making modifications to the policy. And they tried to extinguish the claim several times. So it’s already been up on appeal. And I didn’t have the time to do all the work on the previous of what the appellate court has decided. But it very well could go back on appeal again. Because the state is not going to want to have to make these changes. They’re not going to, I hate to tell you they’re not going to want to say oh well, we’ve had this wrong all along and get these people out of prison as quickly as possible. So if they have not already had the door shut on the previous appeal that went up, they’re likely to appeal again. So we will be staying tuned and probably have our Pennsylvania people come in. And once they make their decision on whether they’re going to appeal, we can have Theresa come in fill us in with additional detail.

Andy 1:10:23
Fantastic. All right, man. Um, anything else? We had a handful of articles, but we are already way past an hour, and we should shut it down pretty soon.

Larry 1:10:32
I think we should just close down because we we’ve got a time limit here now of one hour and seven minutes.

Andy 1:10:39
Oh, well, we’re like four minutes past it. All right. Well, we do have a new patron, Jason came on board. Thank you, Jason, that is super awesome that you came on to be one of our Registry Matters patrons. We really love all of the listeners that we have. And the patrons help keep this whole shebang going and going and going and they’re really special people to me. Otherwise, you can head over to registrymatters.co and get show notes and get the podcast and links and places everywhere. voicemail is 747-227-4477, registrymatterscast@gmail.com. And of course I just mentioned it go over to patreon.com/registrymatters. Sign up for just as little as $1 a day. $1 a month excuse me and goes a long way to help show that the podcast is appreciated by all you people.

Larry 1:11:28
What is this you people stuff?

Andy 1:11:32
I think it came before you learned me of where it came from? Because Hang on.

Ross Perot (Audio Clip) 1:11:39
I don’t have to tell you who gets hurt first, when this sort of thing happens, do I? You people do, you people do. I know that, you know that.

Larry 1:11:49
That’s Ross Perot, former independent candidate for President in 1992. He was the head of a company called I think it was like EDS, electronic data systems or something

Andy 1:12:01
correct. Yes, EDS Corp and one of the first billionaires that I heard about.

Larry 1:12:06
Yep, he was a looney tune. But but that seems to run a run that seems to run in the family of people get rich, they somehow go nuts.

Andy 1:12:15
I’ve heard of this. Well, cool, man. As always, Larry, you’re the bomb. And I appreciate it. And I know our listeners appreciate it too. So give a big round of applause for Larry. And with that, I will I’ll see if I can’t find somebody else for next week. But otherwise, if you’ll mark off your calendar. Maybe we’ll have you back next week, too.

Larry 1:12:30
Sounds good. Thanks for having me.

Andy 1:12:34
Take care, buddy.

You’ve been listening to FYP.
Registry Matters Podcast is a production of FYP Education.

Transcript of RM167: Hijacking A Bill With Floor Amendments

Posted on March 1, 2021 by andy

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, transmitting across the internet. This is Episode 167 of Registry Matters. Happy Saturday, Larry. Good evening. How are you?

Larry 00:14
Oh, very well, thank you. Glad to be with you.

Andy 00:20
Yeah, I decided that we probably should invite you back. Because you’re the only person that knows anything about this stuff. Well I shouldn’t say the only person. You’re the most knowledgeable person that I know of.

Larry 00:30
Well, I pity you, if that’s the best you can do.

Andy 00:34
I wanted to throw something at you, some kind of big news in the week of a particular very wealthy golf player was a, I was riding my bike back from dinner. And this sort of was crossing my mind about the safety of such things me riding a bicycle, whatever. And so this particular golf star superstar, had had a bit a little bit of a mishap. And I was just, like, if you had that much net worth, he’s got a net worth of like, nearly a billion dollars, it’s like $800 million. If it were me, I would not drive. I like driving, but I would not drive. I would have because my body is really like he makes his money from driving, not driving, he makes his money physically using his body. And I wouldn’t put myself in a precarious situation where my mishap would cause me to not be able to earn money anymore. And I wanted to get your opinion on this. Since we covered stocks now we can cover golf real quick, and then we could go talk on the registry stuff.

Larry 01:26
Well, I would, I would say that there’s a lot of logic in what you’re saying, particularly when I think this is like his third accident.

Andy 01:36
He’s demonstrated an inability to function properly.

Larry 01:41
He’s either been extremely unlucky. And I think there might have been the suspicion of alcohol being involved in one of them. I really don’t follow very carefully. So it may be spewing, or I don’t know what I’m talking about. But I vaguely remember him having one or two other accidents. And there was suspicion of alcohol involved in one. Am I right?

Andy 02:02
honestly, I don’t even know someone at some golf pro person, feel free to let us know where we’re wrong here. But I just I was really just going after it from this this one thing and so he broke his tibia in this event?

Larry 02:14
He broke his what

Andy 02:16
his tibia. Are you familiar, this is a bone in the lower portion of your leg via in your calf area, it’s a larger bone in your leg. It’s called a tibia. You’ve never heard of this word?

Larry 02:26
I can’t say it’s ringing any bells?

Andy 02:29
Alright, well, I guess we should move on from anatomy and sports and move on to registry issues. So tell tell us what’s going on for the night?

Larry 02:38
Well, we have a plethora of questions. Do you think we can actually get to them all they’re from the inside and from the outside. Can we get to all the questions?

Andy 02:49
I believe that we can get to all of them. I will turn on my speed reader voice.

Larry 02:55
And then we have one article, we’re going to talk about civil commitment, because that is such a tragic situation. And people constantly remind us that we don’t talk about that enough. And then we wanted to bid a farewell to the esteemed, distinguished, I should should say, a distinguished talk show host that we forgot to mention last week, I think it was on the agenda, but somehow it got missed.

Andy 03:22
I think we were we were packed for time. Possibly.

Larry 03:25
Yes, but the conservative icon Rush passed away on that there’s been a lot of eulogies and although I was not a great admirer, I did listen to Rush with some regularity, because I felt like that I needed to be balanced and informed. And I needed to hear perspectives that I might not agree with. So I was a regular listener to Rush.

Andy 03:47
Completely. And does that round it out and ready to move on?

Larry 03:50
Let’s do it.

Andy 03:52
Cool. All right. The first question of the night comes from it says dear Registry Matters, guys. And this is the second question. We’re not going to cover the first one. It says:

Listener Question
In Michigan, the new law removes many restrictions on where you can be present. What restrictions does it leave in place? Can I go to state or local parks now? How about the Detroit zoo?

Alright, that’s pretty concise and all that.

Larry 04:17
Yeah, this is from one of our subscribers, and I wasn’t able to get him full answer on this because it doesn’t seem like anyone knows for certain yet. As best I can understand, if your conviction predates, is in advance of, there were 2006 and 2011 amendments that that render the Michigan registry to be punitive. And, and those included proximity restrictions. As best the Michigan person that I communicated with, as best as I can understand it, those restrictions are no longer there for the people who have those older convictions. But I would say the safe thing to do would be if you’re going to Live in Michigan would be to check with a legal professional or at least with some website like the ACLU of Michigan where they try to explain what your rights are and how this has changed. It would be best to double check that in terms of the Detroit zoo. That’s just too particularized. I don’t know that there was ever an exclusion from the zoo. But I don’t know that there is not but it looks like that that that the people was older convictions may have escaped all those restrictions. But don’t hold us to it, it Registry Matters.

Andy 05:34
And they close out and say thanks, guys, great podcast, fyp, and etc. And then moving on to an article or a question coming over on the NARSOL side says:

Listener Question
Dear NARSOL when looking for a place to live, whether it be an apartment or house to rent, are you required to inform the officer and/or landlord of your requirement to register? Can they evict you if you do not tell them and they find out that you are on the registry? Are apartments or homeowners associations allowed to deny your application because of your requirements to register? Thank you for your time.

Oh, can I like provide some teeny little bit of anecdotal evidence on this one?

Larry 06:09
Sure.

Andy 06:10
All right. When I was moving into my apartment, I had no intentions on telling my landlord. And I looked up online, and I saw that there’s a park, that turns out to be 800 feet away, but it’s not an official Park. So it turns out that they allow me to live here. And I ended up telling him I was like, hey, look, this is the situation and I’m sorry, I can’t live there. But then they came back and said I can and he’s like, I don’t think I can rent to you without telling the neighbors. And I was like, I don’t think you have to tell the neighbors. And I even talked to you about it. Because there’s nothing in the statute that says yes, to tell the neighbors and he comes back he goes, I think I have to tell the neighbors, and so back and forth and back and forth. And then he said you can move in because he didn’t have to tell the neighbors.

Larry 06:46
So well, on this one I really liked it. I think I’m going to run it in the Digest as well, the newsletter that NARSOL publishes. I’ll take the last one for the last question are homeowners associations allowed to deny your application because of your requirement to register? I would phrase it slightly different. I would say because of a conviction for a felony and most sex offenses in almost all of our states, they’re very few left that are misdemeanors. And the answer is yes, they can. And that’s what they would say. They would say that it’s because that you have a felony conviction. Management would not say it’s because of it being specifically a sexual offense. So they’ll escape you on the last one. So unless you have a particular anti-discrimination clause that includes felons in that particular jurisdiction, that’s not going to help you. So we’ve got that one off the table. Can they evict you if you do not tell them Aad they find out you’re on the registry? I would say probably not unless they specifically asked you on the application and you omitted the information. I’m a person who believes that if you’re not asked, you should not volunteer the information. Now there’ll be 100 emails that will come in and say, full disclosure is the best thing to do. And that’s all right. That’s your opinion. But I did property management for 17 years. And if I did not ask it, I was surprised they would tell me anything if it wasn’t on the application, or if I didn’t feel the need to ask it in an interview. So the answer is yes, they could evict you if they had it on the application. And you said no, and you had been convicted of the offenses. The application would go something like have you been convicted within the last X number of years, have you been convicted of a felony or any criminal offense other than minor traffic? They have worded that either way. If you answer no, then you’ve misrepresented yourself, and they could terminate your contract. So that would be all dependent upon whether your application requires you to disclose it. But then he gets to get back to what’s really the crux of it, in my opinion. He wants to know about informing them, even if you’re not required to. And there may be cases where you’re not required to by law. But your PO, your supervising entity ,may tell you that you have to notify them. For example, in in the state of New Mexico, and I think in most states but particularly in this state, I know for certain that if you’re under supervision, the supervising authority will notify your employer of what you’re being supervised for because they have been hammered with negligent negligence lawsuits because someone got a job and they embezzled the place blind and they were they had embezzled the previous place blind and they were on supervision from embezzling the place blind and they did it again. And so they will do that. So your supervising handlers may require that you do that. Or there may be states and jurisdictions where they prevent and prohibit clustering. So they may have an issue with you clustering. So they may need to know that. And I’m really unclear how that is enforced. Because if you don’t know a person’s on the registry and your landlord, how, how would you be able to prevent clustering? That one puzzles me. If you don’t know, how would you know? So what would you do?

Andy 10:24
Can you describe clustering?

Larry 10:26
Well, if there’s like only one can live at this address, only two can live at this address. Because what they do is they build these Exclusion Zones where that a person required to register can’t live with them, all these things. So you end up with a little sliver of land that’s in an industrial area. And all of a sudden, that’s the only place people forced to register can live. And all of a sudden, you have an accumulation. And we can’t have that, because now they’re clustering and who knows they might network together. And they might overthrow the government or something. So they pass these laws that at any given address that only two can live, that are required to register. So, you can run into all sorts of issues. So even though it’s a great question, the answer is, it’s all particular to your situation and what jurisdiction you’re in. And you’re going to have to deal with it when the time comes. And I think for this person, the time is coming fairly soon. So that’s why he’s asking the question.

Andy 11:23
And let me get back to your property management experience. I’m going to assume, because my experience with apartments is that they are a single address with apartment A, building this and does that count for the clustering of it being the 123 Main Street, apartment A? Or the individual addresses for each unit?

Larry 11:43
Well, that would be my question. I don’t know the answer to that since we don’t have ridiculous laws here. But it would, my contention would be that each apartment is a is a different address. But okay, if you if you were trying to prevent PFR from living that you would say, well, 5721 Osuna Boulevard is all one address. And you say, Well, no, there’s actually 164 units in here. And each one of them is a unique address. And so, I don’t know the answer to that. It would depend on a judicial interpretation unless the statute that created that defined what an address was. And that’s where the PFRs were not at the table, you could easily have something very carelessly drafted, that would not make that clear. And you could have an enforcement unit, the sheriff’s department say, Well, I’ll tell you what I will do. I’m going to keep our community safe. And we’re not gonna let them cluster in those old apartments, then they’ll be 30, or 40 or men, no telling what they’ll do.

Andy 12:46
Yeah, because you would have, if they were all efficiency apartments, they’re only 300 square feet, and you could stack a million of them in a square mile. And then you have just a hole. And that landlord happens to be like, Hey, man, if they pay rent, I really don’t care. So then they’ll cluster so to speak in this one tiny little space, and you have this super red zone, a heat zone on a map that looks like there’s just a billion of them in that one tiny little spot. But they’re all living in their own apartments and not hanging out with each other. And they’re just taking the bus to go to work and doing their own thing. But it looks like I shouldn’t live in that part of town, because they’re all there. So it sounds like from your point of view, you wouldn’t necessarily have cared, you’re looking for the quality of the person and all the other factors. This might be something on your list of things. But you’re not going to say you’re on the register. you’re disqualified, just done. Kick rocks.

Larry 13:35
well, I should have a guest who used to, invite a guest that used to be a tenant of mine who, who was internet savvy before I even knew what the internet was. And she came and told me that I had pfrs living in complex I had two at the time and she came and told me about them. And I was unclear how she knew. Because nobody in the right mind would go down to the, to the to the central office and asked to see the printed list. And she’d helped me out and she looked him up online. I said you did what? She said I looked them up on the internet. And so then we had a discussion because she wanted to know how they got past the screening. She said I almost didn’t get in and I’m a professional. She does tech support and stuff. And she said, you know, you put me through the third degree, how did all these people get in here? And said, well first it’s not all these people, and second of all, their circumstances were evaluated, and we did a risk assessment. We decided that it was worth giving them a chance, but she was very discombobulated that we had anybody on the registry there and I had no idea that it would be that easily discernible. That was nearly 20 years ago. And she was like, Hey, did you know? I said, Yes, we know. How did you know?

Andy 14:50
Yeah. All right. Well, then let’s move on to:

Listener Question
Dear Legal Corner. I was wondering if I wanted to change my supervised release to another state, is it easier to change that when still in federal prison or when I get out? Also, what are, what are the steps to do both. And I see that with boff. And that’s thanks so much, Robert. God bless.

Larry 15:14
So being that I have limited experience, I did reach out to a federal practitioner. And as best the practitioner knows, there’s really not going to be a great deal of difference when you’re trying to change your supervised release, because they’re generally going to release you to the jurisdiction where you were convicted. And, and the federal system, you may have gotten shipped all across the country, because any facility that’s appropriate for your security level and that has bunk space may be where you end up. And so, the practitioner told me that you can, you can request to be released at another location, but they’re going to apply the same type of scrutiny wanting to know if you have connections that would warrant them letting you be released there. And if the if you don’t have those connections and support structure, I think we had a question last week where that came up about being denied because inadequate support. And so the lawyer told me that, that in terms of what do you apply on the outside or inside, he is not aware of there being any difference in terms of the standards. They’re going to be looking before they let you move, and transfer your supervised release, what type of living environment you’re going to have, what type of support structure you’re gonna have. So as best I can answer the question with the resources I have, it’s not going to make a big difference. Now I happen to be just a tad bit more skeptical about people who work in prisons, and I don’t think they’re looking to do any more work than they have to do. So something tells me even though I can’t, this is only an opinion, I would bet that the person in the prison is going to want to do a little bit less work and deal with trying to get your supervised release, when you get out of prison. To people that are that are listening to the podcast that have tried to do that from within the federal system before they were released, and if these people helped them immensely to be transferred, that would be good information for you to share with the podcast, because that way we can enlighten others that that they are actually willing and able and diligently do try to help you get released to a jurisdiction that would be to your liking. So my knowledge is limited. So, our listening audience. And we have the best audience as Rush said, in the whole United States. And people who listen to this program, they do know a lot too. They can contribute.

Andy 17:37
I got you. I think we actually, somebody is in chat, but they are being very non talkative. I would try and impromptu, get him to come on, because I believe he has, he is an individual that was incarcerated in a state and then was released into another state. And I’m pretty sure he’s fed charges. He’s up in the middle North there starts with a W. I don’t know if you remember who I’m referring to or not?

Larry 18:02
Yes, yes, I think I do.

Andy 18:03
And but I just wanted to add one little thing that someone in chat has said, there’s not a whole lot going on lots of work. Not much play. RM is my social life. How pitiful is that? And I think that’s kind of offensive, that it’s not that pitiful that this is your social life. I think this is amazing.

Larry 18:19
I agree. I think we should do this seven times a week.

Andy 18:24
I don’t know about all that. That would be a lot of work. I couldn’t put up with you seven times a week. That would drive me crazy. And Brenda says they seem to be more interested in knowing you have a support network plans for housing and work and all that. I think that probably makes a lot of sense too.

Larry 18:40
Yeah, that’s what the attorney was telling me that that, that your support, your level of support has more to do with it and whether you’re in custody or out of custody when you’re wanting to make the move. But I have so limited experience, I don’t want a person to rely on everything I say if we can get better advice.

Andy 18:58
Well, as you just said that we have the best audience and now that Rush has passed, I think our audience is actually quantifiably the best audience.

Larry 19:05
Well, it would be and I’m guessing that everybody listens to Rush is now going to immediately switch to rRgistry Matters.

Andy 19:11
I think that’s pretty good. That could work out. All right, then moving over to another article of question to the legal corner.

Listener Question
I am a federal prisoner, and I plan to be released in Florida. My question affects large amounts of people. While in prison, I have asked the same question to three case managers. I reached out to four sources outside of prison. No one can answer my question. They can only tell me what they think a prior procedure, “we’ve always done it that way,” or what they’ve heard. My question is simple. Where in writing does it state a federal prisoner cannot be released to halfway house in Florida? I always say things like who said or why? One cannot fight the proverbial beast unless one knows who the origin of the beast is. I was convicted of bla bla bla bla bla of a minor that crime is either the only sexual crime or one of the few that allows a person to earn time under the first step act. I do qualify under the law to earn time off towards a halfway house or home detention. However, in Florida in order to be released to home to detention, you must get an ankle monitor. To get this ankle monitor, you must go to an orientation. This orientation may only last a few hours, but the orientation is only given at the halfway house. As a sex offender, I can’t go to a halfway house, thus no home detention, no first step act. This is a catch 22 and just another way to keep sex offenders in prison in Florida. If I can find out why sex offenders cannot go to a halfway house, maybe I can fight the issue and open a path for others. Only two states prevent sex offenders from going to halfway houses. In my situation, no one ever asks why they just accept. Please give us any help you can. Sincerely

Larry 20:52
Wow.

Andy 20:55
Yes, there’s a lot going on there. But like I got it, if halfway houses, I think run by an individual or something of a nonprofit, they probably don’t want the risk associated with PFRs. If there is one?

Larry 21:09
Well, in Florida, you have and see the reason why nobody can answer it is because there’s a multiple number of answers that go into it. And it’s kind of like the the one-line zingers. He wants just one simple thing. Is there a statute that says sex offenders cannot go. No, there isn’t. I have not been able to unearth it. I shouldn’t say, No, there isn’t. This came up about two years ago. And I wrote an email to the Bureau of Prisons. And not surprisingly, they didn’t answer it. But they didn’t answer it because there is no statute. I can’t find it. It’s not there. But just because there isn’t a statute doesn’t prevent things from being done. For years and years in Tennessee, th Department of Corrections told everyone who had an obligation to register about the 10-day, 11-day Halloween festival prohibition against doing it. Well come to find out in one of the recent court decisions out of the batch of good decisions we’ve had out Tennessee, it’s been unearthed that there was no requirement that could be imposed. There was nothing in statute. This was just administratively being done. And the people in Tennessee who were required to register, were just accepting it at face value and saying okay, yes, sir. I won’t go out on Halloween. And I won’t go out for the 10 days. I cannot unearth any statute, per se that says an offender cannot go to a halfway house. Now I can unearth restrictions, Florida’s a hodgepodge of restrictions that vary from 2500 feet – Collin County – to various levels of restrictions. So the halfway house may fall within one of those local Exclusion Zones. Anyone that’s required to register can’t be within 1000 feet, because the halfway house is within 1000 or 1500, or whatever the exclusion zone is. So that may be one thing that’s keeping the halfway house from… there could be an internal BOP policy, which I don’t have any way of getting to that. But there may be a directive in the southeast region that that we don’t do that. Or maybe it’s just particularized to the state of Florida because of the heightened sensitivity. But there are a number of things keeping him from being able to go to a halfway house. And it’s a combination of that the way they’ve always done it. There are local restrictions that are imposed by cities and counties. And the halfway houses themselves, although they are privately owned and funded by governmental contracts, they’re usually nonprofits. They usually say the BOP doesn’t own any halfway houses, to my knowledge, they contract with providers. They may just simply not want what they perceive as liability. It’s kind of like I think Brenda could tell you 10 years ago, the legislature when they were trying to they will look at it considering civil commitment, this specific sexual offender civil commitment, and the mental hospitals made it clear, the administrators, we do not want those kind of people in our asylums. We’re not equipped for that liability.

Andy 24:13
Yeah, Brenda was pretty much agreeing with the point she was saying it just before you were speaking to it, that Florida that probably are a lot, a lot of them are off limits due to the living restrictions.

Larry 24:24
And it makes it very difficult for the writer of this letter. He can’t attack it, because it’s innocuous. He doesn’t know what to file and to whom, whom to file it against. Because no one can tell him what he’s fighting. So he wants to attack the provision. And what I would tell him is that I wish I mean, it ought to not be that way. But if I were looking to reintegrate my life and get started, Florida would be way down on the list of places I’d want to be because of all this minutia you’re gonna have to deal with and how horrendous their sexual offender registration requirements are and the fact that you never get off. If I were you, I would try to avoid ever getting on Florida’s registry because if you’re lucky enough to be able to go to another state where you can get off the registry, and you’ve ever registered Florida, as it currently stands now, they will carry your registration information forever. So if you go to Vermont, do your 10 years, or you go to Minnesota, do your 10 years, or you go to Georgia and you do X number of years and you get released from registration. Guess what? You’ll still have that image and that information on the Florida registry. So I would try to avoid them. That would be my advice. But I understand what he’s what he’s what he’s arguing about here, what his issues are, but I don’t know what to do about it.

Andy 25:43
Yeah, I’m with you. And then this one is second to the last one. This one dude, this one has a great image. And now of course, I’d say that I won’t be able to I’ll try to get to the to the picture, someone has artistically drawn themselves with their head through the bars. This is a really great looking picture. It’ll show up in on the YouTube side here in a minute.

Listener Question
Dear friend, I will be released from prison on August 2, 2021. (Andy: Well, congratulations on it being about six months away.) Hence, I’m asking for your advice. What is the best states for a PFR on lifetime supervision to live in, and the contact information of any advocates in these states that might be willing to help me find a job as a paralegal? I’ve enclosed my employment info, feel free to pass it on to interested individuals. Thank you, Jeffrey.

Wow, I’m really impressed by the artistic ability of doing a self-portrait like that. That’s, I’m impressed.

Larry 26:35
Well, how do you know that he did it? How do you know it wasn’t done for him?

Andy 26:39
Well, that’s true. I don’t know that. So I’m going to make that assumption.

Larry 26:45
Well, you know, some kind of nut put this in here. But it’s one of those that’s difficult to answer. Because we, the last thing that we or NARSOL or any advocacy organization should want to do is to cause the states that are not as horrendous to become more punitive with the registration requirements. And so therefore NARSOL has taken the position that we don’t, we don’t encourage state shopping. Now, having said that, I would agree. I wouldn’t want to be in one of the harsher states, I just told you, where you don’t want to be for sure. You don’t want to be in Florida. And I forget where he wrote from. So I was gonna, I was going to take a look at that. But maybe I can find it real quick here. He has, he has written to us before.

Andy 27:38
Okay.

Larry 27:41
But I would not, as a general rule, the southern states are not places you’re going to want to live, as a general rule. That’s not, that’s not, not picking on the south. But the the high, the high fees, Louisiana charges, Alabama, for a community notification. It’s just very oppressive in the south. And that’s where they have the branding of your identification with sexual offender and the litigation that ensues around that. And, and they have so many Exclusion Zones of where you can live and work and the Job. Job restrictions where you can’t have these types of jobs. See, like in New Mexico, we don’t have we don’t have the most lax registration requirements in the whole nation. But you can live anywhere you want to. You can work anywhere you want to that will hire you. There’s no, there’s no prohibition in the registration statute that says they have all these things, you can’t work here and you can’t even drive an ice cream truck because you might snatch in a child while you’re selling them ice cream. Well, we don’t have any of that. You have no occupational departments here in terms of being registered. The occupation itself may debar you, but the law doesn’t prohibit you. So, so in terms of the contact information, since we’re not able to refer him to a particular state, we could refer him to the wiki page, which again, has a lot of restrictions for being in prison. And we truly understand that but perhaps someone could do some research for him. I’ve generally told him the South is not pretty. And I’ve generally told him that that, that we don’t encourage state shopping, but there are states where you would have better registration obligations. But if you got supervision for life, guess what, the registry is going to be a lesser part of your problems.

Andy 29:36
Yeah, probation is certainly going to be a bigger hindrance than just the registry. I mean, even like Georgia, so you may you know, maybe you just have to do your registration one time a year. If your convictions that old you may not have living restrictions, but you’re going to constantly get harassed by the Popo

Larry 29:52
What do you mean by harass? The police do not harass people.

Andy 29:56
Yeah, I know you know and to be to be fair Larry, I was scrolling through Reddit and I went by something. And there was a cop standing there was somebody riding a motorcycle. And they were, they were kind of hauling ass. But there was a cop in the road. So you think, man, they tagged me, but the cop was standing there and he goes, Hey, just wanted to warn you. Because if you’re on a motorcycle, and there’s an oil slick that runs for a mile up the road, and you’re riding in the center where the oil is, you’re gonna have a bad day. So here was a cop, don’t want to ever, like, bash them all the time. You know, I can play my little clip here. That’ll do just that. (Audio Clip: I got my rights to do what I want as a police officer.) So we can we, the cops do do a valuable service. And this was one that stepped out to keep someone from wrecking and having a really bad day while they’re on their motorcycle. But that’s what I mean by that harassing is constantly knocking on your door, hitting you with taillight out just being a pain in the ass.

Larry 30:47
Oh, I just I just looked up Jeff’s letter. I didn’t have the full thing in here. But what I can say to you, Jeff, is that since you are in state custody in Tennessee, if you’ve got supervision for life, you’re going to be severely restricted, you’re not going to be able to do a lot of state shopping, because you have to get permission to go to another state. And that state’s going to have to agree to supervise you. So therefore, you can shorten your list of states that where you might have connections and support systems that would allow you to transfer your Tennessee supervision. But you don’t have the other 49 states as options. You have wherever you have connections and resources that that might would be willing to sponsor you. And then you might be able to facilitate an interstate supervision compact supervision transfer.

Andy 31:35
And I guess then we are going to go cover this article briefly that is from the Star Tribune.

Larry 31:45
Wasn’t there one more question here? There’s one called G.

Andy 31:51
I missed loading it.

Larry 31:55
I’ll read it.

Andy 31:56
Please.

Larry 31:59
I can I think the reader can read but I can read this one. Cuz it’s, it’s typed and it’s mainly just for info. He says this might seem a strange question for SOs often writing regarding the legality of a law and the registry, but I have a unique situation. And anytime you say you have a unique situation, that is always going to gain my attention because everybody’s situation is unique to them. I have been down several years, and in my time, I’ve been productively working to become a writer. I have four complete novels, and I’m currently working on a fifth, I intend to try and publish them upon my release. This is a point of contention, I was told that you cannot publish while incarcerated in the feds for monetary gain. Is this true? There are many who publish and many prison publishing companies for inmates. Is there any way of putting my work out while incarcerated still? In eight years, I have no other choice. My question is obviously, I would not use my actual name. That would be a death sentence. And so the point is, can he publish? And I could not find the answer to this, but I know our FYP audience knows.

Andy 33:04
I have a suggestion, is it lifetimes? The publication by Will in Illinois? (Larry: Uh huh.) That would be a place to publish it is in the Lifetime’s magazine.

Larry 33:23
So well he wants to make a little money. (Andy: Oh, well, that part I don’t know about.) Yeah. He’s says that there’s a prohibition against publishing by the feds while you’re incarcerated for monetary gain? I did not find that on first Google search. But with our expansive audience someone knows if there is such a prohibition. And we can come back to this next week. But I wanted to get it out there for oour audience and for our research staff.

Andy 33:48
All right. Yeah. The article is up on the screen, too. All right. And so now we can go to this article that I jumped to earlier. says All right, this the Star Tribune case challenging constitutionality of the Minnesota PFR program can move forward, federal court to decide if state’s treatment system is constitutional. Now, why did you people put this in here? Like, what did you want to do with this?

Larry 34:17
Well, I wanted to try to give the people in Minnesota civil commitment, some hope. I was I was dejected, probably not as much as the people that are there when the federal judge had found it unconstitutional was overturned by the Eighth Circuit. But the attorneys didn’t give up and they’ve been they’ve been following everything they can imagine. And the Eighth Circuit has decided that they wanted to give another opportunity for these challengers to show and they cited an old case of the US Supreme Court Bell v. Wolfish. And the case is going to go back to the district Judge. And I think the quotes that I put in here, were useful. It says, “This decision gives the plaintiffs another opportunity to demonstrate that the program is not designed to treat and release people but is designed to confine them, which is what I’ve said the whole thing is about,” said Daniel Gustafson, the lead Attorney for the class of plaintiffs who sued the state, quote, “civil commitment has to be focused on rehabilitation and release, as what I’ve said about john Hinckley, when he was confined, that was the goal. If the goal is just to lock these people up forever, which is what appears from the history of the program, that would be punishment, it is not a proper purpose.” So this is going back to the trial judge. Now the trial judge has already telegraphed to us that he’s not too happy about this when he found it unconstitutional. So although the wheels of justice turn slowly, it sounds like the Eighth Circuit has had a change of heart in terms of this Minnesota civil commitment program. So stay tuned, folks.

Andy 36:00
And civil commitment is, is what let’s uh, let’s give a quick recap of what that is.

Larry 36:06
Well, let’s be particular, we’re talking about civil commitment of sexual offenders. And how it differs from regular civil commitment, which all states to my knowledge, have civil commitment. When you civilly commit a person and take their liberty away in normal circumstances, you’re doing it for the briefest period of time possible, with the full goal of, of readmitting that person to society. So everything that happens while they’re in custody, is merely to keep the community safe and to keep them safe, sometimes from themselves. And to get them back into society. John Hinckley shot five people in 1981. And matter of fact, we’re coming up on the 40th anniversary of that next month, it was March 30 1981. He was released, one of those five people was the president united states. But the goal of the guilty by reason of insanity verdict was not to see if we could just substitute prison and call it treatment. The goal was to administer Hinkley treatment and release him which ultimately occurred. Apparently, in some of the civil commitment regimens that are that are that are particularized for sexual offenders, which there’s 20 states to my knowledge, and the federal government has civilly commitment. There is a far lower release rate. And the goal doesn’t appear to release people. It appears to be to feed the bureaucracy that they’ve created, and to keep an input and a full employment program for those people. And they spend gobs of money. But no one ever seems to recover from an illness that’s only magically discovered after they serve their time.

Andy 37:43
Yes, they could initially, you have a 10-year 20-year sentence, they could initially start treating you and maybe you have maybe you finish your treatment in that period of time. But no, they identify that you need to have further treatment in your final five days. And they say that you’re they’re going to send you off to some further treatment facility. And they it’s a place you can never check out. You can check anytime you want. But you can never leave. That’s the Hotel California song but you’re never leaving that place.

Larry 38:12
Well, the odds are low in Minnesota. The odds are a lot greater in other states that have this particular type of civil commitment. People do get out. They get conditional release, and they get more liberties. But in Minnesota, it’s a very slim number of people that have been released. And the 8th circuit said, despite the fact that so few people got released, there was theoretically a process that would allow them to be released, therefore, it wasn’t unconstitutional. It’s not unconstitutional to civilly commit people. I mean, I’ve said that over and over again, it’s unconstitutional to do it in a way that provides deprives them of due process and deprives them of any meaningful review and deprives them of ever having Liberty again. But if you think they’re so ill to begin with, why don’t you, rather than prosecuting them criminally, why don’t you seek a civil commitment in the beginning? You have a hospital in your state? Why don’t you, in Virginia or in Minnesota, why don’t you seek their civil commitment? The answer is very obvious. You want to extract every bit of punishment you can and then you want to continue to punish them by putting them in a warehouse after they’ve paid their debt to society. That is what’s so sad and tragic about this.

Andy 39:21
Anything before we then move on over to the final section?

Larry 39:25
No, I think I’ve covered that but you folks up in Minnesota. This is this is a breath of new life into the case and are so happy to see and hear about it.

Andy 39:37
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 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 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.

Very good. And now we’re moving over to a discussion about the legislative process from something coming out of New Mexico. This is House Bill number 74. And you people put this in here the Senate, like I said New Mexico something about House Bill 74. That something about the final vote. And I guess I could tease it upfront about the way that the voting went about and trying to get into more discussions about this to try and give people some kind of framework on how maybe they can approach their legislature. And you as always there you have an agenda. And what is the reason that you’ve put this in here, but I really don’t see what purpose it serves. So what’s the what is House Bill 74? And why would we care?

Larry 41:10
We put it in because it is a proposal that would provide felons either would not be disenfranchised to begin with if they happen to receive a probated sentence, or they would be they would be refranchised immediately upon release. This proposal would provide that felons would only lose their right to vote for the period while they were in prison, but upon release, they would be eligible for immediate reinstatement. Unfortunately, the republicans chose to prevent this from happening. And they did a floor amendment when the bill was on final passage in the house

Andy 41:54
What is, tell me what is a floor amendment? Like what does the amendment, what does that do?

Larry 42:00
Well, as the proposal was originally drafted, it wouldn’t it had no carve outs. All felons were treated the same. So if were you were a PFR, or you robbed banks or whatever you did. If you’re released from New Mexico prison, then you would receive a paper saying that you are eligible to vote. And you would take that to your local voter registrar, which in most cases is the county clerk and you would you be able to vote. Well, the floor memo was offered on final passage, which it’s an effective parliamentary procedures used, but this board member provides that the sheriff will only be the person who can provide a PFR that documentation that they would normally get from the department corrections and that documentation would certify that they are in compliance with SORNA, the sex offender registration notification act, and the person can probably take this to the county clerk. And they will have a special document from the sheriff saying this person say complies with SORNA. And everybody else would just say the person has been released from custody, and that they’re eligible to vote. Now something tells me maybe I’m not the brightest person, but I’m not thinking that people would want to display their document from the sheriff’s What do you think?

Andy 43:21
Certainly, I’m trying to wrap my head around that they would get this extra piece of paper that says they’re in compliance with SORNA. And then they would have this extra piece to go to the clerk?

Larry 43:32
Well, they wouldn’t have the regular piece. The department corrections can’t give them that document. If they have a sexual offense that’s going to trigger registration obligation. The department corrections says, too bad. So sad, you’re out, go get this if you want to vote, go see the sheriff to get registered. And the sheriff will give you this piece of paper and it says that they’re in compliance with SORNA. But otherwise, the Department of Corrections would give it to you and say that you’re eligible to register.

Andy 44:00
Okay. And let’s let’s dig in deeper on what this amendment does for those who do not know. So what does this do for those people?

Larry 44:12
Well you want to get into the nuts and bolts of how a floor amendment works? (Andy: Uh huh.) because that’s okay. So a floor amendment, so Bill has been introduced. It has made it through the committee process. In this case, it was a House Bill, so it didn’t have to go to the Senate. It had to go through House committees. So it went through the house consumer Public Affairs Committee, do pass. It went through the House Judiciary Committee, do pass. Then it’s reported out to the floor for a vote. So an amendment is a parliamentary maneuver, and it’s very legitimate. And it’s it’s, I mean, it’s it can be legitimately used because in the committee process, sometimes you will legitimately overlook something that was that was significant was overlooked, not often but it does happen, but it’s more often is used For sinister reasons for you to impose your will, as a minority on what you don’t like. So, for example, in this case, it’s well known that the republicans are generally opposed to expanding the voter base to include additional felons. All you have to do is look at the citizen initiatives that were approved overwhelmingly in Florida, and how successful the governor Desantis and all the people in Florida have prevented most felons from voting because they litigated litigated, litigated and said that all obligations included fines and court costs and restitution and blah, blah, blah. So in this particular case, on House Bill 74, it was the Republican strategy was to force the Democratic Party to appear soft on sexual offenders. So they presented this amendment as a tool simply to assist in achieving that, they said that there’s no sinister motivation, we just want to help make sure that the offender is in compliance with SORNA. And they claimed it was about public safety. But their real agenda for doing this was they wanted to make it appear as though the Democrat Party was soft on sex offender. So, they made it impossible for the democrat party to vote against this for amendment because so you got this, you’re in floor debate, and you got this amendment. And it’s simply just to make sure that people that have a registration obligation to just make sure that they comply with that to enhance public safety. And if you’re a member of the Democratic Party, and you vote no on that, what’s going to happen in the next election cycle?

Andy 46:26
Now you have documentation that they voted in a certain way.

Larry 46:31
So that was their agenda.

Andy 46:38
Okay. And if the floor amendment gets adopted, did the floor amendment get adopted?

Larry 46:47
The Democrat Party was not willing to vote against the floor amendment, so it did get adopted.

Andy 46:52
Alright, and then to the Republican support the bill? The republicans added the amendment Ostensibly so they might support it more?

Larry 47:03
Yes, that was my point. We want to make sure that we have compliance with SORNA, but then I put the cheat sheet in because people don’t tend to trust me when I tell them these things. So I’ve got the voter tally, in the show notes, colored by party registration and a column that identifies the political affiliation. And despite the fact that leader, the Republican House leader, Rod Montoya sponsored the amendment, they still all in lockstep, voted no. They do not want, Apparently, they do not want former felons to vote. Now, I know you’re gonna say to me, why are you being so partisan? I’m not being partisan, and I’m merely talking about what happened. If you can’t identify what happened, then you can never do anything to rectify what happened. Here’s what happened, folks. The Republican Party did everything they could to wreck this felon reenfranchisement. I can’t change the history. This is what happened. And the votes there for you to look at and you can decide.

Andy 48:11
And I can’t help but even like, personally, the way that this is coming across cringe at this does sound like you’re being super partisan.

Larry 48:19
Not at all. Not not being partisan. I’m merely being factual. If the day comes that we can’t talk about what, who votes which way, then we probably should just stop having democratic government. Because I criticize the Democrat Party probably more than anybody that does anything, like what we do here. But I don’t have blind allegiance to the Democrat Party. I don’t have blind allegiance to anybody. I have blind allegiance to good public policy. And this was good public policy. And it will, will continue to be my belief that allowing people to vote after they pay their debt to society is a good public policy. And the fact of the matter is, the Republican Party of New Mexico did not agree. And they did not vote for it. I can’t change that you would have to ask them why they’re so vehemently and adamantly opposed to having people vote. I can’t speak for them.

Andy 49:21
Well, now what might be a decent time to talk about Rush? Why does that particular bent so vehemently oppose having everyone vote?

Larry 49:33
Well, they would say that it’s because of the integrity of the voter rolls. We need to have integrity of the voter rolls. But in terms of felons voting, they mistakenly believe that they’re going to have a lot of new Democrat voters. And that’s just simply not the case. And actually, I’m probably advocating against my own interest because probably most of these people are not going to vote for Democrats. But I believe that it helps the person to want to be a law-abiding citizen if they’re more able to participate in our system. Yeah, it’s another one of those things that the more you seclude and isolate a person, the more you can expect bad things. The more you include, and have people participate, I think you’re more likely to have a good outcome. I think a person is a better citizen that votes, particularly if they take the time to figure out a little bit about the issues they are voting on rather than just voting blindly allegiance?

Andy 50:33
Well, tell me tell me this real quick. Since we’re gonna now cover international politics, Australia has compulsory voting, I think that’s the right word. And they get like 95% participation, should we have something along those lines? Should we have 100% voter participation or close to it instead of we get 20 and 30%. And that’s for the national elections. For the off-year ones, we get dismal outcome.

Larry 50:55
I didn’t know that Australia did that. But I don’t believe in that. I don’t think he should require people to vote, I think people should want to do their civic duty. I think they should want to have good governance, and they should want to be informed about issues. And here we have a whole group of people who want to vote. And for some reason, there’s this concerted effort to prevent them from ever voting again. And in Florida in particular, I think Florida doesn’t want those people to ever rejoin the voter rolls.

Andy 51:25
And that goes way back to that original amendment was amendment four to the Florida constitution, that probably goes back to the 1800s would be a guess. I don’t know if… that probably was pre Civil War, early 1800s would be my guess without me doing any quick google searches. If anybody wants to do that for me in chat, then we can report the year that that happened. What happens next for this bill in New Mexico? Do you accept the amended version or do you have a different strategy?

Larry 51:54
Well, let’s be clear. I don’t like that amendment. And I hope we can remove it. However, I would not kill the bill because of the amendment because I’m not one of those that has to have it all or nothing. I would find it tragic that PFRs would have to go in and get their special document from the sheriff, that announces to the county clerk that they are PFR. But I would prefer them at least having the option of doing that versus not voting at all. And all the other people that would be reenfranchised saw. But I would hope that that it doesn’t come to that. But my strategy is to get the amendment removed in one of the two Senate Committees. It’ll have to go through two committees in the Senate. And I hope to try to get it removed. Although unlikely, I would like to find a republican senator who would propose striking the amendment. So what you would do is when it’s in committee, when it’s been debated, you would ideally you’d have a republican say I’m looking at that house floor amendment number one and I think we should strike that amendment. And that’s not likely. But that would be my preference. My next strategy would be to seek a member of the democrat party to make the motion to strike House floor amendment one. If I’m successful in finding a senator who will do that, then all the democrats on the committee will be politically exposed on the issue because the committee vote is likely to go right down party lines, all republicans will vote no on striking the amendment. And all democrats vote yes. Or at least enough to pass it because we have a fairly significant Democratic majority. So you can afford to allow a couple on the committee to vote no, but but you’re going to expose all of those people on the committee to strike them to backlash, and how this is going to be used against them. So So like I said, expect all the republicans to vote no, these votes are recorded. And that means that the Democrat Party will look weak on public safety.

Andy 53:49
Well that’s probably not a good way to get reelected isn’t it?

Larry 53:52
Not generally.

Andy 53:56
I heard you people talking about an identical bill that must pass both houses in a bicameral legislature. If the Democratic Party amends the House Bill, doesn’t that mean, the bill would have to go back over to the house for them to agree with it for concurrence?

Larry 54:11
Wow, you actually remembered that?

Andy 54:15
I can see how I would have but I had a little help in crafting these questions.

Larry 54:19
So Wow, that’s exactly what it means. The same identical bill has to pass both. So what would happen is that if we were able to strike House floor amendment one from House Bill 74, then you no longer have the same bill. So so when you strike the amendment, it passes in the senate with all Republican opposition, as I anticipate, and then it would, it would no longer be identical. So it would go back over to the other side of the rotunda for concurrence. And and, and so the first question always goes to the sponsor. What do you think about this bill, as admitted by the Senate, in this case, the house sponsor would be delighted that the bill got that amendment got removed, and would give a thumbs up. And that would mean that the Democratic majority in the House would be able to concur, and they likely would concur if it comes to that. But the only problem is they just got another recorded vote. You’ve got a recorded vote where the Democrat Party in the house agreed to, to a watered-down version of what had originally passed. And you’ve got 40 something members of the democratic party who have been soft on sex offenders, and they all become politically exposed again. So you’ve got the you’ve got the senate politically exposed, and you’ve got the house politically exposed all over the shenanigans from Rod Montoya.

Andy 55:48
Okay, God, that’s garbage. And I had a recent, where I listened to the Schoolhouse Rock thing and this whole thing of the bicameral like going back and forth. If there’s amendments, then they have to agree you can’t have it go without having the both parties agree. That definitely leads to me remembering like how that question would get asked, like I said, I had helped getting there. Oh, boy, do you have, let me let me ask you this question, it says, What about later down the bill where they limit the governor’s pardon powers? How do you think that’s going to go? That comes from from a person in chat from Raiders fan in chat?

Larry 56:31
Okay, what’s the question again?

Andy 56:33
What do you think about the, where they limit the governor’s pardon powers?

Larry 56:37
Well, I don’t think the governor is going to be too interested in that. So I think I think it’ll likely meet with a veto if it passes. (Andy: Oh, really?) Yeah. What governnor would want their executive powers weakened?

Andy 56:50
I totally get that part. It just then we end up down the discussion of why did Obama not veto blah, blah, blah, that I know that they get overturned in the recent defense budget thing with Trump got. He vetoed it, and then they turned right around. And and what’s what’s the word that I know that they overruled the veto? With this, then? If he vetoed, it, Would there wouldn’t be any support to to to try and push back against the veto? Like this is weird, of which the is your governor, on your team or not in your team?

Larry 57:25
Well, she pretends to be progressive. But but but it goes out, it goes beyond that. No governor is going to want their executive powers to be weakened. So as a general rule, anything that would weaken executive powers, the executive would veto that legislation. She’s made it clear on that there’s an attempt to weaken her Public Health Authority. And she has said, go ahead and send that to me, I will veto that. She would veto anything and as any other executive would that would weaken her powers. And she would say that it’s not about me, per se. It’s about the ability to govern the state in an emergency. And on this thing, pardons are something. If I were a governor, I don’t think I’d be cherishing. I would like more like the Georgia system has where they were they have a board that does it. But since the governor possesses those powers, I can’t see this governor or any governor wanting to give those powers up. So I would expect to it to meet with a veto. But overrides are unlikely in this state, because of the way our system works, they’re only in session for 60 days, in an odd number year. And they’re only in session for 30 days and an even numbered year. If they work, if you look at when most things pass, they most likely pass in the final week, both legislation passes in the final weeks. And most of most of the time, it passes within the final three days, which means the governor doesn’t even have to act on it till they’re out of session. So anything like this, this is controversial is weakening the parking power part and power of the governor. It’s not going to pass until the final day or two the session. She’s that they’re going to be out of session when she issues the veto. And they’re not going to be overriding because they won’t be there. And then when they come back in January, everybody’s facing that’s a member of the House when they come back in January to the next regular session. They’ve got a 30-day session, and they’ve got their own campaigns to worry about. And they’re not going to be worried about overriding the governor unless it was something draconian. So a veto is not likely to be challenged. It’s just very rare in the state that there’s a veto override because our system is not designed for that to happen.

Andy 59:34
Okay. And can you with your work around the different states, New Mexico would be considered a small state with a short legislative session. Is that fair?

Larry 59:45
Well, the majority of states have short sessions.

Andy 59:51
I know that they’re not full time but like I’m Georgia is similar in timeframe.

Larry 59:56
Yeah, like 40 days. Yeah. It’s very, very similar. They were 30, 60, 90 days, 120 days max except for the full time states, so it’s not…

Andy 1:00:07
This is all part of wrecking the train, I believe..

Larry 1:00:13
Well, in general, yes, this is a train I don’t want to wreck. this as a train I want to see make to the finish line. I’d like to see it making it to the finish line. And I’m gonna do everything I can to restore it to its original condition of how it was before it was hijacked. But I just want the listening audience to know that a lot of the people that you voted for did this to you. Okay.

Andy 1:00:40
I don’t I don’t know what else to say about that. I, I know that we have this conversation very, very, very much on the regular and I just don’t have any personal evidence to support or or go against I just accept that what you’re saying is true. I just have nothing.

Larry 1:00:54
You have plenty. You have ample evidence that the first step act was hijacked by Tom Cotton, you have all the evidence you would ever need.

Andy 1:01:09
no, I was I was talking about specifically you say that our people are right leaning generally. And I just I don’t have any experience that that’s the part I was getting. No, I got you on the first step act, I got you on, on where the party’s vote, generally very broad strokes, that red votes for more law enforcement type things that generally screws us. I totally get that. And I know that the left things like statute of limitations that the left is voting that screws us as far as a criminal justice issue in general, because 700 years later, someone can say, Hey, I feel bad about something that they did to me and you go prosecute someone way long after the event happened. You have no ability to defend yourself, I totally get that. I just don’t have any personal to say that these people are this persuasion.

Larry 1:01:55
Well, why don’t you put a nonscientific tool up and let and ask people their political leanings if they’re conservative, moderate or liberal. And I’ll tell you that 75% of our audience will check the conservative or more. That’s just the reality of what I’ve learned in all these years of advocacy. I can’t even believe you even question it after effort after all the encounters you’ve had with all the people that you’ve met. And I’m surprised that you read that you even are surprised. I mean, it’s a given.

Andy 1:02:24
I live in a very red state in a very red area of the state. So it’s not like I can go run around. And so the people in this area, how their how their leanings are because I would just this, this area is very, very red. So that’s not it’s not a fair, accurate way to look at it.

Larry 1:02:37
Well, I’m not talking about you area. I’m about to people you interact with in the work we do here. Our audience you’ve had, you’ve had them for a while, and you’ve had them for every state from Louisiana. And I don’t, can you can you cite to the most recent liberal that we’ve had that you’ve let chime in on the podcast.

Andy 1:02:53
I mean, I know of them in chat. I know of the handful that are there in chat. There are a number of them. Yeah, total total. All right, well, then let’s let’s close things out. So now that we went on a little bent about politics and whatnot, so send all the hate mail to crackpot at registry matters.co, which gets redirected to Larry. And then just to close things out, I want to make sure that we highlight those specifically that when you send us questions, if you get specific and say my case was this, and I would like to know what I should do here, that can’t be answered. So with that said, we received a question from Will and also similar question from Chuck says, Would it be accurate to say that the ruling in Tennessee would be successful to the point that PFRs could go back into court and get only the registry restrictions, obligations, etc, that were in place at the time of conviction or plea? I pled guilty on such a such date with this ruling mean that I could file a challenge with this as guiding case law and force the state to die on my registration obligations back that was in place in ‘02. And again, like I said, there was another question from somebody else, it was sort of vaguely similar, but provided a whole lot of details, and we can’t give legal advice. So Larry, what do you think about that question?

Larry 1:04:01
Well, the answer is no. Well, you cannot do that. Well, you could, but you would not win at this stage. Because the the case we talked about recently from Tennessee, it’s not final, nor is it precedential. Yet, because it’s it’s only the district court. And the odds are that the state’s going to find some way to appeal. But let’s just say that I’m wrong and that they do not appeal. And that they did they say yep, we got it wrong. And there’s a slim chance to take to do that. That doesn’t say you go back to the conditions you had in 2002. What these cases are telling us and what the what the legal landscape is showing is that there is some point when a registry becomes punitive. And there’s a point where you can peel off restrictions, so would they have to peel off everything that they’ve added since 2002 to you? I don’t know which year, which year would have been something that would have triggered that analysis. So they might could peel off some of the things. The more egregious things like in Michigan, it was primarily the proximity restrictions, and primarily the tiering of people without due process to 2006 and 2011 amendments. So we’ll there might be a whole lot of things that Tennessee added in those changes that they made year in year out, that would not have been enough. So there’s no court that says you have to put them back to the registration conditions that they had originally. So far, I’m not aware of any such decision. what they’ve said is you can’t apply certain things because this triggers it, where it where the analysis now shows that this is punitive. So what what a legislature in Tennessee would be likely to do would be say, how little can we peel back and still have a constitutional registry? That’s exactly what Michigan did. That’s exactly what Pennsylvania did. That’s probably what they would do. But it is too early. It’s too early yet because this this case needs to work its way through the court.

Andy 1:06:10
So in other words, if we were the Lone Ranger’s and we would have a silver bullet and we could just shoot the thing and the registry would go away. Is that what you just said?

Larry 1:06:21
Well, I said the opposite there. There’s no silver bullet to make the registry go away.

Andy 1:06:28
I just wanted to clarify, just to make sure. Is there anything else? Oh, let’s do our little tribute to your favorite now deceased radio show host. (Larry: We did that.) That way all the flags are flying at half-mast. Well, I thought we were gonna do like that. Was it? Is that all you wanted to say about Rush?

Larry 1:06:44
Yeah, unless you got something else to add. But yeah,

Andy 1:06:46
we did. I got nothing. I think he’s a terrible human being. That’s all I gotta say.

Larry 1:06:52
You shouldn’t say…

Andy 1:06:52
let me ask you this.

Larry 1:06:54
They’re gonna burn out transmission tower down.

Andy 1:06:57
do you think that he created the modern day like talk show format? Or would that go to somebody like Larry King before him? Because I think that he’s kind of like the genesis of that whole kind of radio program.

Larry 1:07:12
He certainly had the largest accumulation of radio stations. But no, he was not the first. He was not the first by any means. There were people who had nationally broadcast programs before he came along, but he was able to perfect it to a level that no one has ever seen before and probably no one will after.

Andy 1:07:31
All right. Um, I guess we could say you can find the shownotes everyone and like I get this question a lot. So if you’ve made it this far, if you want to know how to get into discord, go to either the website where you’ll find a discord link in the show notes. That’s over at registrymatters.co and look for any of the show notes and you will find a link to get into the discord. If you want to listen to the show live. You can leave a voicemail at 747-227-4477 you can email us at registrymatterscast@gmail.com. Support the show on patreon at patreon.com/registrymatters. Larry, you are the best and the most informed person I don’t have anything else and if that’s it, then I bid you a good night. Thanks, sir.

Larry 1:08:18
Good night.

Andy 1:08:19
Take care. Bye bye.

You’ve been listening to FYP.
Registry Matters Podcast is a production of FYP Education.

Transcript of RM166: GA Legislature Debating Extending Registration Explained

Posted on February 22, 2021 by andy

Listen to RM166: GA Legislature Debating Extending Registration Explained

Andy 00:00
registry matters as 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 transmitted across the internet. This is Episode 166 of registry matters layer we have hundreds and chat tonight. It’s a beautiful Saturday night. How are you?

Larry 00:26
Fantastic. It is beautiful here to this afternoon. It’s not even evening yet, but it’s approaching 60 or maybe even past 60 degrees here.

Andy 00:35
Man not like I have heard I just saw the news quote go by the people after this crazy weather in Texas. They’re getting $10,000 electric bills. I didn’t dig into it at all. And I don’t know if it’s true or not. But I was like, how do you get a $10,000? electric bill?

Larry 00:50
Especially 10 minutes after the storm passes?

Andy 00:53
Right? Good grief is so like is that maybe you’re maybe the meter froze or something and messed up and there’s some mix up in the building that can’t be giving people $10,000 bills? Especially I haven’t heard that one for a week. Okay. I haven’t heard that. What? That’s nuts. Anywho. What do we have going on tonight? before but before you say that, make sure that you’d like and subscribe and share the podcast over on YouTube. All right, go ahead.

Larry 01:19
Right, yes, we’re getting hundreds of views on YouTube. Now. Have you noticed that we’re this week is just off the charts?

Andy 01:26
Yes, pretty stellar.

Larry 01:28
So we’ve got, we’ve got a couple of insider questions. And we’ve got some questions from the community at large. And we have a legislative analysis to do on a piece of legislation from Georgia. And a brief couple of articles to just pontificate about towards the end of the program.

Andy 01:48
Wow, that’s a lot of stuff. It’s a whole mountain of content. And we got a we got like a stopwatch, I need to like start a little timer, like 60 minutes, because we have a we got a lot to do in a short time to get there. I guess we should begin, we can start with a little bit of a message the the attorney from the Tennessee case that we talked about last week reached out and he wanted to provide just a teeny little bit of feedback on your covered you people’s coverage of the of your analysis last week and says looking at your q&a, I think you covered everything very well. The only point I would disagree with is whether the plaintiffs asked for removal from the registry. And the only points I could add would be about the scope of the injunctive relief. But since those points are all still the subject of litigation, I couldn’t comment on them at this point. Once the judge rules on these points, perhaps I can comment on them, it would be really great if we could get him on as a guest in the future. I really wanted to highlight that the that he thinks that we covered everything with I really should say you you covered everything really spot on. And it was a nice letter to receive from him to edify you of your accuracy and completeness.

Larry 02:53
Well, I appreciate that. And we are very much intending on having one or both of those attorneys on when they feel comfortable. They don’t want to violate the spirit of their local rules. They’re in the Middle District of Tennessee, and I can understand that. So they they want to do their litigating in the courtroom.

Andy 03:11
Is that I mean, is that the short answer? I was just gonna ask you why is that such a big deal about them coming on to talk about it, while they’re litigating it, like tip their hand like poker, like, hey, here are my cards?

Larry 03:22
Well, it’s a lot of old school thinking of not of not, you don’t want to say anything adverse about the judge or the opponent or anything like that. It’s like, all the litigation should be done in the courtroom. And it’s just old school like, like at the time when attorneys couldn’t advertise it. Of course, that was a great day for established attorneys in that era, because if you couldn’t advertise you couldn’t be established. So it was great for the old timers.

Andy 03:46
Okay. Let’s move over to the first question that somebody wrote in and says registry matters, guys. I have a couple of reader questions. First, in states where elements of the registry have been found as punishment, ex post facto means it can’t be applied to other crimes. But what about federal crimes? Can a state punish me if that state did not give me due process? I know for civil registration, they can. But aren’t the Fed and state considered separate sovereigns for criminal punishment? Shouldn’t ex post facto elements of registries also not apply to those without state charges? That’s a pretty unique question. I think

Larry 04:25
it was indeed. And he’s one of our subscribers to the transcripts service. And I would say that I am not real comfortable with the way he’s using the term punishment because registration. Registration in and of itself is not punishment. Right? What happens is the registration schemes evolve over time, to where they stack on so many requirements that they become punitive. Upon additional analysis as more and more litigation as we talked about it Tennessee last week, the same federal court, the same circuit had upheld Tennessee registry as being non punitive until they kept stacking. But to drill into his question, but I think he’s asking is if he has a federal conviction. If, for example, what just happened in Tennessee, declaring that, that that registration scheme couldn’t be applied, ex post facto, it would also apply to a federal conviction, because remember, there is no federal registry. When you go to when you go in Tennessee to register, you’ll be registering, not with a federal agency. So the federal law requires you to comply with registration, but it’s within the state. So if the state cannot register you because of a highest ruling from the highest tribunal in the state, or from a federal court, then there would be no, there would be nothing the feds could do to punish you for not complying. But now remember, this recent decision from Tennessee only applies to john doe’s one and two at this point. Sure, there will probably be additional litigation, there’ll probably be a class action, like there has been in other states. But right now, those are the only two eligible for relief. And we still don’t know if there’s going to be an appeal yet. So don’t jump too soon to say but but if it works, to result in a class action, and if the same outcome happen, then those of you with federal convictions that are older would be would be granted the same relief, there would not be an obligation to register at that point. But they’ll go back and they’ll create a do a lesson version of the registry that go back into Tennessee that go back and look at what they had when it was last upheld and cut shawl. And they would look at that as a starting point. And then I would ask themselves, how much more they can stack on and hopefully have it be declared non punitive. But they’re they’re not just going to give up and say we we realized there are ways and we’re not gonna have a registry anymore. They’re not going to do that.

Andy 07:02
Can you? Let’s I want to ask you a couple specific things. And it says Can I state punishment that that state did not did not give me due process? Any any idea what that is about?

Larry 07:13
Well, I think I think I think what he’s asking is that he’s considered the registry itself to be punishment. And since he didn’t have any particular process, his federal conviction did not afford him at a separate process. What he’s wanting to know is can they require him to register subject to that punishment? And the answer is yes, until the court says no. Right now, the court hasn’t said no. For anybody other than john doe’s one and two in the case of Tennessee. Now he has taught in Tennessee. He’s He’s in California, if I remember right.

Andy 07:51
Do you want me to read the the second part of the question, I know you wrote to defer the next week. Did you want me to read it? Just to put it on the radar?

Larry 07:57
I don’t. I don’t believe I’m sufficiently versed on that. Yeah, to answer the second part, but we are going to come back to it.

Andy 08:05
Okay, well, do we read it or skip?

Larry 08:07
Let’s just skip it. But yes, we know that you have a second question here. And we’re gonna we’re gonna come back to it next next episode.

Andy 08:12
groovy. And then if you missed

Larry 08:15
it, you missed it. You missed the final part. Thanks, guys. Great podcast.

Andy 08:20
Oh, yes. Okay. Thanks, guys, great podcasts and fyp, etc, etc. Yes. And so the next one comes from the narosa legal corner who we like how do I politely How do I put this most succinctly like partner with friends with and to provide a way to answer questions easily, I guess instead of having to write it out and limited publication space and so forth. It says I have been an avid reader and subscriber since I first heard about the publication two plus years ago. And this month’s issue october november 2020. The legal corner discussed interstate transfers for those under supervision by the state. My question is very similar, but as it applies to federal military inmates. MSR which is minimum supervised release released I believe, for military is different from the FBI, the Federal Bureau of Prisons and other federally sentence intervals individuals to MSR which follows the completion of their adjudicated sins. In the military MSR is seen as a mandatory release date and the courts have ruled numerous times that it is a form of parole. The question and issue surrounds the acceptance of the US probation office in our cases, many inmates have been told that the officer responsible for the region they provided denied the request. The denial reasons have ranged from the obvious of the housing not meeting the requirements of the code to close to a school to close to a park other similar reasons. The reason that is most troubling and it’s not really understandable is no or not enough ties in the local community, ie friends, family, etc. How is such a reason permissible? what options are available to those given this reason, thanks in advance for your support and insights you can provide regarding this issue and I’m going to add fyp that’s Yeah, how do you if you don’t? Like perhaps you get locked up in a place where you’re not from, and they want to release you to Timbuktu, Egypt and you don’t know anybody there and they go, Well, sorry, you don’t have any ties or family here. So we’re not letting you go.

Larry 10:15
Well, fyp education has minimal understanding of all the intricacies of the military. But I believe that’s meant for supervised released. But But I’m not absolutely certain. It’s a period after they serve their sentence that they have to serve on supervision. And the answer is, yes, it’s permissible. But they, their their theory, is it? I mean, maybe you were stationed in Guam before your offense, and then you did your time in Fort Leavenworth, Fort Leavenworth. And then you want to go to a place that you don’t have any ties to their argument is that your odds of success go up exponentially if you have a support structure. So if they just dump you out in a place where you’d like to be and let you live there, and you have minimal ties, the the chances are greater of failure. So So the answer is yes, it’s permissible. It’s done all the time. And, and to my knowledge, I do not know of any successful challenges on that. But like I say, fyp has minimal, experienced and military. So therefore, I can’t actually answer the second part about what options are available given given this reason. Others it’s to talk to him to an attorney who does practice with the Uniform Code of Military What is it ucmj and, and people who are on who are on this MSR and how it’s handled, and if they are aware of anything that I have not on earth in my first quick glance, and I apologize for this being so late, it got filed incorrectly on my desk. And I just found it a couple of days ago. And I had attended to answer it a long time ago. But but it just it just bubbled up today.

Andy 12:03
Not to there’s got to be so few people that would be in this condition. It’s makes it very esoteric, as far as a person trying to practice law in this respect. It’s in DUI cases, ambulance chasers, there’s they’re a dime a dozen, because it’s a very, you know, there’s a lot of supply and demand to handle. But this is a very limited number, I bet you there’s a very few number of people that are in this condition.

Larry 12:29
Well, my intent was the reason why I got misfiled was that we had an attorney on the board who actually had been in the military at one time. And I was going to send it to him, and then it never got sent. So therefore, I don’t have the feedback I was looking for, but but I will attempt to actually, his name had escaped me. But now his name has come back to me and I know who it was, but but I don’t I don’t feel any qualification other than to say, yes, they can restrict where you do your supervision. And the courts have been very lenient with them doing that.

Andy 13:04
Very well. And just as a side note, Deputy HMF IC has arrived, Larry.

Larry 13:09
Well, hello there. Glad you could join us.

Andy 13:12
All right, a couple more questions to go. Since I’ve been listening to you people since the beginning of the podcast, you keep on talking about the so called probable cause hearings that are required for those on Interstate compacts, supervision. I’ve been violated twice, and never got one of these. Suppose at hearings. They’ve just taken me before a judge. And I’ve been asked if I wanted to waive extradition. Each time the public pretender on duty in the courtroom has advised me to waive extradition. Now that you all have explained this difference in scope of an extradition hearing versus a probable cause hearing. I wish I had understood that, then I think I could have avoided being sent back. Thank you so much. I still don’t know how to get one of these hearings, since nobody has ever mentioned until I heard it on the REM podcast anyways. Cheers and fyp.

Larry 13:57
Well, this is our question buried in there.

Andy 13:59
I don’t think there’s really a question other than I guess just thanking us for providing some level of clarity to having the different kinds of hearings, whether you have the probable cause, and whatnot. So maybe there’s no question unless you want to provide a teeny little bit of comment on it.

Larry 14:15
Well, I do appreciate the the submission. I think that what he’s saying is if this should happen again, since I’ve never heard of it, how would I go about getting one? And the answer is we don’t know. The closest thing I’ve recommended that we do here in my state is recommend that the attorneys file a notice of a demand for a probable cause hearing in the court closest to where the person is taken into custody. So if they were to take the person in custody in Albuquerque, bernalillo County, you would file it in the court of general subject matter jurisdiction, but to be a district court, and you’d file it under a miscellaneous case number because the person doesn’t have a state charge here. You’d file that notice and serve it on the corrections department their counsel and say you’re entitled this. But whether that’ll trigger a hearing or not, I can’t vouch for that. And then I don’t know what the processes are in other states. But I know one thing, that if you’re armed with the information, when you meet with a public defender of the courtroom, right, if they’re, if you’re lucky enough to where they happen to have one assigned when you’re taking on this extradition hearing, with that information of knowing that you’re entitled to a probable cause here, and you can tell that public defender I’ve already waived extradition, in my application to be in this state. This is not an extradition, this is a retaking, and I want my retaking probable cause hearing. And that’s what I would like you to know, for the quarter, as I’m exercising my right to have a probable cause here. And now I will not waive extradition, because this is not an extradition, this is not an extradition.

Andy 15:53
I’m pretty sure what I have traveled out of state, that there’s something in there that I’ve waived the right to extradition, just by getting the travel permit. Correct. And which I’m like, I don’t know what the hell I’m signing, like, hey, I want to travel. So I’m going to sign almost whatever they tell me like here, you want my firstborn here have my firstborn. So then there’s this thing in there that says I have waived the right to extradition, which sounds. Again, I think I had to explain it when we talked about this, I understand waiving the right to remain silent, that type of thing, like I am accepting that I am not going to remain silent and answer your questions. And so I’m waiving the right to extradition, I don’t understand why I would waive that, right. When I’m not even trying to get an extradition, I’m trying to get a retaking probable cause hearing.

Larry 16:39
But say you’ve already done it. When you both cross state lines on Interstate supervision, you’ve already waived the extradition. That’s one of the forms in the packet of stuff that you will find voluminous forms. And that’s one of them. So extradition is already off the table. The only time extradition would come into place would be if you have scouted, if you were if you were sentenced in Georgia, and they transferred you to Colorado, and you skipped out from Colorado, and they discovered you in Hawaii, that would be an extradition because you didn’t have permission to be there. So then the only issue would be are you the identity of the person who sent the fugitive warrant that have scouted from supervision. But if you’re in Colorado, there’s no fugitive you’re on a fugitive status. That’s what extradition that process is to is to recover a fugitive. When you’re in Colorado, under interstate compact, you’re entitled to a process that determines if you have if you’ve committed an infraction of a severe severity that would merit you having to be transported to Georgia. Because in Georgia, you wouldn’t have access to the Colorado witnesses that might be helpful to you. So that’s why you’re the Supreme Court said in 73, that you have the right to this preliminary determination close to where the violations occurred. And so extradition is not what you need to be talking about to your public defender, you need to say I have already waived extradition as a condition for being here. I bought my probable cause hearing.

Andy 18:08
I do understand what you are saying, sir. All right, then, let’s move over to this other question. says I’m serving a 20 year sentence for a crime, that there was no evidence whatsoever. I self reported the crime and hoped to get treatment. My victim nice, does not want me to be in precent prison, and it has asked that I be released and that the charges be dismissed. How is it that they can keep me in prison for a crime when there was absolutely no evidence? This sounds like a lot of wordplay that we we have quote unquote, a victim just because they don’t want the victim doesn’t want them to go to prison. But anyway, please continue, sir.

Larry 18:54
Well, I love it when they say there was no evidence. And there there was there was quite a bit of evidence. But it gives me a chance to talk about the the real, the real key of what I want to talk about it, which is a Latin term called actus. Reyes, there has to be, there has to be independent evidence of the crime that will support the plea. So he did a plea, he would have gone out and self confessed and then gone to trial. So he did a plate. So first of all, we have his self report of disclosure, he would have made a statement to the police. So that is evidence I would have to put us they write it up, it has all words and they would head and put his name on it. So so that that is the evidence. That’s the first batch of evidence. Then they have his plea that he did in court. Where were the that there would have been an establishment of the basis for the police. So the the court, the judge would have asked the prosecution to to set forth the basis for the plea and that’s where they have to have some Subject Matter jurisdiction, and they have to have evidence of a crime independent. Can you imagine how great the country could be if we could just go corchorus confessions, without independent verification of a crime? I mean, that would be a great system, it’d be a lot more people convicted if we had a system that way. So there has to be independent. So if you go and say, I embezzled a whole bunch of money from such and such a business, they certainly can approach the business and say, do you have any unaccounted for funds. But if the business says, No, we cannot identify any unaccounted for funds, you don’t have a crime, because you don’t have the actus Reyes, but you have not got the independent verification of the crime. So the guy would be able to walk out the door go free, even though there was a confession, because there’s no independent corroboration of the crime. So I’m guessing when he self reported that he told the identity of the nice, and they went to the nice, and they asked the nice in a nice confirmed that what had been reported in the confession was consistent with with her recollection. So that would also constitute evidence. We’ve got his confession, we’ve got we’ve got her recollection. And we have his pleat. And assuming that Denise was of an age to where that? Well, I guess it’d be a crime because of the incest regardless of the age, but I’m assuming that that was a crime within the borders of the subject matter jurisdiction of the court. So that would probably would have been proper for to accept. So I guess the question I would ask was, I hear this a lot, the truth will set you free, get it.

Andy 21:40
And so he admitted that I have heard Larry, please. And I know that you’re not a lawyer. And this is not legal advice, blah, blah, blah. But I’ve heard that if you would go do that. Maybe go talk to a counselor, and you do everything up to admitting guilt and don’t reveal the name of the person. That that keeps them in a position where they don’t have to report it to anybody officially, and then you could then go get treatment. So you could just say, I have done these things with a person not saying nice, like whomever this person is. But if you leave that off the table, that it doesn’t engage them to be required to do some kind of reporting.

Larry 22:16
I don’t know that that’s true. I think the admission of criminal conduct triggers the duty to report. At the time they did the report, it would be vague enough to where they wouldn’t have an identity of anyone, but they would, they would certainly put you under surveillance. If they deem that report credible, they would try to figure out who that person might might have been. And you may have given us enough detail that they can figure it out. If you said Well, I go to the I go to the local high school and hang out at the football field every Friday night. And I victimized one of the players or cheerleaders or whatever you want to pick, they might be able to figure out who that was. By you’ve just narrowed down the whole student body from about 2200 down to the members of the football team or the cheerleading squad. So all of a sudden, you’ve gone from 2200 down to a couple dozen. Yeah, so

Andy 23:05
I met while I was gone. He told me that that what he went and told somebody and he learned that had he not revealed that holds that the name of the person that it could have been very much left off the table and could have done treatment, whatever, without ever getting involved in the whole criminal justice system.

Larry 23:21
Well, I would not be bold enough to say that because I would say that the reporting would be based on admission of criminal conduct. The more specific you get, the more the more you’re going to put yourself within a zone of prosecution. But what what a person would need to disclose this, they have urges to do something. urges are not reportable. If you haven’t done it yet. As far as I know, the fact that you have that you have particular urges when you say I’d like to look at, I’d like to look at rage porn. Well, you can have, you can have those urges. Like, I’d like to I’d like to have all the abundance in the vault at the local bank.

Andy 23:55
Of course, of course, of course.

Larry 23:57
I have an urge to have all that in my pocket. But until I formulate a plan to transfer that money from the bank vault to my pocket, there’s nothing illegal about having that urge. So I believe you can get treatment, as long as you do not admit that you have committed crime. Wouldn’t it be great if you could just simply commit a crime and want to get treatment now? Yeah, well, that would that would absolve you of the criminality? I’d be wouldn’t everybody all of a sudden want treatment after they’d committed a crime if that was the way it worked?

Andy 24:26
I mean, I get I guess, in this particular instance, when this person would go admit the crime without saying nice, maybe they would put him in lockup and try and go investigate and start querying wives and other people that might be in the circle maybe.

Larry 24:44
Well, yeah, he he was when you identify, hey, clearly identified every every detail of it, and signed a confession but but if you if you just simply say that I’ve had urges for inappropriate conduct that I’d like to get some help. The therapist is going to probably say, Don’t tell me too much, because I’ll have to report it a good therapist that I want to, I want to help you, some therapist is going to say, some are gonna say, tell me more, because they’re anxious to report you because they have kids and grandkids and blah, blah, blah, and they’re gonna want to get you off the streets as quickly as they possibly can.

Andy 25:20
Okay, and then I guess we will cover the final one before we hit the feature event. Sounds good. All right. When I was on probation in New Mexico, they imposed a restriction on romantic relationships cue romantic music here. I was violated for an undisclosed relationship. I fought back in one, but I’m curious if they can actually limit romantic relationships, I wouldn’t because of the vagueness of their wording of the policy, not on the merits of the policy.

Larry 25:49
So Well, I think we’re gonna have a guest on that one to join in just a couple of minutes. But the answer is, can they restrict undisclosed relationships? Yes, you’re still being punished for a crime that you committed. And they have very, very broad powers of how they can limit your your behavior, your movements, your travel, your your, your personal friendships? I mean, they have they have such broad powers of what they can, what they can do. What happened in this particular case, was they had a policy that was so vague that nobody understood it, including the people who actually tried to administer the policy, but in terms of actually can can they can they prohibit you from a romantic? Think about that? Can you think of any sexual offense where that where that where it would clearly be appropriate to limit a person’s access to to additional potential victims, I mean, can’t change

Andy 26:49
their mind? My conditions would say that it could not be a romantic relationship with someone that had children under the age of 18. So hey, if they don’t have children at the age of 18, like Have at it have fun?

Larry 27:04
Well, that but but again, but but their posture is going to be that they want to review the relationship before you get into it, because we’re going to save you from having trouble later. So if you’re going to be in a romantic relationship, let us check the person out. And that would that would be their posture. And so but I’d like to hear from from our guests in terms of terms of specifics of what the policy said at the time, and if they’ve made any changes to that policy. So let’s bring him on here.

Andy 27:32
All right. Well, joining us now is Andreas and this would be Larry’s legislative, and we had a whole big discussion about what words we would use. And we’ve resolved to just say, Larry’s legislative assistant. So on today’s Welcome to the registry matters podcast. How are you tonight?

Unknown Speaker 27:48
Great. It’s wonderful to be on here with you guys. Cool.

Andy 27:52
Let me go at it.

Larry 27:54
So understand, understand the basics of the question. And I’m wondering, when when this happened to you, how did they become aware of the relationship? And then what was the cascading effect when they became aware of it? So I had them come aware of it.

Unknown Speaker 28:11
They became aware of it partially because they found a text message from my phone from somebody that I refer to as my significant other. And then they said, Oh, well, you have a significant other. And that pretty much triggered an investigation where I was incarcerated for a period of time while they did their investigation. So the biggest issue that they had with it was that I didn’t disclose it. But then the other part of it is, is that my significant other did have a child under the age of 18. But that’s a separate condition. On top of that, and the either of those two conditions, outline the reporting process, how you go about doing it, if I said to him, uh, you know, for my one probation officer might say, it’s okay for you to have friends with people who have children under the age of 18, that you cannot be unsupervised with children under the age of 18. And then another officer can come in and say, Well, I don’t want you to have be friends with anybody who has children under the age of 18. Because of kind of like, the lack of specificity, and the application of either it kind of just created this whole thing where it was like, well, let’s throw him in jail. And we’ll figure it out in court.

Larry 29:31
Okay, so I’m assuming you had contact with a probation officer and they looked at your phone, it was either an office visit or a field visit and they saw your phone. And they saw that that text message and then at that point, did you go into custody that that very day, write down the date that they handcuff you up and take you to jail right there?

Unknown Speaker 29:51
Yes, they did that same. less than five minutes later, there was no well don’t have any contact with this person. Or don’t do this, they didn’t even know at the time based on that text message that she even had a a daughter. At that point, they just said, well, you’re going to jail today.

Larry 30:12
Okay, now I want to I want to educate our audience because New Mexico is unique. In terms of this, most states require sub level event of involvement on a probation violation of the court in this state. They they grant, the probation officer arrested detain authority, so all they have to do is to issue an arrest of holder. So in a matter of moments, he was in custody. So they take they take you to jail, and then they put you on the PV calendar, which I’m all too familiar with. And the first time it came up, it got probably continued. But anyway, you finally get to a probation hearing. And and you don’t agree with it. And you end up winning this what what was what was the, what was the build up to this to this victory? Because you said, I don’t agree with you with what you’re doing to be because I don’t feel like violate this policy. Your attorney said, You’re, you’re full of crap. You did violate it. How did you? How did you manage to win this with your attorney, saying that you’re wrong? What happened after after you got your return? And you had you had to have the discussion? And attorney says, Well, just go ahead, admit to the violation, they’ll let you out. Right?

Unknown Speaker 31:19
Um, yeah. So what happened is New Mexico’s I’m sure is that you know, but I’m not sure too many listeners know, what happens is they put you on the PV calendar. But the PV calendar isn’t within a week or two. They specifically delay it for a whole month, because you are to be have your hearing heard in front of an initial judge, who is basically assigned for that period of time to listen to probation violations. So in other words, it’s almost like a meat factory. You’re all lined up inside the courtroom with another, you know, 3020 people in housed in and out. And first hearing that I had was with not my sentencing judge is a judge who has no idea who I am. All he did was look at my piece of paper that says what I’m alleged up having done. And to be frank, the the violation report that they gave us none too flattering, of course, because that’s their job is to write a report supports me violating and being sent to prison. Oh, we actually asked for a continuation. One, we wanted to get conditions of release first, which is not very common when violation matters or hearing, waiting to be heard. We did first was we said, Alright, well, am I going to get out of jail today? Can we you know, admit to the violation and get time served? The answer was no, the DA wanted to go for the full revocation. So it’s like, okay, what’s the second step? So what we did is I had talked to the attorney right then and there and said, well, let’s get a continuation. And let’s get my sentencing judge was heard, you know, this case before that point, we said, okay, we went to the judge, and we said to him, Hey, is it all right? Can we get back on the calendar, wait for his sentencing judge to hear this, and he says, I have no issue with it, if she wants to take it. That’s a whole other month on top of that. Then finally, you are two months in at this point, you finally get the judge to grant me conditions of release. And then on top of that, we have two more hearings. So this whole thing stretches out a whole six months.

Larry 33:23
Wow, that’s a long time for a PV and what was the issue that you were arguing with your attorney about? Because your attorney wanted you to bet. So what what what what did you say? What did you tell your attorney that cuz sometimes attorneys are not correct. So what what was your attorney telling you versus what you were telling the attorney,

Unknown Speaker 33:40
my attorney was telling me was pretty much that there is no precedent for any of this. And on top of that, your that they had me dead to rights, which in terms of, you know, terms of just like the concept of failing to disclose the lack of lack of specificity about who is disclosed to whom, as far as the therapist and the probation officer, because in two separate parts of the actual behavioral contract, specify that you’re supposed to disclose to your treatment provider, one thing, and then another section, you have to disclose to your officer another thing? Oh, there is no disclosure clause anywhere with to whom or when or how a romantic relationship. But that point, that’s what I brought to my attorney, I said to him, Hey, there is nothing here that says with whom, to who, to what, and when am I going to disclose that I have a romantic relationship? And on top of that, I said, well, what’s the definition of romantic relationship? Anyways?

Larry 34:39
I bet he loves that.

Unknown Speaker 34:43
Very angry with me. He’s not very happy when I brought that up to him and I’m sure you may know who he is. But the thing is, he’s he was pretty high up there. They put the the big the big dog on my case. And he was very angry and says, you know, you could go sit there and wait in jail while we figured this out. I said no, I think this is gonna work. So was actually what is the big reason why the violation was not sustained in the eyes of my sentencing judge? Because there’s no you went

Larry 35:11
you went, you went, you went had a hearing? And And And how long did the hearing last? It was like a half day hearing, right?

Unknown Speaker 35:18
That’s it lasted altogether, probably about five hours between two days.

Larry 35:23
And you had you had this hearing, edited of them of the state color and other witnesses, they were not able to come up with clarity that satisfy the judge. Do I have that right? is correct. So the judge did not sustain the violation. So did you were you were you? Were you already out of jail. So they just basically, they put they repeated you to supervision?

Unknown Speaker 35:46
Correct. They had already been on supervision at that point. And they had put me on an ankle monitor. And they just said, unofficially, you know, my officers said, Well, I wasn’t on an ankle monitor before then. But then they just had me with an ankle monitor for the remainder of my supervision.

Larry 36:01
Now, well, that would have been the retaliation for for taking them to trial. So you should have admitted in their eyes. And so therefore, since you didn’t take responsibility, you need additional supervision, that would have been their justification.

Unknown Speaker 36:13
That is correct. But you know, it’s just kind of one of those things where, you know, it’s it, the big question is, is exactly how is it going to play out in court and public defender, you know, he’s better equipped to answer the probability of it going the wrong way. And this is, no, this was a on a lodestar, you know, risk calculation, the fee was pretty high for him.

Larry 36:37
So well, you know, the same people you dealt with, we had a case, a decade ago. And we couldn’t, we couldn’t get them to budge, because they wanted the guy to go to prison so bad, and he ultimately ended up going to prison, but not of that particular violation. But but they, we stretched out and stretched out, because we didn’t want to go to prison, didn’t think he would do very well in prison. And he he, they said, Well, if he would just admit to the violation, this will all be over. And it made me so irritated. I said, Well, of course, anybody would be all over if they just did it as a violation. But your violation is bogus. So why should they admit to it? Well, of course, when you’re sitting in jail, you’re being punished anyway, you’re sitting in jail on PV, very few people get out on conditions of release, you were extremely lucky to get out.

Unknown Speaker 37:23
So I was extremely lucky. Um, you know, I had already been in contact with them regarding some questions I had about probation prior to that, you know, in some ways that can be mis interpreted as retaliation, you know, by into that whole retaliation thing. It’s just that, you know, they the officers have dealt with people who are more in more cases, the rule rather than the exception, and the judge recognized. For my particular case, I was the exception, not the rule in terms of a danger to society and all of those factors, you know, I had a slave, I had a job lined up when I got out, you know, I was very, very lucky, blessed all of the above. This thinks that, no, it’s really it. I’ve said this to people before, it’s really hard to fight. When you have something hanging over your head, it’s a lot easier for other people to, you know, tell people, I’ll just take the plea, just take the plea. It’s just so difficult. And I’m just very lucky that I got on the other end of that.

Larry 38:26
Well, and that that was the point of having here. But when you when you’re facing these people, when they when they impose something on you, oftentimes, it’s a matter of first impression, you took something to a judge who took the time to hear testimony. And at the end of the testimony, I said, Gee, I can’t even agree with this, because it’s not clear to me. And I’ve heard four different versions from four different people for probation. And, and so they can, they can impose things on you that you might could win if you challenge them. And you may not fare too well. When you challenge him, you may end up getting a dose of a lot bigger dose of punishment than what you would have gotten it’s a whole crapshoot. It really is. So and if you have anything else, otherwise, we want to move on.

Andy 39:13
So I don’t I appreciate thank you on today’s that was really awesome. Maybe we can gain later.

Unknown Speaker 39:19
Oh, absolutely. I look forward to getting attacked by pirate ships on the high seas.

Andy 39:25
Fantastic.

Unknown Speaker 39:26
I really appreciate you. So you submitted that question.

Unknown Speaker 39:31
Oh, of course, it’s, uh, you know, I think that I have my answer now, based on a lot of what you guys have already said earlier. And I just really appreciate the hard work that both of you guys do.

Andy 39:42
Appreciate it. So thanks very much.

Larry 39:43
Thank you. Well, thank you for thank you for what you’re doing for the cause.

Andy 39:48
Ready to be a part of registry matters, get linked set registry matters.co. If you need to be all discreet about it, contact them by email registry matters. cast@gmail.com you could call or text a ransom message to 74722744771. A 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 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. Larry, it’s time for a drumroll so we can cover this shenanigans going on in Georgia. This is a House Bill 347. It showed up on on the radar this weekend. We’ve been talking about the legislative process recently, we wanted to kind of dig into it a little bit more in this one showed up in Georgia be a great opportunity to continue. Like I said, it’s House Bill 347. It’s recently introduced in Georgia. And are you ready?

Larry 41:07
I think so I’ve I’ve looked at the bill. And it’s short. And it’s actually easy to analyze. So let’s do let’s go forward and see see what we can do. All

Andy 41:15
right. Like I said that there was a lot of discussion about it came up on the narwhal affiliates. As the first one. The first question I want to ask you is what what is the nozzle affiliates list?

Larry 41:25
Well, that would be a listserv of all the people who either have a recognized affiliate agreement with with narwhal, or they have an advocacy or what has put us all the versions, they have an advocate, they have these levels, and I’m on the board and I can’t really cite all three of them. But but it’s it’s it’s people who do who do advocacy on behalf of docile. And

Andy 41:49
somewhat it’s a private list and disclosure. What’s like a non disclosure agreement gets signed to be on there as well.

Larry 41:56
Yes. And and it’s it’s theoretically, to help one another, with situations as they arise. So situation at Georgia has just popped up. The question would go out, hey, this is what we’re dealing with. Do you have any insight on this? And that that’s why it popped up on the affiliates list. And actually, our communications director caught it first. And then it started generating a lot of feedback once she posted it.

Andy 42:23
Alright, and then. So what does this proposal proposal do? And like, why was it introduced?

Larry 42:30
Well, like I say, this one didn’t require an extensive analysis, because it’s really just changing one word. And the existing law, the proposal would require a 10 year minimum period for any person before they could follow removal petition. And under current Georgia law, some are immediately eligible for removal once their sentence is completed. For example, a person who’s disabled under I forget all the definitions, they have a disability, then that level ones under Georgia risk based system to remember folks, risk basis, not the same thing as tiers. This is a risk based system that Georgia does. So don’t come in here and say, Well, I’m a tier one. And this state, will we’re not talking about a Tier or we’re talking about a level one. And now everyone needs to realize I’m not connected with any of the sponsors. So my response about why they’re doing this a speculative but I don’t have to speculate much because the sponsor said stated the motivation and and a newspaper article, he stated, The benefit, quote, The benefit of this bill is that it will help sex offenders stay on the registry longer. And

Andy 43:39
all the things that I want to do in my life now that I am off probation is to stay on the registry longer. Larry, I really would like to stay on longer. Can you help me?

Larry 43:49
Well, well, what he means is, is it would help us keep people in the registry, if you follow the rest of this quote, he says now they’re able to get off after three years if they’re level one. So if you’re if you’re taking the length of time up to 10 years, it’s clear what the motivation is. So I don’t have to speculate, but normally, I wouldn’t speculate, but I’m just going to use his words. He stated why he wants this. He wants people to have to rebate on the registry for at least 10 years before they can file their petition.

Andy 44:20
Okay. Yeah, I would like they would like to help people stay on the registry for longer I read that and I’m just like, you asshat Ah, okay, uh, and then does it matter what the party affiliation is with the with the sponsors of this bill?

Larry 44:40
I hate to do that, as you know, I hate casting Team Red versus Team Blue. But keep in mind that Georgia’s heavily Republican, so it should not surprise anyone that this would be a republican sponsored piece of legislation. And in fact, to my knowledge, all the Georgia elected officials are Republicans. I’m not talking about people who serve in the US Congress because they do have. They do have representatives from Georgia, they elected to represent them in the nation’s capitol. And they have to recently like the senators, but all the officials in Georgia, the governor, Lieutenant Governor, Secretary of State, all the people who run statewide, they’re all Georgia and liked it. from Georgia statewide as Republicans, there are no democratic statewide elected officials. The Senate is 34 republicans and 22 Democrats. So that’s a substantial margin. And then the house is 133 103 republicans and only 77 Democrats. So if you could do math, you can figure out there’s nothing the democrats can do to stop it. And there’s nothing the democrats could do to pass it by themselves. So this is this is, unfortunately, this is a republican show, because of the way the state of Georgia is is the way that party alignments are right now.

Andy 45:57
I was having a conversation with someone earlier. And just briefly, politics came I’m like, well, Georgia went blue in January, which like, I mean, is true ish, the two senators, but the entire, like you were just describing the internal structure that the state level representation is very heavily read.

Larry 46:15
Absolutely. And like I say, every statewide office is is controlled by the republicans and the margins, and the House and the Senate are substantial. And it’s been that way, mostly for about the last 20 years before that it was just the other way around the there was substantial democratic control in Georgia. But that flipped in the early 2000s. Roy Barnes with less governor of the Democratic Party. And I think the legislature changed shortly after Barnes got elected, he managed to alienate everybody.

Andy 46:49
And in the past, we have talked about the like, you can’t pick that that you want to speak to your, your, your ideal party person to represent you, but you have to work with what you’ve got. And can we dig into that a little bit, and you and your little pointy headedness, I’d like to hear what you suggest as a strategy.

Larry 47:10
I didn’t realize that my head was at that point, it was my head point. Oh, dude,

Andy 47:13
seriously, like when you go through doors, it’s almost like we’re looking at a Saturday Night Live episode, and you’re one of the coneheads you probably have no idea what the senate live is,

Larry 47:22
well, if if I were tasked with this and restore Georgia had a whole bunch of money, I would begin with attempting to find out what’s behind the legislation, you can rest assured that the sponsors, the primary sponsor, and the co sponsors, they didn’t wake up in the light and say, I want pfrs to sell the registry longer. The motivation is driven by either an advocacy group, or something happened in that particular sponsors district and something that that we don’t know. And when I say advocacy, it could be a victims group, or it could be the law enforcement apparatus itself. And it’s of the utmost importance that we would know which or if it were, if it’s both. For example, you’ll sell what could have been released from registration at subsequently committed new offense in this legislators district. And the first call that that that that he would have made in this case, it was him, he would have called the sheriff and said, this person was registered. And then they re-offended come to find out they weren’t on the registry. Sheriff. What happened? Why did you let him go? And the sheriff would have said, well, because he petition for removal, he wouldn’t say he did what? Because he wouldn’t have even had any idea that there was a petition process so that he would have either done the research himself or he’d had this legislative team there in Georgia, he would have had whatever resources they would provide to a lawmaker dig this out. And they told him Well, after X amount of time these people can file and this person was the level one and he got off. And, and that’s so the sheriff would have said I didn’t have any choice. My hands were tied. And at that point, the sponsor would have said, well, gee, Mr. researcher, tell me about the surrounding states. What do they do in Alabama? Well, they can’t get off in Alabama, what about in Florida, but they can’t get off in Florida? What about in North Carolina, but they can’t get off in North Carolina until they’ve been on at least 10 years. And he had to say, nine, let me see if I got this straight. So all of our bordering states, they either can’t get off at all, or they have to be on at least 10 years, and we let people fall immediately. Something ought to be done about that. And that’s how this would have come about in all likelihood.

Unknown Speaker 49:34
Ah,

Andy 49:36
yeah, I just, again, I go back to that. Let me phrase it this way. When I went to court to have my probation terminated, the judge stood there or sat there and said, the previous governor, Nathan Deal I think it was he said that he was about like, second chances. And here we have someone that has been following the rules. Let’s move forward and give the person like they have earned the opportunity to move on. And here you have these two legislators that are proposing legislation of like, Hey, we would like to keep you on there for longer just because we may it makes us feel good. And I’m, I’m really bothered by that it wasn’t because someone violated being a level one and went back and re offended. It wasn’t for any other reasons, it seems other than this is something of I guess the term would be feel good legislation.

Larry 50:24
But say, we don’t know that that’s what we asked me, What I would do that would be the first thing I would do is to try to figure out what’s driving this, I need to know that I can be far more effective, but I know what’s behind it. So I’m going to do my best to find out what’s driving this, this this legislation. And it could very well be that the law enforcement apparatus jumped on, it could be that there’s been a bit of a rear fence. And the sheriff said, Well, you know, one thing I tell you, I’ve never been a fan of this law that allows them to get off like that. And if you could do something about it, I’d be mighty grateful to you if you could, and all of a sudden, he’s got law enforcement support. And the victims are always going to be in support of keeping people on the registry longer, you don’t even have to breathe a second breath to know that they’re automatically so all of a sudden, you’ve got if there’s if there’s been a real offense by someone, you’ve got potentially the victims advocates, the the the person who had the horrible thing happened by a person who had been released from the registry, and you’ve got the law enforcement apparatus itself, all for it. And so that, that that could be that could be a real problem, in terms of fighting it, but I need to know that so I can tell you about I can charge you a whole bunch of money, and I’m not gonna be able to help you. Or I can charge you a whole bunch of money and I think I can help you but I’ve got to start by finding out why this is being proposed.

Andy 51:46
Um, but why would law enforcement and be in behind it, I thought they were understaffed, overworked, underpaid, all that silliness.

Larry 51:54
Well, that is the general myth that they they’d like to portray. But the reason our law enforcement itself might be behind it is tied to funding, in addition to the SE GA, like most states runs on this hybrid model of registration, meaning that the the local law enforcement, primarily sheriff’s are tasked with doing the actual registration and tracking, and the state operates the website. And so so the law enforcement apparatus itself has funding at stake. So you take, for example, Fulton, Cornell, which I think is the largest population in Georgia, those sheriffs need to go to their county commissioners every year and say, I need X amount of money. And the large counties have segmented units where they do sex offender registration tracking, and they have a budget that’s line item dealt for that. And they would say we’re tracking 14 120 offenders, well is easier to justify funding for 1400 20. Then if you’re down to 980, that takes several that takes several full time equivalents all for the justify justified staff level. So there’s there’s potential funding and tied to it. And then there’s federal funding from the SMART Office, which is still a sex offender monitoring, apprehension registration and tracking office, which is a component of the DOJ. There’s money available for registration, tracking and monitoring from the Fed, you know, from the government that people claim that they hate so much, that there’s there’s federal funding available as well. So that would be a one of many reasons. It didn’t just the hybrid model makes it politically politically popular. A Sheriff can say and I’ll tell you one thing, one of my priorities as your Sheriff is I’m going to put a lot of emphasis on tracking these pf ARS and making sure they follow the rules. And that is a very popular stance with voters.

Andy 53:43
Yeah, I definitely like a sheriff Gary long in Georgia about the putting the signs up at Halloween. Like thanks, Sharon, for keeping us safe. That was all over it sounds good page,

Unknown Speaker 53:53
though. That was the butts count a case to the parcels involved in

Andy 53:57
its bit but if you think is being driven by every offense of some sort, and law enforcement, FRS supporting it, then how do you like if someone actually does the deed after they’re off? Like that? doesn’t even seem like there’s a there’s a way to try and get in there and do anything about it. What do you do?

Larry 54:15
Well, I would be if Georgia hardened me, for example, I would be more restricted because I don’t have the relationships I would have but but you your best strategy on a case like that being that Georgia sessions, I believe, are 40 days, you’re going to want to run you’re going to run a stalling strategy as best you can. as I’ve stated many times before, we’re in the killing business were seldom in the passing business. And this is a prime example of what I mean by wearing the killing business. I don’t think that most people out there that that live in within the boundaries of Georgia would be excited if they’d been leveled or if they have the hope of being level that they would want this three year. He had it wrong. I don’t believe there’s a three year rate Wait, but I don’t think they would want to have to wait 10 years when the current law doesn’t require them that so what you’d want to do is you would want to try to figure out who the key people are, they can make the machine run a little bit slower. And a few days can make a big difference when 40 days are counting down, and something has to pass both sides of the rotunda, an identical bill. And if there’s any changes made, see, sometimes you get you get something you can’t stop, and it has to pass the House, if it’s a house bill in the case of this, and it’s going to have to go over to the Senate side of the rotunda. It’s going to pass the Senate, if you can pass it on men, but on the Senate side, then guess what is the long run identical bill, and it has to go back to the house, it has to go back while the time clock may kill you. So the senate gets disabled, we passed it by golly. And we made it even tougher than what it was when it came over here from the House of Representatives. And the house gets it back. And their first choice is what can they accept the amendments, which is called concurrence. And they usually would, but it has to do with pfrs. As we saw with the with the international Megan’s Law, when the when the when the passport marking was added in the Senate, on to what was a house bill, they probably would accept it. But even if they do, it takes time. But if you can somehow stop the concurrence from happening, but it goes back to the originating chamber, then they have to appoint a conference committee. And they have to see if they can get an agreement between the representatives of the two chambers and they. So you’ll you’ll appoint the leadership will appoint an equal number from each chamber. And they’ll come up with an agreement. And then the only vote on that is to accept that that agree, but you don’t get to change it, you can debate it all you want to but you don’t get to change it. This was a conference report, though the report of the conferees is either accepted or rejected. All that kind of stuff takes time. So so I would get into the parliamentary business, if I were in Georgia, try to figure out how to wreck the train. Because wrecking the train is the best strategy. Because you’re not going to get people to vote no on this, you’re really not, the Democratic Party is not going to vote no, because they are going to realize that this will be used against them in the next election cycle. So you’re going to have a hard time mustering a lot of democratic opposition, the only democratic opposition you’re going to get would be from, from areas where it is such a safe, democratic seat, that the carpet feels that they don’t have anything to be worried about, because they can’t be primary dealt, you know, they have the love with the community. But even if it if it’s not even going to flip parties, you could be knocked out in a primary because your primary opponent could come in and say, and my opponent voted to protect sex offenders and keep them invisible to you people. And if you’re like me, I’ll make sure they have to register.

Andy 57:52
And speaking of wrecking trains, I know that I asked you this not too long ago, but I don’t remember the answer. There’s something called crossover day in Georgia. And I thought my question to you was do all most how many states have that? And I want to say your answer was no, but I don’t know.

Larry 58:07
They don’t all have it. And that’s another thing if you if you can in a state that has said if you can prevent crossover, that is a that is an asset, but it isn’t necessarily, it isn’t necessarily going to kill it. If you say well wait a minute, it doesn’t cross over. So House Bill 347, may not cross over. So you, you do all the right things and you keep it from crossing over. All you have to do is find a piece of legislation that has crossed over, that people want to have passed, and you offer this as an amendment. And the person who doesn’t want their legislation has crossed over to die, they’ll often accept this as an amendment. And that’s something that I had a hard time getting Texas voices to understand when what they were doing the small town giving the small towns the same authority as the larger cities, you know, the humbrol cities and and and they were very effective at preventing it from crossing over. But then it was it was placed in as an amendment on another piece of legislation which they wanted to see passed, which dealt with how people under supervision, their travel restrictions, because they had these goofy rules that that they couldn’t drive on the bus direct route to where they were going because they might cross a path of something that was an exclusion zone. And they wanted that to pass. So they ended up putting it on something self crossover won’t save y’all together. But it it’s it’s a part of a viable strategy that that would be in your theater of options that you would use.

Andy 59:36
Okay, um, and going back a couple steps if we if if we can’t get the build to be killed with relationships and few days here and there, what other options would what how what else could be done? What else would you recommend? Should other states communicate with Georgia lawmakers maybe

Larry 59:56
I can’t see how that would be a bit of a assistance of other states do that, because that’s exactly what we play on to the sponsors hands. He would say, in committee hearing, as I’ve gotten dozens, has gotten dozens of phone calls from other states that I’ve confirmed what Legislative Counsel told me that would be something similar to the to the people who do the research for lawmakers. It’s like that confirms what legislative councils told me that we’re the softest state in the region, and perhaps in the nation, where we allow people to petition right away. And and that would not that would not be a viable strategy that I can think of that that that you would use to have people call from other states, I can’t see how that would be helpful.

Andy 1:00:39
And if would you think then, since it’s such a heavily republican Lee controlled legislative body, then what other suggestions would you have with arguments that would resonate with those people?

Larry 1:00:53
Well, that would be that would be all you’ve got. And we don’t get to pick who the citizens give us for lawmakers. So if I were doing that, which I’ve occasionally meant successful dealing with Republicans, you know, they they tell their fiscal responsibility. So one of the most compelling strategies, unless they course flip on this, as you would argue that level ones have been thoroughly vetted by Georgia’s risk assessment process. And that forcing a minimum tenure will bloat the registries, which is an unfunded mandate on local governments, you remind them that the counties are actually paying the officers time, and they’re having to hire up more and more deputies. And, and they generally love that term unfunded mandate. So use that to your advantage, you got to talk to them in language, they understand it, remind them that you agree with them on this, it’s not nothing sarcastic. Give us I know that you’ve been big against unfunded mandates. And these people were about efficiency. And I’m a big believer in governmental efficiency. And these people have been thoroughly vetted, they’ve been risk assessed through a rigorous process and forcing them to wait 10 years, it’s gonna blow the registers, particularly the urban areas, and then these law enforcement agencies are dealing with with with with higher crime rates are not going to have the resources to deal with this. And it’s going to be an unfunded mandate, because they’re gonna have to employ more people and tax their citizens more heavily, so that they can track all these offenders that pose very little risk, that would be a strategy that I would use. And then if if, if I’m not getting traction with that one, I would try the the diminishing the earnings potential, you know, that they’re, they’re about taxing, and, and the ability to pay taxes. And it is not even a disputed fact that people with felony convictions, and particularly those on the registry, have diminished ability to pay taxes, because they’re so underemployed. And I’d say these people, if we get them off the registry, they still have a felony conviction that will haunt them for their life, but they won’t have so many exclusions, they can actually work and they won’t be a tax consumer to burden on this state. And we want these people paying taxes and supporting the vital services. And I would try that. And and and then finally, if nothing else gains that attraction. I would argue that, that I would argue that a bloated registry dilutes the available resources, because there’s so many extra monster track that have been vetted and pose very little threat to the community no more than the general population at large. And that that can result in the community being less safe, which is not in anyone’s interested on know how committed you are to the public safety. And this is going to be contrary to that. I mean, that that would be the type of strategies that I would use, I don’t think I’d have a lot of phone calls coming in from other states.

Andy 1:03:38
Can we go back to the one argue that being on the registry diminishes a person’s earning potential, I may be worded differently to say that they would be they would be less of a drain as in, they’re not going to be trying to claim food stamps and housing benefits, even if whether they qualify for them or not. But all of those kind of social welfare programs that they are so hell bent on removing that if they earn over X amount of dollars, and they don’t need them and don’t qualify for them. So wouldn’t we want them to make as much money as possible? because republicans also seem to be very hell bent against taxes to, oh,

Larry 1:04:13
that’s a good point. You don’t want them consuming services that if we, if we force people to either be unemployed, or minimally employed, and predict versus Georgia has such a low minimum wage, they have not raised their state minimum wage because the feds has been stuck at 725 since 2009. And you you would have people that would be eligible for full time employed in Georgia that would still be eligible for a plethora of services. And, and you would make that argument. That’s a good one that should resonate with conservatives. And those are the type of arguments I would make if if I if I can’t derail it. That’s what I’m going to argue with with the people that I would be dealing with in Georgia.

Andy 1:04:52
I’m going to throw something to you sort of out of left field. Someone chat just said it says in my humble opinion, neither party cares. They will vote to make things harder. To which I replied, I said, I think that short sighted some of them are forced to vote a certain way by the population, but many don’t support it behind the scenes.

Larry 1:05:08
That would be correct. He is he is correct in a political sense, they, they don’t care because it’s risky to care. What people lose sight of is these people. The sex offender registry is just one of hundreds of things they deal with FICO. Look at, I think Brandon and Georgia put out how many bills are already pending, and it’s in the hundreds. And nobody can be an expert in all these things. And particularly at a part time legislature, where you have very few resources to help you, you’re basically just a citizen. And contrary to what so many people the horrible opinion that have most of these people, they have areas that they care deeply about, that they want to change policy for the better. And you can’t do any of that if you’re voted out of office. So the political reality is that if you stand up for this hated population, you’re not likely to survive the next round of elections. And that means that all the things you care about are no longer within your purview of being able to change or improve. And that’s the that’s the reality of the situation. Until we change the people’s hatred. We’re not going to have these people reflect public opinion. And the public opinion, if you if you went out took a poll to Georgia right now you ask people, do you think folks should be eligible to delta registry in such a short time? I doubt you’d find a whole lot of yeses?

Andy 1:06:27
You would definitely find everyone saying no. That’s, I would also say that if you worded that question a different way, saying should someone have to do some low level offense? Do they have to stay on the registry? like asking them the question, should they? Or should they stay on the registry for life? You may find different answers based on how those questions get worried. And we got to move on. We’re running low on time. We’ve been at this for almost like 30 minutes as it is. Is there anything else you want to want to cover on this one before we we knock it out of the park?

Larry 1:06:56
I think I’ve done the best I can.

Andy 1:06:59
Outstanding, which is which is really quite fantastic. Larry, um, there was a comment while we were going through chat of like, what are your credentials? How is it that you know so much are you like, the professor of law at some prestigious college, I was like, hey, see, and I and I don’t mean this in like a really diminished. I was like, he’s just a dude. He’s like, Yeah, but I’m just a dude, too. I was like, No, you don’t really understand. I’m like, he’s just, you just know your shit. That’s really kind of what it comes down to.

Larry 1:07:25
doing this for a very long time.

Andy 1:07:29
Yeah, I know. Like, since since law was invented back in the Greek, Roman times, whatever. It was way back when I did forget to play this. This. This came in on my personal side. And so it’s a it’s sort of a general question. But this is from Chris.

Unknown Speaker 1:07:45
My question for you is, how does it feel? After you’ve been off probation now for a couple of months? Does it feel surreal? Or just what are your thoughts and feelings on this, as always enjoy the program, thank you very much, and fyp.

Andy 1:08:01
And I just, it took maybe two months or so for me to like, kind of like set it and figure out what’s going on. But like, no one comes and visits me anymore, Larry, twice a month, I don’t have any bills to pay. And what took me a little while long to realize is they can’t come search my stuff without any sort of extra muscle as far as like a search warrant or anything like that. I can kind of come and go as I please, I can move out of this not move out of state, I can travel out of the state with asking for permission. So it’s pretty fantabulous on those fronts.

Larry 1:08:35
And you can actually move out of the state, you just have to check in with new people, but you can move out of state anytime you want to. That’s true.

Andy 1:08:40
Yeah. And I don’t have to ask for permission. Like they can’t stop me from moving. Maybe they would then say you can’t live here or there perhaps if they have living restrictions in that other state. But yeah, I can just pack my crap and go somewhere else. It’s pretty neat. Thank you for that question, Chris. You’re good, dude. I’ll catch up with you soon. We are running short on time. Are there any of these articles that you wanted to cover in particular?

Larry 1:09:04
Oh, no, I think we should cut it off and recognize our patrons, our new patrons on our existing patrons and tell people how to contact us so

Andy 1:09:13
Yep. Okay, so for patrons, Christopher increased to support of the podcast by three fold. I need to get like an applause thing on my little button pusher thing that decided to fail me a minute ago. But thank you very much to Christopher. And then we also had two new patrons this week, a john and a Don and wow, that’s quite sad. I didn’t pay attention to that they rhymed. And Don is a good friend of mine. And I very much appreciate that. All the patrons that support us and to the new ones this week. Thank you so very much. Anything to add before we shut shut the whole thing down?

Larry 1:09:45
So So Chris went from from 70? No, from 1400 bots to

Andy 1:09:53
14 plus 14, what’s at 42.

Larry 1:09:57
So he’s, he’s at 4200 a month. Now.

Andy 1:09:59
That’s That’s absolutely right. That’s funny my retirement plan.

Larry 1:10:03
So absolutely, well, the only thing I have to add is we’re getting closer, we’ve got our fyp education site up, and we’re making the final touches on it. And hopefully we’re gonna forget to have our 501 c three in the, in the coming weeks.

Andy 1:10:19
That would be really cool. And what is the objective there? What are we really trying to do?

Larry 1:10:25
We’re trying to get the donor community that would be more receptive to supporting us to give more money. And that will translate into more services like right now we’re, we’re sending out a few dozen transcripts weekly. I see that growing quite exponentially once more people find out that we’re doing it. And I see that a model similar to what narshall has where that we can reduce the cost even further, and maybe even down to zero for people who are indigent. And, but but you know, the cost doesn’t go away just because you don’t charge so that that would be one avenue that where people would be able to justify doing something that’s actually having a charitable purpose and and information is what people are lacking. And the more we can disseminate information, the better.

Andy 1:11:14
All right, well, go over to the website at registry matters.co. To find show notes and places to contact us and reach us. voicemail, you can dial 747-227-4477 Larry’s getting lonely, no voicemail messages. So send those in there. registry matters cast@gmail.com if you want to send me hate mail, and of course, all of our listeners are very important to us. But the patrons help support the show. And that is patreon.com slash registry matters. It’s the same name over on Twitter, and you can find us over on YouTube. And I would say like and subscribe and share on YouTube and in your favorite podcast app and so forth and so on and so on. Larry, with that I bid you adieu and thank you to everyone in chat that joined us this evening. And I hope everyone has a great rest of their weekend. Take care of their

Larry 1:12:01
Thanks. Good night, everyone.

Unknown Speaker 1:12:04
You’ve been listening to f Y p

Transcript of RM165: Huge Win In Tennessee Explained

Posted on February 15, 2021 by andy

Listen to Transcript of RM165: Huge Win In Tennessee Explained

Andy 00:00
registry matters as 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 165 of registry matters. Good evening, Happy Saturday to you, Larry, how are things over in the land of enchantment? Is that what it is?

Larry 00:28
That’s what it is, then it is just fine. Just fine. Today it approach 60 degrees. But tomorrow a higher highs going to be the 20th of the lowest supposed to be around nine.

Andy 00:41
Since we’re about to start the registry matters weather forecast program. Did you see the weather in Texas earlier in the week? That was like it was 25 below the normal temperature? I don’t know what I think it was it was in the teens or something like that. But the average temperature across the state was 25 or 30 degrees below normal.

Larry 00:56
It’s insane to hear ideas. So it’s like global warming. It’s what it is.

Andy 01:01
I don’t don’t let can we not go down that path? That’s so complicated. Global warming or climate change and all that. Yes, it? Yes. But everyone then uses that tripled, like who was it that brought a snowball into the Senate chamber saying global warming my tushy here’s a snowball. So as in one snow event makes global warming false. That is correct. We’re gonna get a lot of hate mail. I know it’s coming. Send it to crackpot at registry matters.co. And Larry will be the one that gets it. And he will respond to every message that comes in.

Larry 01:39
Absolutely.

Andy 01:42
What do we have this evening? Mr. Layer?

Larry 01:46
We have several questions. I think they’re all from inside prison facilities. And we have a deep dive on a case from the state of Tennessee. A very important case.

Andy 02:01
Important and good news or bad news. You want to tease it up front, or do you want to just like leave it dumped up dumb? We’ll talk about it later.

Larry 02:08
It’s overall good news from Tennessee. Okay,

Andy 02:12
super awesome. I guess then I can start running the questions. Are you ready for me to start running questions?

Larry 02:20
Let’s do it.

Andy 02:22
Cool. This one comes it says DS home mme of nossal. I’m looking for information on which states it’s best do to wait to I can’t read people’s handwriting anymore, post prison or even live after having to register. This will help me and my family to figure out if staying in Oregon is best overall or moving to another state would be mo betta. That’s my editorial position on it. Thank you for your time on this matter. And God bless and stay safe and healthy. Seems that we cover this question a lot, Larry, on which state because you know we are posting publishing a specific list on go to this state, say these keywords, do their secret handshake, and you will be okay moving to that state.

Larry 03:07
Oh, the reason why I put this in here is because it does come up frequently. But I would like to reiterate to people, when you’re leaving prison, you’re probably going to have a supervision period, very few states just let you disappear. So going from state to state is not going to be so easy for you, if you have a period of supervision, you’re going to have to move that supervision through the interstate compact for adult offender supervision, which is a complicated process. And the state that you’d like to go to, don’t take it personally. But that state does not want you. And therefore

Andy 03:47
they don’t want or are we people in general,

Larry 03:49
as I said, Don’t take it personally, but they do not want you. Therefore, therefore you’re going to have a lot of hoops to jump through to transfer your supervision you may find yourself in that state that you’re that you have that supervision period until you’re done. When you’re finished and conclude that supervision you can indeed leave. But I think I would be very careful about leaving Oregon because they are actually making progress in terms of making their registration better. They’ve got an effective group of advocates very small but very effective. And they’ve they’ve they’ve been transitioning toward a risk based model which some people like a lot. They’re using the static nine nine as the basis for for how they determine the risk level. But there would be some benefits. There are some benefits which I can or cannot articulate all of them. But if if the risk if you come up level they’re set at 99. The registration is not as onerous in terms of what what restraints and what obligations are imposed on you. So Oregon is moving in the right direction. So you may be trapped there for a while and be you might not want to move depending on depending on what your other options would be because you may not have options, all 50 states, you may have a connection in Florida, you may say, Well, my options are Oregon and Florida. Well, that would be a no brainer. I would stay in Oregon.

Andy 05:08
I am gonna say this mostly from anecdotal that when we cover stories about the nastiness of the registry, we frequently talk about a Texas or Louisiana or southern southeastern kind of states, and we never talk about. And I say never like I know it’s not never but it’s pretty much never, we never talked about any of the states up in the northeast corner. And we we talked about how crappy California is like in certain respects, but the northwest side doesn’t really ever come up as being a crappy place to be.

Larry 05:44
Well, that’s what I was saying that Oregon is moving in the right direction. And it’s not going to be a panacea. But if I were having to live with one or the other of any southeastern state, Oregon, all things being equal, I would stay in Oregon, I wouldn’t worry about the fact that you might live in a state that doesn’t have any income tax like Florida, I know that’s a fixation for a lot of people not to pay taxes. I thought but you, you you trade an awful lot if you’re required to register, what what Florida imposes on you versus what Oregon imposes on you.

Andy 06:19
And one other point I’d like to add is, I bet you Oregon would rate on the really high as far as pretty factor would go if you were to rate them. It’s It’s a gorgeous state. I’ve never been only seeing pictures, but it would be gorgeous.

Larry 06:33
Well, it does have it has a little bit of everything to offer. I mean, you you name it to the terrain and Oregon you can you can pick what what you find attractive. So you like mountains. I’ve got that. I feel like this seaside. They’ve got that?

Andy 06:48
Yep. Yep. Do you know the hose line is amazing to be out there. If you want to do

Larry 06:55
if you like if you like barren desert, they’ve got some of that. Well, it’s not really desert but they have they have pretty much anything you want in the way of climate. It’s available.

Andy 07:04
Did you say anything about a removal process up that way?

Larry 07:08
I did not. I don’t know anything about a removal process in Oregon. Okay, so

Andy 07:14
all right. Well, then let’s move over to question quote number three because we dropped question number two, but I just left it the way it was. So this is the second question but listed as question number three. I’m writing with the hope that you might be able to answer a question of mine as a registered so incarcerated. With I think it says within the federal system, I understand you are unable to help with most issues. But I hope you can help me here. I’m curious if you believe that Perl will ever return to the feds? If so has narwhal ever advocated for it? Furthermore, do you believe that msos with new definitions under USP Johnson Hobbs robbery act regulation and 44 b one dot two clarifying crimes of violence, Nevada, which apply to sex offenders say forcible sexual offense will ever be able to be eligible for the first step back benefits. Will we ever be able to attend federal camps despite most of us being first time offenders and low camp custody points? Or will we always be neglected based solely on public safety factors put on us due to bias against our offenses? Wow, this is a lot of stuff. any answers you might have will be greatly appreciated. I do not expect a straight reply. But if you could answer me in your legal column, it would be a godson Thank you so very much. That’s a lot. That’s a pretty detailed question with the sighting of the US first Johnson Hobson, whatever all that is, please say What’s going on

Larry 08:35
here? Well, on that one, I’m going to have to pass on us. I don’t I don’t know that material well enough to comment. So I can I can. I can focus on what I do know, do I think parole will ever return to the federal system ever is a long time. I don’t think it’s going to be easy to return parole to the federal system. It was it was repealed in 84, with a sentencing reform act of 1984. And the theory was and the way it was sold in 84. And that was in the Reagan administration. For those who don’t remember that the theory was that we had the United States criminal code, and we had too much variation in what was imposed for the same crime. So you had a person in Alabama who would be convicted of which in those days bank robbery was the big federal crime, the sex, the all the stuff related to sex had not come to be yet because we didn’t have the internet. A person who committed an infraction. And Alabama would be given one level sentence and a person and in San Francisco would get probation. And in those days, more than half of all federal defendants got probation. And that just wasn’t right. So they passed a sentencing reform act and they wanted a truth in sentencing. But what you have now you have the guidelines of what each crime carries based on based on formula, and the offender’s characteristics, and those, and those guidelines are fairly rigidly followed, you know, your, your, your analysis through through Andy’s famous computer model will come up that that person should get 84 to 96 months. And you’re going to get 84 to 96 months unless you qualify for a downward departure. But there’s also upward departures where you can get additional time. And the prosecution sometimes takes up or departure. Well, the attitude of the American people, as far as I can tell, has not changed on a dramatic enough scale, to put things back similar to what they were in 1984, which was, there was a lot more freedom and sentencing. And then there was a period of time it I don’t recall, it’s been so long, exactly how much time you had to throw it before you eligible for parole. But it was it was certainly a fraction of your time. I mean, I think it was it was long along the lines of maybe half or even less. And I don’t see that coming back. Because the the public has been whipped up to into such a frenzy about a lot of people not paying their debt, that the thought of letting someone be eligible to be scot free, after serving only a third or half of their time, which just would just not be tolerable to the average American. So I don’t see that changing anytime real soon. So in terms of the first step, Act, the first step act, as I recall, and again, I’m not an expert, I’m only gonna I’m only gonna tiptoe around what I do know. What I do know is it was broader in terms of what it would have done prior to the hijacking of the us senate floor, it was a compromised piece of legislation. And Senator Tom Cotton from Arkansas, latter group of conservative Republicans to strip out provisions of the first step act. And that’s what happened. And do I think that they’ll ever change that? I hope so. I don’t, I don’t know. But until until the public’s attitude changes, I don’t think that that the low security camps are going to be opened up as options. Because there’s that camera that’s going to come inevitably, to an official when someone at one of these camps just walks away. And why were they able to walk away and no mid level bureaucrat wants to deal with that. So the best thing to do is to not have the option for that camera to come in. You don’t have the people eligible to be in a walkaway camp where they can walk away with a camp that doesn’t have a fence. And that’s basically what we’re talking about the in the federal system, you can never reach one of those honor camps. If you have this safety factor following you they won’t put you in there because it’s a it’s an issue of public safety that if something happened, what would we do? And how would we explain it? They’d rather not. So that’s that’s why I don’t see that changing anytime soon, either.

Andy 13:00
Yeah, I guess you could look at that as being like a low the risk is low that something would happen. But if it did happen, the impact would be great.

Larry 13:08
It would be it would be something that would be highly sensate sensationalized, right. And there would be so much blowback about it and you would end up having an overcorrection you would end up having the the industrial complex would come out and demand that the people that are even at medium security camps be that they would be locked I mean, it would be it would be bad. And it’s it’s sad and tragic. But unfortunately, this is a mere reflection of where society is. Now that’s that’s what the public is demanding.

Andy 13:42
Understand, okay, and then we will move over to this one. This is sort of a two parter where we covered part of it before but so we are going to cover the new part first it says, Dear registry matters. I need to get some like kind of like the at like nine o’clock on a Saturday night you’d have like the love to dedication section on the radio. I could like get some like heartfelt music in the background. I was selected receive the transcript to podcast episode 161 because my question to the legal corner was submitted to you to be answered. I’m the guy with dual citizenship in the United States and United Kingdom, England, that plans to renounce my US citizenship, citizenship and live the rest of my life in England, hopefully with a fresh start in life without a criminal record and without having to register any more, I hope. Anyway, in Episode 161, you guys said that you will get to my question in Episode 162. do too many things planned for 161 to answer my questions. With that said, Can I please receive the transcript for 162? as that is the one with the answers to my question. I greatly appreciate it sincerely. What of the original question Did you want to gloss over go back over in any detail? And are we bringing our mystery person on his guest? I forgot if that’s what we decided to do or can it

Larry 14:59
he He declined at the very end. So we’ll do the best we can. So I’m, I’m going to, I’m going to just take the parts of the question that I feel comfortable answering. So So what he wants to know, is about renouncing his United States Citizenship to move to England as a dual citizen. I don’t think that would be necessary. If you’re a dual citizen, my understanding that you would have, you would have the right to enter. And, and, and, first of all, we would never advise anyone to renounce their US citizenship, that’s a prestigious passport to have. And if you need to move around the world, except for maybe in a few countries, I don’t need to stir up the hornet’s nest by naming an American passport, it’s going to be a great thing to have. So I would never renounce US citizenship or even contemplate such a thing. So that would be something where, if he’s determined to do that, he’ll have to seek advice elsewhere. But then he wants to know about a fresh start. Would he have a criminal record? And of course, you would have the American record of the conviction. And the the United Kingdom, I’m pretty certain would know about that. So the question is, would they require you to register, we did consult with our, with our person that we were going to have on, and he felt a little uncomfortable, because he’s not an attorney, and he wasn’t sure. So I would assume just for the sake of being on the safe side, that if you have an American conviction, you’re probably gonna have a duty to register. But what we have determined, as the registered UK looks nothing like the American system, you don’t have all the disabilities or restraints that are imposed on you, the United States in terms of where you can live where you can work. It’s apparently primarily law enforcement, registration. And most of the registration periods are far shorter than what the US has. So if you end up with a registration obligation in the United Kingdom, is probably going to be much shorter than in the US. And it’s going to be much less onerous in terms of what you would have to have what you would have to deal with. And then his other question about, he has five years of extended supervision imposed by Wisconsin, and he wants to know if he can travel? Well, in terms of traveling legally with supervision, it’s been the most rare situation where I’ve known, I think, maybe once or twice in my career where a person has been allowed to travel internationally, while there will be other ones supervision. So I think that’s a long shot. But let’s assume that you finish your Wisconsin supervision, the United States will not do anything to prevent you from traveling, you can travel anywhere you want to at any time you want to. You have a 21 day advance notice requirement imposed by federal law, which most states have adopted that either by regulatory integrating it into the requirements by simply having you sign a form, or it’s in their state statutory scheme, that you have that duty, well, that generates a notice to the foreign nation, that you have a conviction that they don’t find particularly appealing. And some nations, a significant number of nations will not admit you. So you may end up landing in that nation and not be admitted, as I understand it, as a dual citizen, they will admit you, so this won’t apply to you. If you get off supervision, we’re told that you’ll be able to get in. But But if you’re if you’re if you’re a normal circumstance, that you’re not a dual citizen, oftentimes people are turned away after they’ve traveled, they’re told you cannot enter our country. And just remember, this is a two way street, people travel to the US. And they’re not admitted. Also, this is an information sharing regime where the US receives information about people that may be criminal, or they may be on suspected terrorist watchlist or various reasons. And they are not admitted to the United States. But when you travel, it’s best to do everything you can to find out in advance if that country will admit you and I think Andy has a website that he can refer you to that will help you we have an associated group that keeps that type of information. And and you could you could find out on their travel matrix, what the experience is for people who want to travel.

Andy 19:09
That’s the registered travel Action Group run by Paul Rigney, I think is the guy’s name. That is correct. It’s super easy, simple website. It’s almost like there’s an embedded spreadsheet go on there. And it’s organized by continent, I believe, mostly. So it’d be like Asia and America. And then you’ll look to the next column and you’ll see which country you’re talking about. I happened to be looking at Barbados Recently, there was something where if you are a remote worker that they’ll give you an extended work visa, I was just looking to see if maybe since I’m a remote worker anyway, could I go to Barbados for a year? Barbados is a country that’ll let you in without question. It appeared

Larry 19:47
so well, and I appreciate this person who’s a subscriber to both in arsal digest and to our transcript service. I wish I could be more specific, but we try to stay away from specifics because we we don’t have any way to give you the legal advice? In terms of this? Hopefully you can find someone who can, who can do some research for you, and find out what more specifically the UK would require. But it looks like it would be very benign compared to what the US would require if you were having to register here.

Andy 20:17
What is your opinion, though, if the person is like, let’s look at it from the US point of view. And if you acquired a conviction of some sort in another country, let’s call it that as some kind of PFR related offense. And you were then traveling back to the US and you show up with your US passport. You’re a US citizen. I don’t I struggle to say that they would refuse you entry. I’m not saying that they don’t reprimand you, and all that stuff. Like, but I can’t see them not letting you in.

Larry 20:47
That’s that’s they would let you in. If you’re if you’re a US citizen, they would let you in.

Andy 20:53
from that angle, if you then transpose that to their side, I’m inclined to think that they would let you in. That doesn’t mean you have a cakewalk, what you get there just thinking that they would let you in?

Larry 21:02
Well, well, he’s wanting to be forgotten. He’s he’s wanting to know if he would have the ability to vanish. And I would be very surprised if he would vanish but even not not vanish. If he’s registering, it appears that he would have very significantly reduced requirements on non public registry that’s only with law enforcement. And for for a far shorter time that was required in the United States and most of our states.

Andy 21:28
I’ll tell you, one of the things that I wanted to cover with you, when when we first started the podcast, it was I remember reading somewhere that the EU, the United Human Rights Watch, I forgot what it’s called. They had the United States and the sex offender registry of the United States listed as a crime against humanity, almost a human rights violations sort of thing. But you, as I recall, you said like, this doesn’t matter, it’s still the US, we can do what we want. And whether the international community shuns it and says it’s a bad thing, whatever. But I just look at all of the International uproar about it, and other countries that will just turn a blind eye. We talked about the guy’s YouTube channel six months ago, talking about Germany. And they asked him how long ago was this crime and his crime, he says I was 10 years ago, I don’t know any details beyond all that, and I’m not trying to get into that. But they if it was 10 years ago, like just follow the law, they don’t look at something as being 10 or 20, or 50 years old, and we’re still gonna put the screws to you because you screwed up one day.

Larry 22:34
Well, that’s Americans don’t tend there’s an interesting thing about Americans and and I, I’m trying to say, trying to figure out Southern to say it gently. We don’t, we don’t care much about what international organizations say, unless it suits our purposes. So so most Americans are not going to be alarmed about any criticism of the US. I mean, we’re the United States of America, we do everything right, we’re the best at everything. So the fact that our human rights organization, but it would have would have published anything that was critical. Most Americans have never heard about it. And if they heard about it, they would poopoo it, they would say that was a whole bunch of just leftist extremists. But what they do is when they find something that they like, like, you’ll find some of my conservative friends, they’ll say, Well, according to international law, that’s the way that you, you, you scoffed at, when, when when this setup was confirming it was one of the women justices that’s sitting right now, I don’t remember if it was a witch platoon. So I’m not gonna say but, but when she said something about international law, he was ridiculed. Say that we should never look at international law. So there’s a little bit of hypocrisy there. We’d like international law, but it’s something that suits our purposes, but we we thumb, our nose at it, generally speaking. So most Americans, the fact that we were cited in International Human Rights Report as being a violator of human rights, they wouldn’t care about that. The average American could care less.

Andy 24:11
I hear Yeah. Okay. All right. Then we have this one little section from a comment from someone that you posted just to be read. And it says to Nassau, I am currently being held under South Carolina’s PFR violent predator law in civil commitment after having served my 20 year prison sentence. I am supposed to be here for treatment of a mental condition that was not present until I maxed out my prison time. Hmm, coincidence there. Larry, do you think you due to the pandemic, there has been no type of treatment since March of 2020. The facility has basically has been on a modified lockdown since March. So I keep asking myself, why am I still here, if they cannot provide and will not be able to provide treatment for years to come based on the COVID pandemic. I would appreciate any more material and or systems to include other resources I can contact with to help me in this situation. That’s a catch 22. And that’s like a snake eating its tushy if there aren’t going to provide him the treatment, and he is listed as needing the treatment, he’s just stuck in limbo. But somehow he didn’t end up with the mental condition until he was about to get out. Oh,

Larry 25:20
well, then that’s the travesty of the sex offender civil commitment regimes, is it’s really not about treatment. It’s all about extending the confinement, if they really, if they really thought they had a mental issue. First of all, you don’t have to prosecute someone, you can seek a civil commitment. Every state has a civil commitment process. But magically, they’re criminal until they serve out all the time that they can heap on them. And then they have this dubious, awful lack of due process that most instances of the 20 states that have civil commitment, they have this horrible process that is stacked against the person, and they commit them. And then they’re sitting there with the gold normally in a civil commitment regime is to get the person out. Even john Hinckley, who shot President Reagan, and shot the press secretary and to the president and shot three individuals. He is free today. He’s out. The goal was to rehabilitate Hinckley, and get him out I took a very long time because he did a very heinous act of shooting all those people and took down for like 40 years, right? He was down for pretty well, well over 30 years. But But this, this is so tragic. And all litigation has failed. Now, when I when I read this, it occurred to me that although we don’t have a magic answer, I’m wondering if there is an angle to work because he’s supposedly being held for treatment. But if if the treatment is shut down, and he’s merely at a detention facility, without any treatment, like, for example, if you got caught in it never Neverland for when you’re at prison, and then they filed a petition, and you continue to be held in a prison facility, which I’m not exactly clear where he’s being held. But if you’re still held in a prison facility, while you’re waiting for your civil commitment, that would be an interesting litigation, how long they’d be able to hold you. And he’s been committed already. So I’m guessing he’s been transferred to the facility, but they’re not providing any treatment? Does he have a cause of action? I don’t know. But it’d be interesting to explore. So I’m asking everybody out there. If if we can raise $50,000 at the end of this podcast, when it goes when it goes live for this, this might be a fun case to litigate to see if if we can force them to either release him or start inventory. But

Andy 27:55
Alright, so should I give them your phone number to call for the telephone?

Larry 28:00
Well, we we’ve got we got this is all going to be expensive litigation. This is an issue that has been litigated over and over again, civil commit, but is not unconstitutional. So we’re starting out with we’ve got to come at it from a different angle that’s been borrowed, the body of case law has been built, built all across the country. We got to come up with something novel and different. But this is slightly different. I mean, he’s he’s waiting for a treat, but there’s never going to come or at least not anytime soon.

Andy 28:33
Yeah. And how is this different? If it got to SCOTUS, just, for example, the Supreme Court if he got to them, is he having due process violations is is because the civil commitment thing seems to, you know, you go jump off, you threatened to go jump off of a water tower, they will confine you for a few days, and no one complains, if that’s some sort of civil rights violation, because you were potentially going to hurt yourself. So they lock you up for a few days until you cool off. But this is indefinite. And we have talked about this before, like what what are the angles of attack that? What are the arguments that would be made to a court talking about this?

Larry 29:13
Well, I mean, you with this, the fact that if he’s just being warehoused, and there truly is no treatment, then this is not a civil commitment. This is a detention. And so I mean, it off top of my head down, since this is coming to me cold, I would argue that this is nothing more than extended attention. And, therefore, he has the right to be free or the right to be treated. I don’t know if any courts gonna buy it. But I know that if you were sitting there, and if you had served 20 years in prison, and then if they had decided that you had a mental illness, and then they weren’t, weren’t providing you in a treat, but you would be very upset, wouldn’t you? Totally. And so, I’m not minimizing his complaint. I’m just telling you that the case It’s not good. It’s not good for this, the courts have repeatedly said several combat biters just fine.

Andy 30:07
Ready to be a part of registry matters, get links at registry matters.co. If you need to be discreet about it, contact them by email registry matters cast@gmail.com you could call or text a ransom message to 74722744771. 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 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. Well, okay, I guess I need to do the drumroll please. Because now we’re going to go over to this featured segment with this incredibly awesome, most bestest decision out of Tennessee. And All right, you ready for this one partner, you want to cover something else before we get here?

Larry 31:13
I think I’m ready. So is it this? Is this recent nefer to be late breaking news, or is it too many days old?

Andy 31:19
I mean, I can press the button if you want me to show there. Alright, I’ll stop that. All right, late breaking news. Because I mean, I don’t know when this is two people started emailing me about this. I got I got a half dozen dozen people sending me this case asking, Hey, is this worth talking about? Is this good news. And so here we are, says, You people, Larry, I send it to you a handful of days ago. I don’t know if you heard about it before I sent it. But this is john doe versus William B. Lee, at all. And it’s a monster 87 pages. And I can’t believe that you would even expect me to read any of those 87 pages where it’s from the United States District Court of the Middle District of Tennessee. And did you read all 87 pages? And are you ready to talk about it? This just came out of nowhere, because I don’t remember talking about it before? Have we talked about it before?

Larry 32:07
Actually, I did read all 87 pages. I got really tired. But I think we have talked about I think we have talked about this. It’s actually an old case it was filed back November 8 2016. That’s when the original complaint was filed, along with a motion for protective order so that they could be anonymous. And that’s what the case it had a different name. At that time. The governor of Tennessee was William Haslam. So so he was the defendant along with the Tennessee Bureau of Investigation director who was named Mark when. And it was two separate but identical complaints filed by the same attorney. And the two cases were consolidated for the purposes of case management discovery and pre trial motions. So we we have talked about it. And the case, the state tried is the this is a four four plus year old case. And they the state did what states do, they filed every motion they could think of, and they tried like hell to get out of this, but they didn’t get out of it. And they failed because the landscape has changed a lot due to the ruling from the Sixth Circuit. And Delos versus Snyder, and Tennessee is in the Sixth Circuit which makes doe versus Snyder controlling case law.

Andy 33:27
darnit you just like preempted my one of my questions there towards the end about that. Can we can we hit that really quick? So if they’re in the same district, it’s not like if there was a case in the same state, it would have a huge amount of impact. But if is it similar if they’re in the same federal district that it has a lot of controlling force over them? what’s the word I’m looking for?

Larry 33:54
And and the and this is this is a circuit. So within the Sixth Circuit, all the states that are in the Sixth Circuit, those vs. Snyder is going to be what any attorney cites to when they’re challenging any aspect of registration because that case is binding. So the defending party, the finding is the least of this. The defending party needs to distinguish themselves and say, no, we’re not our registry is not like Michigan’s and here’s how we’re different. And they tried, they tried to do that. That’s what any state would do in the Sixth Circuit, they would say, Nope, nope, we’re not we’re not like that. We’re distinguishable.

Andy 34:32
But, Larry, if we were to make a matrix of, I don’t know 10 things that registries do. And we would go to you know, like residency restrictions, the various disabilities and restraints of what we could come up with. I don’t know how many we would actually come across. But if we like if we put x’s in, they would all be very similar at some just less shitty than others, but they would all be I don’t know how you would go out and say, well, ours is different because we have a 300 foot restriction versus 1000 foot like that’s just the different color of apple?

Larry 35:04
Well, that’s that’s not necessarily true. But you, if you if you jump over to the eight six circuit in the state of Arkansas, they have residency restrictions, but the residence restrictions only apply to level three and level four. And those were Peter was actually had due process, they had a risk, right? Therefore, they have had the opportunity to be hurt. So if you were, if you were trying to cite those versus Snyder, and Arkansas, if I were the Arkansas AG, I would say totally irrelevant, Your Honor, totally irrelevant. We have a process in Arkansas, that allows an offender before they have residence restrictions to be evaluated on individual basis, they have an opportunity to appeal that they didn’t do that their level three, their level four, they pose an elevated risk to the community based on our process. And therefore, we are distinguishable. Those vs. Snyder doesn’t control here. And I would win on that if I were the state of Arkansas. So you can have restrictions, you can have restrictions, if they’re narrowly tailored, I keep trying to tell you all makers out there, if you’ll stop trying to do everything to everybody, you can do an awful lot of things to some people, legally, I’m not going to tell you which ones unless you pay me a whole lot of money. But I’m telling you that things are not automatically unconstitutional, as long as they’re narrowly tailored. And that’s something you’re gonna have to learn how to do. So.

Andy 36:34
Just Just as a little side note, there may be a drinking game going on in live chat, every time you say Bible, they have to take a shot, just saying. Did you did you? Did you think about bringing the the, the plaintiff’s attorney on here, and, uh, you know, all 87 pages, it would be it would be better for them to explain it in their own words, because they were the ones that generated the 87 pages versus you trying to read it and figure it out from that side.

Larry 37:01
So I did, actually, I thought about that. And I invited there’s two attorneys of record. And I received a response from your office that reads as follows. Thank you for contacting us, the local rules of the court for the Middle District of Tennessee strongly discourage and limit comments by counsel of record on pending litigation. So unfortunately, we’re not able to participate in the podcast at this time. So and even if they had agreed to come, come on, I would I would still have to read 87 pages, I wouldn’t know what to ask them.

Andy 37:35
I understand that. Yes, it would help to be informed on the things that you want to talk to them about. Can we dig around that noodle around that for just a minute about them coming on? And I mean, hasn’t this case already been decided? Then why would they have some sort of? What’s the word? gag order? I don’t know if that’s the right word. Why would they not be able to talk about an ongoing litigation?

Larry 37:59
Well, you know, since I didn’t read the local rules that they’re talking about, I don’t know specifically what it says. I think it’s an abundance of caution. We’ve heard that term a lot during the pandemic, an abundance of caution. I think it’s probably that they don’t know us, they don’t know that we’re not going to put them on the spot. They don’t know that we’re that we’re that we’re actually going to give them to questions in advance, and we’re going to let them have a chance to modify the questions. They don’t know all that. And they, they probably are afraid we’re gonna try to ask them their strategy. What they might fall in the way of an appeal, and they’re probably afraid we’re going to ask them what we think of what they think about the judge. And then it’s somehow we get back to the judge, I would never do that. But they don’t know that because they’ve never heard of us. But But in this, in this case, what would have happened if they had expressed an interest is I would have given them a list of questions. And I would have said, Please modify these questions. And tell me what anyone you feel uncomfortable with answering. And then submit your own questions. If you have particular things you’d like to be asked. That’s what I would do. But but they just said flat out? No. And we did have the attorney from Tennessee on call. I think we did an article and action with him that brought the lawsuit about the children about the blood, I gave the people the order to vacate because they couldn’t live without whether a minor child. And he he expressed the same concern that he did agree to come on, but he was very careful. And we did go through a couple of versions of the questions. But I would actually give you the chance not to answer something, and I will push you to go where you don’t feel comfortable going but they don’t know that.

Andy 39:39
Um, what was this case about and what were the issues that they brought?

Larry 39:44
Well, there was there were two john doe plaintiffs who brought separate actions against the governor of Tennessee and the TBL. Director, as I said before, and the plaintiffs allege that retro active application of the Tennessee sexual offender and violent offender registry And verification act of 2004 is unconstitutional. And, and they they said that it violates the Ex Post Facto Clause of the United States Constitution. It violates the right to free speech guaranteed by the First Amendment. And it imposes oppressive restrictions and violation of the rights to parent work and travel to the due process clause of the 14th. amendment. The two cases were consolidated for purposes of management of the case and discovery, as since it was the same attorney. And and that’s that’s that’s what this case was about. It actually was a mammoth complaint. I think it was 56 pages to start with. And here we are four plus years later, and we’ve gotten a ruling.

Andy 40:47
What’s the first amendment violation? do you do? You know, I love first amendment violations. I’m really fascinated by the First Amendment. What’s Do you know what the details were the first amendment complaint?

Larry 40:56
I don’t recall what they specifically alleged.

Andy 41:00
Okay, that’s cool. I was just curious, like, I mean, the whole thing with with whether you can take the president off, or the First Amendment, just because all that’s been going on with pietschmann not trying to go there either. Is that person different in having First Amendment protections? And one I just, it’s an amazingly interesting, nuanced and complicated conversation. I think it’s super neat. So our people, so the way you people want to know which side one which was victorious in this case?

Larry 41:30
Well, we want largely wait. So yes, our side one.

Andy 41:39
And what does that mean? What? What does it mean that our side one can does the registry like completely go away?

Larry 41:46
No, the registry does not go away. So like, maybe we can dig a little deeper into it about what our side is when our side one because the legal landscape has changed. The Sixth Circuit had previously upheld Tennessee Sex Offender Registry laws against similar challenges. And the federal decision on the Sixth Circuit was the case called cutshaw versus sunquest, and 1999. But see, the problem is Andy, the legislature’s they just can’t help themselves. And they keep piling on more and more restrictions. So the earlier versions of Tennessee law weren’t so bad. So so the but but but but registration requirement that started 94 evolved dramatically. And so so we’ve consumed a lot of time to, to talk about all the things but in and, and in 2000, they brought in lifetime registration for those convicted of actual or attempted aggravated rape, aggravated sexual battery or rape of a child. And then on 2004 is when they repealed their their, their previous amended version, and they brought in the current version, and that that added a bunch more requirements. While while much of the former registry was brought over, they created new classifications of registrants and the new series of requirements depending on the regiment’s registrants classification. And then they didn’t stop in 2014. They amended it again, to create a new offender classification called offender against children. And then registrants whose victims were under 12 or 12, or under, they became subject to lifetime registration because they they just can’t stop, regardless of whether their underlying fence was actually categorized as violent. And that was what hung them up here. john doe, number one, he predated all registration in Tennessee. So they weren’t happy just having him register his 94 conviction. His college note occurred before there was any registration, they had to keep messing with him. They had to keep putting more and more disabilities and restraints on him. They eventually got it to where he couldn’t do anything. And he was a violent offender when there was no violence he had no, the offense was a violent and he had no history of violence that I could see. But that’s what they keep doing. And that’s what keeps thinking your ship, folks. You keep doing the same thing. And we’re going to keep sinking your ship the same way. But but they don’t learn anything apparently.

Andy 44:33
I got is the pressure just the voters is this just the currency of politics is elections and voters. So this is sort of easy money. It’s getting in and out. I don’t you know, not a Ponzi scheme getting in early on the on the boom of something that they can ride this wave of saying we’re tough on crime and we’re gonna put the screws to pfrs. And like, that’s just guaranteed to get you wins.

Larry 44:57
You know, I take a more positive approach. I don’t Don’t think that there are some who sell it is tough on crime. But I flip it over, you’re going to be vilified for being soft on crime if you don’t. And that’s the fear. You know. And when I used to bully talk to our lawmakers in the state, that’s what their fear is. They say, Larry, I’d like to help you. But here’s what’s going to happen to me. And I, since I understand politics, I know what’s going to happen to them. I know that now that we have all this transparency, we have all this openness so that everybody, the sun shines in every comment you make in a committee hearing, it’s being streamed around the globe. And it’s being saved for posterity. And so what happens is, if you make one comment, like you have any consternation about anything that’s being proposed, guess where that ends up? That’s a literature that next time around, but

Andy 45:58
there’s an election. Does that mean you have to have these conversations with the lawmakers behind closed doors, you know, office visits thing, you have to build those relationships, which you’ve only mentioned once or twice?

Larry 46:10
Well, it does, but I’m talking about when they’re debating, unlike some of our states, where apparently they have the debates in the middle of the night, and a cloak and dagger field room, we actually have our lawmakers have the debate in public, with the cameras rolling with the stream taking place. So if there’s a bill being debated, that says that they’re going to do X, Y, and Z on the registry, and a person raises their hand and say, Madam Chairman, I’m a little concerned about that. Because it was seemed like to me, we might be having constitutional issues. If we do that. Guess where that’s going to end up that comment is going to end up.

Andy 46:44
I recall something here in Georgia, I don’t remember the details. But it was between the current governor and the one that was running against him. And the individual had voted against something that was going to put the screws to PFR. So then the next thing you see is a commercial talking about, we have to put the screws to pfrs. And this person voted against it, when that was a bad public policy bill, but just went to town on saying that she was all pro PFR.

Larry 47:10
That is correct. And so I’m telling you, I don’t believe that people stay awake at night and say, I can’t wait to win votes, but being hard on pfrs. I think what people do stay awake at night is saying, How can I minimize the damage? If I try to be rational on this issue? What can I do to keep from being vilified?

Andy 47:31
And that is an impossible card a parallel park?

Unknown Speaker 47:35
It is.

Andy 47:38
Alright, I think you brought up some dovie Snyder here along the way. And why do you bring that up? And why are you so hell bent on building a body of case law?

Larry 47:50
Well, it’s so important because we are building a body of case law. This is real time illustration of that body of case law. So I’m going to quote from the opinion, and it’s on page 19 of the opinion that anybody wants to look at. Indeed, the sixth circuit’s decision in cyber one has reshaped how district courts and this circuit analyzed challenges to sex offender registration laws under the Ex Post Facto Clause, that that’s a powerful quote, unquote, and get their pre trial summary judgment motion plaintiffs rely heavily on the ruling and Snyder one arguing essentially that Sora that’s Tennessee’s version is substantially identical to Michigan’s law at issue in cyber one, and is in violation Ex Post Facto Clause. So so the body of case law is important, because if you remember, we just talked about cutshaw, where they said the same, the same. Actually, a less restrictive version had been declared just fine. A more restrictive version, after those verses Snyder, which is binding has changed the analysis. And by the way, this was an appointee of Donald john Trump. This wasn’t some left wing radical, who was looking for a way to be a softy on criminals. This is a Trump appointee, that this made this decision.

Andy 49:14
I think that means that you’re going to convert to the other party then I

Larry 49:18
don’t know about that. But just in case we’ve got new new listeners here, insider Insider, the Sixth Circuit held at Michigan sex offender registration, I impose punishment, and therefore the right retro active application of Michigan sorry, Sora, the 2006 and 2011 amendments were unconstitutional and violate Ex Post Facto Clause and you can find that in those vs. Snyder, and that’ll be at 830 for federal third. It’s page 696. And that’s 2016. The court and that case and Snyder took issue with three parts of the statute which cumulatively made this statue unconstitutional and that was the prescription of restricted zones. plaintiffs could longer live and work. Remember how horrible and disabilities are restraints? Yeah, that’s, that’s what that tribunal focused on. Then they looked at the classification, which which was done by the categorical approach to that and Walsh Act, they had those tier designations. Now, Michigan has subsequently amended to take those tiers off, you’re now no longer if you have an older conviction, you’re they’ve took the they’ve taken those off. And then the the enhanced reporting obligations of how frequency how frequently you had to report under the under the under the animals criteria, the tier threes had to report four times a year. These are folks disabilities or restraints. You can come in when you want to, you can argue all you want to about recidivism, and it makes you feel good do that. But what wins cases over and over again, is this right here. If you can’t win, if you can’t articulate what the disabilities or restraints are, you’re not likely to win, and you can feel good with your recidivism. But you’ll win cases when you prove disabilities or restraints.

Andy 51:10
A Brenda asked she said, Wait a minute, this dude in Tennessee was his decision because they classified him as violent retroactively, or because they pulled him onto the registry, retro.

Larry 51:21
It was a combination of all the above. Okay. He was he was he was it was okay to register him. But they weren’t happy with just having them on the registry. They had to keep on keep on and they finally imposed enough disabilities restraints on him that he was able to prevail. And that’s john doe. Number one not john doe. Number two, he was not there was a registry when he when he when he had he, there was a registry in existence when he got convicted.

Andy 51:51
Okay, there was no registry when he got convicted. Okay.

Larry 51:54
I gotcha. It was it was for number a number two, but not for number one.

Andy 51:58
Okay. Oh, for john doe number two, not for number one or vice versa? Yeah, for john doe. Number two registration

Larry 52:03
did exist for

Andy 52:04
him. Okay, okay. I gotcha. Because he’s old as dirt. And his conviction was from 1940, or whatever, right? I mean, I don’t know the details, but like that, just john doe

Larry 52:14
number one. But what was the law before was this right before but but john doe number two, he there was a registry. But they kept on they can’t stop themselves. There’s there’s a, there’s a there’s an advocate in Maryland who will go named nameless, but she gets paid big bucks. And that’s why Maryland’s fighting 20 or 30, legislation, pieces of legislation this year, they get paid the big bucks to come in and advocate for this kind of stuff. And they will not stop coming. Because there’s money out there to pay these people to come up with these great ideas. But anyway, let’s keep going.

Andy 52:49
I know I’m still trying to figure out what the what is the incentive to someone like that that’s the advocate other than they’re like a run book, and they just have some personal, some sort of issue internally that makes them want to keep doing it. I tried to like, put my head in their camp, wear their shoes and see why they are so hell bent on making things just worse, worse, worse, worse, worse, even though it doesn’t technically accomplish anything.

Larry 53:15
That Well, first of all, they’re my they’re not making it worse, worse and worse. So they’re my they’re making it better, better and better. They have a different perspective. This individual believes that she’s protecting children. It’s her full time job. And that’s what she does. So she believes that all this stuff that she can dream up about if you’re if you visit a place for five hours, five times or more a month, or whatever that crazy language I have in Maryland is she believes that she’s keeping people safe. She’s misguided, but she believes that. So so

Andy 53:45
for you to be. So you know, you and I hang out for many hours on Saturday. I know we do it virtually. But if we were to do this in the same place, that means we’re up to no good cuz we spent a couple hours a week all the time. That’s correct. that would that would mean that we I have to register your address, because we do the podcast at your house, something like that, even though that’s correct. There’s that’s bullshit. All right. But literally, I did kind of like scan through the 87 pages and appears to me that the court dismissed some of the original counts before the recent ruling, and they dismissed others apparently deciding this on the Ex Post Facto Clause. Did I did I kind of glanced over that

Larry 54:23
right? You did the the the there was a really issued about a year later in 2017, where the judge had dismissed a number of their complaints. It was a complicated case. So people don’t want to know what got dismissed but but at that point, a lot of a lot of the of the allegations were dismissed. But the ones that have survived were the ones that are read at the beating of the podcast. That’s beginning of the segment of the podcast. But they didn’t all survive because they they in in rendering this final order here. They dismissed everything except the ex post facto These plaintiffs were able to be awarded relief under the Ex Post Facto Clause. So therefore, the claims that the law violates the free speech guaranteed by the First Amendment, and it poses and that the law imposes oppressive restrictions in violation of the rights of to parent or to work into travel. All those words were not decided they work. The judge said that they are. They are worthy. They are not frivolous. But they did need to be decided courts decide if you can get the relief you’re looking for, with with only a narrow ruling, which this Molly’s Ex Post Facto Clause, therefore, they can’t subject this version of registration to these two, they don’t need to decide those other claims, but they’re still out there working.

Andy 55:48
So these issues can then be re litigated by the same plaintiffs.

Larry 55:55
Probably not by these plaintiffs, unless Tennessee forces of the register again, if they forced them, if they go back and do what Michigan and Pennsylvania all the states seem to do when they lose something, if they go back and create a new version of registration. And if they have those same disabilities in there, they could litigate those again, but if they took those out, they wouldn’t be able to. But what I would expect Tennessee to do is that they will probably appeal. Probably they can’t help themselves. They’re wired that way. But but but these these plaintiffs, if they don’t ever have to register again, they won’t be able to litigate those issues. If they never have to deal with the registry, they would not have the requisite legal standing. So remember, you have to have static. So if if they don’t have standing, they can’t litigate these issues.

Andy 56:44
Can I take a quick detour on this disabilities and restraints because I really am kind of a fan of this that you introduced us on this podcast to the Kennedy Mendoza and that whole family of names?

Unknown Speaker 56:55
Yes.

Andy 56:57
What is that? Can you remind me

Larry 57:00
Weldon, and determining if a regulatory scheme imposes punishment, which is what everybody argues that the registry as applied the sex offender stat registry, there are dozens and dozens and hundreds of registries, but the sex offender registry they argue as punished, but so the court said that we will use the case decided in 1963 called the Kennedy vs. Mendoza Martinez. And they had seven factors that they said that spite the legislature names everybody, they have that same preamble that this is non punitive. And this is merely to aid the law enforcement and keep the community safe and blah, blah, blah, the boilerplate language. So you could you can call anything what you want to. But the court said we will use these factors, there are seven of them, there’s one or two that they’re usually deemed almost irrelevant. And one of those two, I think should be relevant, but no one’s actually figured out how to argue it to make it relevant. And so we won’t go into that today. But to me, the biggie, as always, disabilities are restraints. We don’t punish people by imposing disabilities or restraints on them. And if we will have a regular way to punish people, but we’ll have a regulation, when you have a regulatory scheme, there’s never any attempt to inflict any punishment. We don’t tell the person you have to keep your steam table at 180 degrees, because we’re trying to punish you. We tell you that you can have to keep your steam table 180 degrees, because we’re trying to keep the public from getting botulism or whatever those foodborne illnesses are called us fair, fair. That is there’s no intent to punish the person. When we tell the young man between 18 to 26, he has to register for the draft, he has to do it, he can’t opt out. We don’t tell him he has to do that. Because he’s we’re trying to punish him. We’re telling him we do have to do that, because we might need to contact you quickly in advance of the need for for for bodies. So so so that those factors are determined helped determine something that’s labeled civil regulatory, if it’s actually civil, regulatory, and I focus always on the disabilities or restraints of the five that they’re that are that are deemed most relevant. I focus on that one. The others are that the others have Barrett you want to you want to win on all five of them because most courts look look heavily it five of the seven, you want to win on as many of those as your has historically been regarded as punishment. And it is excessive, I forget what they are, but you want to look at all those. But you build your case around the disabilities are restraints. You build that if you have to put on testimony. If you have to call experts who build a case about disabilities or restraints, and you build it around how it’s not narrowly tailored. You can actually impose disabilities restraints like they do in Arkansas, on people who have had due process and just narrowly take more narrowly tailored. They have challenged the residence restrictions in Arkansas, all the way to a circuit and they’ve lost because they provide due process it has no Willie Taylor

Andy 1:00:03
Um, I think I recall in doe versus Rouch, you were all constantly the case did not order removal from the registry today order removal in this case.

Larry 1:00:15
A GSA that’s pretty a suit that you remember that because that that is something that we did. We did harp about I couldn’t understand that. And no, they didn’t order remove on this case. And according to the court, that was not one specific requests made and the prayer for relief. The the court noted that Tennessee actually has a removal process or had one at one time. And it might be that these two could qualify for move on to that process. And this is one of the things where I would ask the attorney, if they were here, why did you not put that in your prayer for relief? Because I’m familiar with with suing for getting off the registry. And that would be right at the top of my prayer for relief would be removal from the registry, so I can’t explain why it’s not in there.

Andy 1:01:02
Can I pause it that because they aren’t you that they attorneys come in different calibers. And I should let me say illegal thinker comes in different calibers you have you have disagreements with the various attorneys that we work with all the time. And you see things from a much more policy, like a politics point of view, maybe? I don’t know, I don’t know how to word that. Exactly. But is it just do you think it’s just through inexperience, and I’m not trying to get you to call out the attorney, but this happens kind of on a regular basis with all kinds of different attorneys, that you you see things, you know, in 4d chess, and they only see in 2d or 3d chess and you see something more detailed and expanded version of how you look at the world.

Larry 1:01:45
I think there’s some truth on that this, this is a big part of my life. Very few attorneys make this the sole part of their practice, because a there’s not much money in it. Most people that are that are in the PFR category, I shouldn’t say most a significant number have very limited resources, and those who have resources that are more plentiful, they don’t seem to be as impacted as much and they’re not anxious to spend money because they’ve been able to adapt their life to accommodate the requirements. I mean, if you have a lot more money, you can put more space between you and your neighbor, right. So 1000 foot buffer is not going to be as important to you, if you have the ability to put some space. And and it’s just a matter of reality. Generally, people who have are more fluent tend to be treated slightly different when they encounter law enforcement, because the capacity they have to push back is greater than a person who’s living at a shelter. But I think it’s because it’s my life. And it’s been my life for so long, that I’ve read so much. And I’ve thought it through so much like Yeah, I was just talking to the law professor that’s helping us on the on the cert petition to the US Supreme Court or on the on the main case out of the Ninth Circuit. And I was I was describing the Halloween sign challenge in Georgia. And he says, Well, why can’t they put the signs up? I suppose the biggest reason is because the the law doesn’t allow it. And I said, they can’t require these people to do that. And and we went round and round. He says, What can’t they restrict? Now, this is a distinguished law professor, an amazing guy. He really is. And he says, Well, I can’t they can’t they he said you haven’t won me over yet. And they said, can’t they? Can’t they restrict their behavior? I said, Yes, they can. They can do it through statute. But a sheriff can’t unilaterally invent requirements that’s not in the law, and impose those restrictions on people as well as that’s the essence of our argument. Hey, so that sounds kind of dubious to me. He said, I’m not convinced you’re going to win. I said, Well, I’m not convinced we’re gonna win. I have confidence that we have. We’ve got a good case, but I don’t know that we’re gonna win. But I know one thing. I’m going to try very hard to win. I mean, play that little clip from Bear Bryant number. We’re trying to win the game.

Andy 1:04:09
Just keep saying I’m trying to win the game. Why don’t you do this? Just trying to win the game. I’m trying to do that. I’m just trying to win the game.

Unknown Speaker 1:04:16
That’s what we’re trying to do here. We’re trying to win the game.

Andy 1:04:19
What is the what do you think that they’re going to do next? I think you already asked. I’ve heard you answer this a million times they will appeal but just because they can’t help themselves. HCP hep.

Larry 1:04:30
Well, this was a This one’s an interesting one because I mean, they are hardwired to appeal and that they they don’t like losing and they’re sitting there scratching their head saying the floodgates are gonna open so what they see here coming at them is like what happened in Michigan when the when the dose the six dose I think it was when they won their case. They know that if this stands that there’s going to be a new cause of action and issued on behalf of everyone in Tennessee. They know that so but but We’re in a different position than what Michigan was in Michigan. This was relatively novel to time for anybody to actually find what the Sixth Circuit did. Now, they have the Sixth Circuit has found that, and then the US Supreme Court indirectly affirmed it by declining cert. So So now they have to figure out in Tennessee, they have to figure out how they can distinguish themselves. They are herbart. And they have unlimited resources almost. And they’re going to want to appeal. But they’re going to try to what can we distinguish ourselves where we we’ve got a predicament here, because the circuit is binding the precedents not good. And we’re going to ask, when we lose it to the Sixth Circuit, remember, this is a district This is a trial judge’s decision, when they when they lose at the Sixth Circuit in all likelihood, cause one panel will overturn another panel unless there’s significant distinguishing factors, then another cert petition has to go to your Supreme Court, and they’re going to have to come up with something again, that distinguishes themselves from from why Michigan’s law is different. It’s longshot for them, but I still think that, that they’re so desperate to not lose that they have, that the odds are really good that they’ll do it. But yeah, who else?

Andy 1:06:16
And we already talked about this briefly, but I just want to reiterate. So this is in the same federal district as Michigan. So that makes it binding that was the word I couldn’t remember. That makes them part of the same, I’m going to call it a state just for you. And I’m doing air quotes for those of you that can’t see me that if you were inside a state, the ruling would be binding in that and then you expand that out to kind of like a region. So we have the district courts, this is similar in control like that.

Larry 1:06:46
Well, I keep changing. It’s not district as a circuit.

Andy 1:06:49
circuit, sorry, sorry, sorry, sorry. My term is wrong. So it’s sort of and this is one overload the Supreme Court.

Larry 1:06:56
This is this is the states that compose the Sixth Circuit. This is binding to dos versus Snyder case is binding. So every registry that oppresses people to the extent that Michigan’s did is a grave danger, because of that decision. And if it were state case, then it would the state Supreme Court decision would be binding, whether the state, but this was not this was a federal action, you know, the Sixth Circuit, the dose versus spider was litigated in a US District Court in Michigan. And it and it was appealed to the Sixth Circuit, but Tennessee happens to be in that same circuit. So therefore, this is binding case law. They can’t change that. See, it would be great if they were not if Tennessee weren’t in the same circuit, because then they could say, well, this is not binding, this is persuasive authority. But I mean, it’s not binding here, it is binding there folks, boys and girls in Tennessee, you might not like it, but your register is probably going to have to be peeled back quite a bit.

Andy 1:07:57
Interesting. But Larry to say that they didn’t do very much in Michigan, they like just rewrote the lawn. It’s, it’s better, but I think we could find arguments that it’s not significantly better.

Larry 1:08:10
I think it’s significantly better. But But no, the registry, the registry is not going to go away. And and I get people so mad at me, the courts cannot eliminate registration, because the mere act of registering a person isn’t unconstitutional.

Andy 1:08:26
Sure, you keep saying that I’m going to eventually find some way to count it. Public.

Larry 1:08:33
So you know,

Andy 1:08:34
what else what else

Larry 1:08:36
we’re not, we’re not going to be able to eliminate registration, we might be able to eliminate public registration. If there is enough proof put forward about how much disabilities are imposed by the mere act of being public registered, that’s going to cost money to put that together, you’re not going to be able to take antidotal evidence and say, I lost a job. Because the public registration, we’re going to be proof remember who who bears the burden of proving this?

Andy 1:09:05
I think the plaintiff does.

Larry 1:09:08
And what went wrong in the 10th circuit case, what the judge may not have a lot of, he didn’t

Andy 1:09:14
have a lot of opinion.

Larry 1:09:16
He didn’t have a lot of evidence he went, it was a goodness of his heart and how incensed he was about what was wrong with the process in Colorado. But he needed evidence to not be overturned. And that’s what we need in these cases. We’re going to have to develop the factual record below. We’re going to have to rely a little bit less on summary judgment and actually take cases to trial.

Andy 1:09:41
Anything else or is that your is that your closing statement there, sir.

Larry 1:09:45
I think we beat this to death.

Andy 1:09:49
I don’t think we have anything else on the agenda for this evening. Unless you Is there anything else that you want to do off script that you want to cover and you want to shout out to anybody or tell somebody that that you’re pissed off anything

Larry 1:10:00
Well, I can tell people that we have officially been created as a nonprofit. Now, we have not been granted, we have not been granted this C three status yet. So your your donations are not deductible yet. Now, that’s the next step that we’re working on just getting that that designation. But if if we do succeed, we hope to expand our services. Like, for example, everybody who wants to know what the registration requirements are, we’re not going to be able to give you a personal letter, but what we may be able to do is to send you the 30, or the 40 of the 50 of the 60 page statute in your state, and let you figure out what they are and admins, but that’ll generate more questions is what will happen is they’ll get to 60 pages, and they’ll zero in particular people who are imprisoned, they’re going to zero in a particular thing. And they’re gonna say, what does this mean? And we’ll get to either tell them we know or without we don’t know, it has the dead that there’s been there’s been no interpretation yet. On that there’s no there’s there’s nothing binding that tells, tells that guides us and but but that’s what’s going to happen. But we’re hoping that that a that there’ll be some people who will donate for that mission is vitally needed. People are desperate for information, as they were, you know that from your personal experience, but the letters we get people are just desperate for information. So hopefully, we’ll be able to slightly expand the services we’re providing and get people more information.

Andy 1:11:26
It’s it’s, I think the definition of irony, Larry would be something to the effect of while you’re in prison, you have an infinite amount of time, and you have like, slightly more than zero resources. And then the people on the outside have infinite resources, but zero time.

Larry 1:11:40
So we’re hoping fyp education will be able to fill some of that gap.

Andy 1:11:46
I hope so too. On the over on the Patreon front, a individual named Eugene has increased his Patreon image fivefold. And I wanted to thank him personally very much. It’s a really very generous, and I thank you. Thank you. Thank you. Otherwise, Larry, we’ll go ahead.

Larry 1:12:04
So he went from from 10 cents to 50 cents, right?

Andy 1:12:08
That is at 100%. Right? That is absolutely went from 50 to 250. But I want to extend from the bottom of my heart. Thank you very much for all that you do. Because you are awesome. And I appreciate you every time we record

Larry 1:12:22
that and that is why I am I speaking the site. I’m speaking the same time he was. So what else do you want me to do?

Andy 1:12:33
Nothing, nothing. We’re good. We’re good. But otherwise, like, subscribe, right? five star reviews, do all those fun things over in your podcast app or over on YouTube, wherever you find us. And with all that Larry, other guests, you find us over on registry matters.co and then you can find links to all the show notes and phone numbers and email and all that stuff. And I hope everybody has a great night especially you there. Take care. Good night.

Unknown Speaker 1:12:58
You’ve been listening to F YP

Transcript of RM164: Interstate Compact Revocation Hearings Explained

Posted on February 8, 2021 by andy

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 164 of Registry Matters. Larry, we got a phenomenal contribution from one of our patrons, and I’m showing up on the YouTube screen for people that happen to be watching it. The old curmudgeon picture that you are, it’s this old dude, he’s got his suspenders on his pants are up to his waist. Looking all angry, get off my lawn. So can you have you seen the picture?

Larry 00:44
That looks so much like me, it’s unbelievable.

Andy 00:50
I do that as a as a little bit of an afront to bring up to make sure that if you are listening to this, make sure that you go over to like and subscribe and share it over on YouTube and helps people maybe with some kind of like-mind on the subject. Maybe it would, the recommendation engine would help people discover the show over on the YouTube side of things. Anything you want to add to that before we move on.

Larry 01:13
Hit that SUBSCRIBE and LIKE button.

Andy 01:14
Also, the bell, ding ding ding. Yeah. Yeah, there we go. Look over in the corner on the video. I’m snazzy, I got buttons. What do we have for this evening?

Larry 01:31
We have more content that we can jam into an hour. We have three questions from behind the walls of prison. We have a couple questions from outside the walls of prison. And then we’re going to dig into interstate compact, probable cause hearings. And we’re gonna talk about Justice Scalia, the late Justice Scalia and his his philosophy about evolving about the evolution of the Constitution and why it does not evolve.

Andy 02:09
Okay. Beautiful. Well, let’s jump right into the Scalia clip. Did you want to set up the Scully clip any further than that?

Larry 02:16
Well, I do because we have a question that goes along with it. And I’ll read the question if you if you like.

Andy 02:25
Sure, please do.

Larry 02:27
Okay, so it’s says:

Listener Question
I’ve been listening to Registry Matters for a very long time. Thanks for the work you do. It almost seems as though Larry picks on conservative judges, I would like like to know why Larry can’t find it within himself to give credit for anything good from the conservative side, especially since he claims to be all about good public policy without regard to the party. And so I want to say I’m not sure which podcast you’re listening to. Because we’ve spent a lot of time talking about the virtues of conservative judges, and how in some instances that it’s helpful about how a textual interpretation can be useful to us. We’ve also called out how textual interpretations can be bad for us. And we’ve given more airtime to conservative, Justice Scalia than any other justice. I mean, we’ve only done token attention to any other justice. And I’ve given Justice Scalia a lot of credit for his stance, his steadfast support of the Confrontation Clause. So this, this is in the context of the Confrontation Clause and he’s got this clip we’re playing tonight.

Justice Scalia Audio Clip 03:33
And also a case whose name I always forget, that restored the Confrontation Clause to its original meaning. Well, I’ll talk about that, because it says something about… some people think that when when you depart from the original meaning of the Constitution, you’re oh, you’re always creating greater freedom, you know, there’s no harm done. That’s not true. I mean, if you ignore the original meaning of the Constitution, sometimes you’ll create more freedom, sometimes you’ll eliminate prior ones. And what we had done with the Confrontation Clause, which guarantees in all criminal prosecutions, that the accused shall enjoy the right to confront the witnesses. It meant you had to bring the witnesses into court. You could not use hearsay, you could not bring somebody come in and say, Well, I wasn’t there, but Joe was there. And he told me… no, you can’t do it. You have to have the opportunity to cross examine the person who’s sending you to prison. About, what 25 years ago, we just kicked that aside and said in a case called United States v. Roberts, that all the Confrontation Clause means is that any hearsay you introduce has to be reliable hearsay Well, I wrote the opinion that overruled that. Maybe what about eight years ago or so? And so the confrontation clause now has the meaning it had at the beginning. I’m very proud of that opinion.

Andy 05:05
I have to tell you Larry, and I know I’ve said this before, I’m somewhat of a Scalia fanboy kinda like you are. He’s, he’s entertaining. He’s, you know, he cracked a little joke in there. And his logic, whether you agree with it or not, it would be really hard to sit down with him and end up not agreeing with his logic, you could disagree with the outcome, but there would be no way to disagree with his logic leading up to it all.

Larry 05:30
If you buy into his judicial philosophy, it’s completely logical. And that’s what I tell people about the law. The other the other people who have a different opinion of the law, they can put forth very logical arguments also. But in terms of the Confrontation Clause, there has not been a stronger advocate that I can think of than he was. And it’s the victims’ advocates, and the law enforcement industrial complex, who have all but dismantled that and made it impossible for you to have confrontation. They bring in people who can testify to what their interpretation of what the accuser has said, because it revictimizes the person making the accusation that’s trying to send you to prison. So we let another person come in to the case that’s not a party to the case, and they get to try to send you to prison on behalf of that person.

Andy 06:28
I’ve mentioned before that I host like a skeptics group. And from that point of view, it has everything to do with how do you prove, how do you have evidence for, for something to be a thing. And that would carry right over into court that if someone just says Well, I saw my third cousin’s nephew’s, you know, what, you know, four or five persons down the chain? Like how do you have any level of confidence so that evidence would be real, you would have to have the source, if possible, be the witness to work through to be able to confront in court? I don’t see any other way around that.

Larry 07:05
Oh, but it victimizes them again, they should not have to live through that trauma of what’s happened to them and have to tell it in open court. I don’t know why you can’t understand that.

Andy 07:15
It’s because I have a small brain.

Larry 07:18
So well, I’m with Scalia, yeah, you’re trying to put a person in a cage. And that’s the terminology that I use. If you’re going to try to put a person in a cage, you bear the burden of showing by evidence that’s beyond a reasonable doubt. And I have a reasonable doubt, if someone else comes in and says it’s their opinion that this happened, I want to hear from you. You’re the one that wants the person in prison.

Andy 07:49
I think everything ends up to be presented from the person that had the wrong done to them without any sort of consideration for the person that is accused. And so everything then gets prioritized to making that person whole in some form or fashion. And with that, like I said, without any concern for the person that gets accused, whether they’re innocent or guilty, we need our pound of flesh, and we’re going to take care of this and off you go.

Larry 08:20
But see unfortunately, that gets away from the Constitution. The presumption is that person is accused did absolutely nothing wrong.

Andy 08:30
All right, and then anything else…?

Larry 08:32
Remember that. The presumption is is that they’re innocent.

Andy 08:38
Yes, well, let me let me throw this at you. We covered something recently. I know we didn’t cover it. But I saw an article from a local news outlet here that was talking about the jail, the local jail is overcrowded. And I’ll be able to relate this back. And these are as far as, correct me if I’m wron, jail is predominantly for pretrial kind of people. So, we could then presume that they’re innocent until proven guilty. They’re being held in jail, where you have a raging virus, we could send them home. But we and that particular unit because they when they go and they have like a 10 or 14 day quarantine before they put them into general population, that dorm unit is overcrowded. And I’m like we do have other solutions to this. And we could presume they’re innocent, not all of them, maybe, you know, higher profile cases. But if you got locked up for check kiting or something like that, we can probably send you home, either on your own recognizance, or something of a leg monitor, whatever you want to do, but we don’t have to leave them locked up if they’re presumed to be innocent.

Larry 09:45
That is correct. But we have this fixation on doing that because we really don’t believe in the presumption of innocence. The primary consideration should be can we get this person back before the court if we release them. And then the secondary consideration would be what would be their propensity to engage in criminality that would jeopardize the community. But see when you get into predictive behavior, that that’s where it’s really, really, really risky. Because you can easily predict someone, because they’re accused of something violent, that they will be violent. But if they have, if you’ve if they’ve never been convicted of any crime of violence, then to me that’s, that’s really, really dangerous to predict future violence based on this accusation. And we get into we get into holding people because of what they might do. And it’s less about whether they’ll appear in court, but about what they might do. That’s the danger of these pretrial detention statutes, which we just recently, in the last few years got in this state whereby constitutional amendment, a person can be held without bond. And they have these predictive models, and they say that you get points. And if you get too many points, then the state moves for pretrial detention.

Andy 11:02
I gotcha. Anything else on Scalia before we move on to the ranting and raving voicemail from our existing GameStop fan?

Larry 11:13
Oh, I just think that, that it’s unfortunate that people don’t realize that we we have given the conservatives credit for a lot of things.

Andy 11:21
I think we cover the conservatives far more than we cover liberals.

Larry 11:25
We’ve criticized liberals for a lot of things. So I don’t know where that comes from. But anyway, just wanted to bring that up. But we should start bringing Scalia back more often because he is…

Andy 11:38
I enjoy him lot. And I’ll just set this up real quick. The person that has left a voicemail several times time talking about GameStop, blah, blah, blah, not part of Registry Matters. I know. We did a long deep dive whatever for a Patreon extra that came out earlier in the week. So he’s calling to rant and rave, talking about you people are dodging questions.

Patron Voicemail 11:57
Hey, Larry, and Andy. It’s me again, I appreciate the patrons special you people did last week about short sells and short squeezes. But I have to wonder why Larry dodge the question I asked specifically about if I should sell my GameStop stock. I paid only $9.13 a share for it. And it closed the day before YouTube recorded at 325. Which is why I sent that first question in. And then I noticed yesterday it closed at $63.08, which is like an 81% drop in stock price. And now I’m screwed. Because it probably won’t ever go back to 325 or 483, which was the all time high. So hopefully you guys can figure out what’s going on. And as always fyp

Andy 12:46
What did you know what to close that yesterday by chance?

Larry 12:50
It was about $62. And the reason why we didn’t, first of all that that was that was a joke that we even did that episode because it was just all over the financial news and even the regular general news about the manipulation with Robin Hood and the online, the cartel that formed to to use the rules that the big boys had made against the big guys. And we did that just simply for fun. But if people have interested investments, they should go back and listen to that episode. But the thing is, we can’t give personalized advice. So, I would never tell a person to sell a stock personally. But what I could say is that if you’ve bought something at $9, and you’ve had it go up to $300 or $400. And you cannot force yourself to sell it, that you’re setting yourself up for disappointment. And even at $60, if you paid $9 for it, that’s a that’s a significant gain. I mean, people look to make 20% in a year, and they’re happy. And if you’re up since the first year, if you’re up from nine to 60, what is that a sixfold increase? If you’re up 600%, I mean, what more do you want?

Andy 14:04
Yeah. And but you could have you could have gotten out at if you bought in at nine bucks, and you could have gotten out of $300. That’s a really good, that’s a really good

Larry 14:13
It is indeed, but the thing, the topic was short squeezes and we don’t know that the short squeeze is over. You need to talk to a financial advisor and see if they can tell you how much short interest is still in the stock and it could go up again. But in terms of that particular company, I don’t see a lot of value. And we went into that in a deeper dive. So if you’re holding on to that stock, you ought to consult with your financial advisor about how much longer you should hold it.

Andy 14:42
And how do people get that that Patreon extra?

Larry 14:46
oh they go to patreon.com and they subscribe. Become a patron at a dollar and any other level all the way up – what’s the latest level you put up there? Have you put the $1,400 on there for the latest proposal for stimulus?

Andy 15:00
No, I should update to have a $1400 “just send us your stimulus check” level I should do that. But you know, patreon.com/registrymatters by the way.

Larry 15:13
and $1.00 will get you access to all of those.

Andy 15:18
Very good. All right, well, now I’m going to read scratchy penmanship. Here we go.

Listener Question
Dear friends, are all persons convicted of federal sexual offences considered sexually violent? I was convicted of a non-contact sexual offense possession of child porn. There is nothing in the pre-sentence investigation report to indicate or even hint that I committed a contact offense. The matter was thoroughly investigated by federal and state authorities confirming my own clear conscience that I never molested a child. Yet the prosecutor used the term sexually violent I can’t remember if the word predator was used. But the judge on the day I was sentenced, as he addressed the matter of whether I would be allowed to self-surrender or be immediately remanded and transported into custody. I was allowed to self-surrender. Yeah, I was allowed to self-surrender, not because I wasn’t found to be sexually violent, but because of my medical condition. The judge found it appropriate because of my health to make an exception to the rule that sexually violent defendants be remanded into custody immediately upon sentencing. I thought it might be helpful for to have this matter explained. Larry, you are the great explainer of all things legal and PFR-related, so ding ding, go for it.

Larry 16:38
Well, I wish I could give him more comfort, I’m glad that he did not get taken into custody immediately. But unfortunately, the legislatures across the country and the US Congress has decided that things are violent. And they’ve turned things violent where there actually isn’t any violence. Now, the way they get there is because some child porn does reflect violence. You’ll see a child gagged and bound and all sorts of things that really is not appropriate to talk about in great detail. But there is violence in the production of porn. Without knowing the specifics of his case, I’m assuming that there was nothing, that that wasn’t the case. That his images that he possessed were not like that. But they put this blanket thing. And Bill O’Reilly former, Fox News hosts at talk show that fought so hard to get the Adam Walsh Act passed so hard. He had a debate one time he argued with a lady that was trying to tell him that many sex crimes are labeled violent are not violent. And they have been successful in convincing people that if you do something that’s illegal, and it’s of a sexual has any sexual component to it, that that’s somehow violent, and I don’t know how to undo that. And fortunately for him, he was allowed to self-surrender. But we have so many things mislabeled. And rather than going the other direction, I see more and more statutory proposals and legislators to add more and more things to the to the violent list, you know, this this crime will be added to the list of sexually violent offenses, and yet there’s no violence.

Andy 18:19
A person in chat says that they self-surrendered and there were no health issues. And that’s also fed charges. I guess that would come to different judges, different timeframes. I don’t want to say different jurisdictions, because fed would be fed, all fed, or do I have that wrong?

Larry 18:36
You do. There is some variation on the the jurisdictions in terms of traditions that have sprung up. If you were to go into to the federal court system in Alabama, although it’s part of US federal court system, it’d be highly unlikely that a that a person would get appointed to the bench that would be similar to who would get appointed from Pelosi’s district. And that temperament and the community standards do, even though these judges are protected from the angry mob at the federal level. They do live in these communities. And they do have families in these committees and they are sensitive to community standards. And so it would not be uncommon that you would have some variation in self-surrender and also the impact of available, the marshals have to help you when you’re taken into custody, pretrial, the marshals have to help you and then and while they’re waiting for a slot to open up in the Bureau of Prisons, the marshals have to house you. And in some places, there’s less available housing for pretrial detention, and you end up with a few more people being released to pretrial simply because there’s just not the feasibility of as much pretrial detention.

Andy 19:46
Okey dokey, anything else? We can move on to the second one?

Larry 19:51
Oh, let’s do the second one.

Listener Question
To whom it may concern. I recently saw your ad in prison legal news. I’ve been incarcerated at Florence McClure Women’s Correctional Center in Las Vegas, Nevada for over two years. I was convicted in October of 2018 of sexual misconduct between a school employee and a pupil. This is a category C felony in Nevada, however, it’s considered a violent crime. So, I received no time off of my sentence. I am serving eight to 20 years, four consecutive two to five year sentences. The age of consent in Nevada is 16. And my victims were over the age of consent. I know many states are currently looking at the statute and revising it. In Nevada, the statute is NRS 201.540. I am interested in anything you can share with me. I am appealing my case currently at the district court, a habeas for ineffective counsel, but I’m still awaiting a court date. I look forward to hearing from you. Sincerely…

Andy 20:52
Why did you put this in here? It’s just almost like someone just writing just to tell us their situation.

Larry 20:54
I put it in here because it ties back to the previous question about violence. This is a case where clearly there is absolutely… now we take these questions at face value. We don’t know where she, we don’t know whether she… we’re assuming, making an assumption that they were male students. And we’re making the assumption that she did not tie them down and take advantage of them against their will. Now, it could have been female students, but I’m assuming that that she would not have overpowered the male students and that this was consensual. So I’m doubting there’s anything that would be qualified or remotely, would resemble violence. But yet, the good lawmakers in Nevada have decided to succumb to the pressure of making the label violent because of the authority. There’s a there’s a power mismatch there is whether or not you want to acknowledge it, a student in a school setting is subject to power. And again, she doesn’t tell us if she taught these peoples or if they just happen to attend the school there. But there is a power, but power doesn’t translate to violence. If you want to get right down to it, she might have inappropriately used her position to coerce or persuade. But that does not make her a violent criminal. But yet, she’s serving how much time in prison? I’m serving eight to 20, 4 consecutive two to five years. So we’ve got a woman who’s going to be in prison for at least eight years.

Andy 22:30
And and it could be like completely variable, she will even if she got the lowest on one of them, the other ones could somehow have different circumstances associated with them. And so but you know, it could be 12 years, because one of them did two years and one of them did five. Like, it could be all over the map, depending on how each one is looked at.

Larry 22:49
That’s true, but she’s going to to serve a minimum of eight years because they’re consecutive, so she can’t get out any less than eight years. Now, I put it in for the other part of it, which is the ineffective assistance of counsel. I’m dubious about that. And I know I’m supposed to be upbeat, but I’m dubious about that. Because… let me set it up. The lawyer didn’t make the statute, the Nevada revised statute 201.540, which I did not pull prior to the podcast. But they didn’t make that statute. And the lawyer gets handed the statute book. And this is what the state accused her of doing. The lawyer’s job was to look Nevada revised statute 201.540 and figure out if the evidence that they had would be sufficient to meet the elements that are required in that statute. What if the elements are simply that, that a school employee has sex with a person who’s under the age of 18. And I don’t know if it’s 18, 19, or whatever age they’ve had. But if they put that in there, if they’ve got the evidence to show that she did, in fact, have sex with a student under that age, then the elements are met. So, what is the lawyer supposed to do? The lawyer can say, well, we can take it to trial, but they have overwhelming evidence. I mean, they have overwhelming evidence. They actually, unbeknownst to you, they had a camera when you went into the closet right after right after class that day. And then they saw you coming out panting and putting your clothes back on and blah, blah, blah, they have been they have the evidence. So what is the lawyer supposed to do? Let’s roll the dice and the potential exposure might be 50 or 60 years, you know, whatever the maximum would be, and stack those consecutively. So I don’t see the ineffective assistance of counsel here. So the next question would be should the lawyer have asserted a constitutional challenge? I can’t think of anything that comes to blush about what is unconstitutional about a statute that makes the age of consent higher for a person who has authority. So I don’t I don’t see that and and then with her sentence, although I think it’s outrageous the eight years, I think I mean, it’s a total waste of her productive potential, the best punishment for her is to revoke her teaching license. And say that you can’t, you clearly have not been able to manage your urges in this environment, but eight years in prison at 30,000 a year, 40,000 a year, plus the damage that they’re going to do to her for the rest of her life, because she’ll never be able to hold a decent job. That is way overkill. But having said that, those are decisions that are within the purview of the Nevada Legislature. The courts do not get to sit there and say, well, you know, we would prefer that, that the statute carry a different penalty structure. Those robes do not entitle those people who wear those robes to adjust the law to their liking. So I’m dubious on her… now I’m hoping for her. But I’m assuming she’s wanting an honest answer and not what she’d like to hear. I don’t see that this is ineffective assistance of counsel at first blush. And I think it’s I think it’s an outrageous sentence. And I’m sorry.

Andy 26:13
And to move this over to an advocacy point of view. I’ve never heard of an affiliate and any sort of advocacy group in Nevada just be my ignorance, but at least nothing of any sort of substance, not like Florida Action Committee or FAIR or something like that. Is there anybody in Nevada in this space helping our side?

Larry 26:36
At the moment, I don’t think there is. I think there has been, they were fighting their, that version, that state had their own version of the Walsh Act, and, and it stayed in court for years, both in state and federal court. And ultimately, it was declared to be constitutional, and it’s in operation but in terms of an advocacy, I don’t believe there’s an organized advocacy to my recollection and this state. And, but even if there were these, these bills are hard to kill. When you go into, when a lawmaker comes in with a proposal that the victims’ advocates and the prosecution apparatus has advocated for, to say that we need to do something about about sexual exploitation of our students. Try voting against that and see what happens to your political career. I mean, we can’t we, we can’t have our schools turn into a sex shop where people get off scot free and nothing happens to them. I mean, you couldn’t vote against that. That’s the type of thing you have to bottle it up in committee, and make sure it never gets to the floor. Because if it does, it’s going to pass, and I don’t care what state it is, it’s gonna pass.

Andy 27:45
Oh, okay. Yeah, I know. It’s all gonna pass unless there’s somebody there wrecking trains, right?

Larry 27:52
Yep. And that’s what that’s what it takes is you need to wreck trains.

Andy 27:56
Okay, let’s move over to some level of hate mail. And I guess this is a somehow the voice of NARSOL I guess we could say, this is for handling this issue. We’re gonna have a quick little segment here with the executive director of NARSOL, who is the Brenda Jones mighty person that she has, she’s awesome. And we received a question, I guess NARSOL received this question and kind of like, not quite hate mail, maybe. But it reads:

Listener Question
I’m in prison. And I’ve been writing to NARSOL for several months seeking to organize people in prison to help fight this battle. So far, NARSOL has sent me responses that seem to overlook the vast amount of talent sitting idle in prison. Why is it that NARSOL is so close minded? This seems to be a failure of the NARSOLleadership.

Andy 28:53
Brenda, I think you are the leadership, Larry, you are also part of the leadership. And again, ding, ding, go at it. Hi, Brenda, thank you for coming on down short notice.

Brenda 28:58
Yeah, I was hearing about this letter earlier. And the response that I just need to make is that, certainly, we’re very aware that there’s a lot of great talent, sitting there in prison. The struggle that we have, of course, is that it’s hard to get that talent utilized behind bars. You know, it’s as frustrating for us as it is for them. But the kind of things that we need doing include things like researching and responding to legislation, it might involve contacting lawmakers, but we don’t have letter writing camp. We don’t do that. There’s no legal analysis that’s really very practical to do on the inside because as everybody knows, prison libraries, if they’ve got law books at all are going to be woefully out of date. That’s why people usually contact us from prison asking for more information. So, we’re kind of left with the only things really that people on the inside, effectively can do that we are aware of, are get their loved ones to get involved on their behalf. Those they have on the outside. They can send, they can send articles to the Digest, if they want to do do some researching and writing on current events, and they send articles to the Digest, they’re welcome to do that. They’ve got access to CorrLinks or some other email type system, they can certainly send us something that way. But otherwise, you know, they can write it. The downside, of course, is if they can’t type it, we have to, but you know, we could work with them on that. You know, and the other thing would be to just, you know, if they have another great idea that they were just missing out on, write it up, clearly, don’t just say I’ve got an idea, you’re not listening. Write up the idea and send it maybe we can get that published in the Digest. And we can see if anybody else wants to help take it and run with it. The problem that we often have is that there are a lot of people with really great ideas. And sometimes we hear those same ideas about every year or every month. And we’ve tried that, and they don’t work as well as the great idea sounds like, or, it’s a great idea, but we have nobody to actually run the project. And, and it’s hard to run a project from behind the walls. It’s frustrating, but that’s the reality. Larry, you got any extra thoughts on that?

Larry 31:43
I think you’ve done a good job of explaining it. And, and I do agree that there’s a lot of talent in prisons, particularly in this area of offending. This runs across the entire gamut of, of our socioeconomic classes, you know, you have people that are very wealthy, from what’s his name from subway, you know, to people who, who are practically destitute. But, but there are people who’ve had very successful jobs for successful careers, and they have the type of talents we need. We need people who can do things. But the limitations of the prison make that impossible. And then what happens after they get out of prison is that they have all these barriers erected by the supervising authorities in terms of Felon Association. And therefore, out of fear, most people read that Felon Association to include a professional relationship. I don’t read it that way. But I’m not the one that’s going to be going to prison if I’m wrong. And if you happen to be collaborating on a project with another person who has a felony conviction, then we run into problems with a revocation and we’re not trying to promote things that will send people back to prison, because prison is such a horrible place that we want you out, not in. And so, try to take that into consideration, that some of the stuff of organizing prisoners would tend to backfire. Now in prison, you’re already there. So they, you know, they could always send you in the hole and take your privileges away. And which I’ve heard of them doing that, in terms of reduction in privileges. But if you get out of prison, and you get involved in advocacy, there’s also the fear and threat of sanctions that may be imposed. So we worry about that a lot as well.

Brenda 33:31
We definitely, and we’ve encountered this in a number of times on the outside Larry, you’re right, which is that we, we have made a point now of people wanting to volunteer, we say like, I know, you don’t like this, but you’ve got to get your permission from your PO, if you’re gonna do at least any kind of, you know, front facing role, we need to know that your PO knows that you are working with us and that it’s okay. And we’ve had sometimes they say, oops, no, I can’t or they’ll sometimes they’ll say yeah, it’s fine with my PO. But then the PO kicks it upstairs, and the next thing you know, the people upstairs say heck no. And they just disappear because they have to or get in trouble. You know, and so it’s a real struggle even on the outside. You’re absolutely right.

Andy 34:25
I would also just one as another volunteer though, the amount of different projects and different directions that people are going, there’s not enough bandwidth for everyone to get involved in all the things to go all the directions everyone wants us to go.

Brenda 34:39
Yeah, exactly. Is that that’s kind of the point is is that you know that you can have the best ideas in the world and and when you’re sitting in prison, and I know this from my own loved one who spent eight and a half years there. You get lots of great ideas and you got plenty of time to sit and think about them and put them all together. But you can’t launch them because you’re on the wrong side of the fence, right? You know, and meanwhile, we’re on the outside, trying to get done what we’re already trying to get done. And we can’t add a new project, unless we have people to run it. Even if it’s a wonderful project, we just can’t. So that’s the struggle, because we’re all volunteers. You know, it’s not like we can just go out and hire, you know, five, new lackeys to go take care of whatever it is.

Andy 35:22
You can’t just requisition another $40,000 salary for yet another person to do these tasks?

Brenda 35:28
What 40,000 salary? Is there a $40,000 salary somewhere? I hadn’t heard about.

Andy 35:35
oh, my bad. Sorry.

Brenda 35:38
That’s more than I make in my real day job. I don’t get paid for this one.

Andy 35:44
I was poking fun at that one.

Brenda 35:45
I know you were, and I’m running with it.

Andy 35:50
Anything else?

Brenda 35:52
Not from me.

Andy 35:54
Was there anything else you wanted to cover? Brenda?

Larry 35:57
I was I was just gonna say that I really do, I empathize. And I appreciate the desire to be helpful. And the way they the way they would be analyzing it from prison, is that there’s so much that needs to be done. And if you people would just be doing some of these things, then we would be moving further toward our common goals. And we agree. But unfortunately, the resources are the limitation and the capacity that you have in prison to help is very, very limited. But please send us more ideas about how you can help particularly. The person who wrote this is going to get a copy of this transcript.

Andy 36:39
Brenda, thank you so much for coming by. I personally would just always thank you, I think you’re awesome. And I appreciate all that you do. And I mean that very sincerely, from the bottom of my heart.

Brenda 36:49
Love you guys. Take care.

Andy 36:51
Appreciate it. Ready to be a part of Registry Matters? Get links at registrymatters.co. If you need to be discreet about it, contact them by email registrymatterscast@gmail.com. You can call or text a ransom message to (747)227-4477. Wanna 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 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. From there, Larry, we have to oh, boy, the feature segment like interstate compacts. I’m just gonna say again? Seriously, which I know every time we bring this up. I’m always like, you throw me some curveball. And I’m like, Oh, I thought I knew this but apparently, I don’t. So apparently somebody else has asked another question about it. And we’re going to go over interstate compacts again, from a different angle from a different bet. Not that we’re going to rehash and reinvent the wheel all over again. So to set this up, this question is about interstate probation compact transfers.

Listener Question
I’ve heard you people talk about it on previous episodes. But what you say does not comport with what they actually do. My son was in New Mexico serving as Colorado parolee and violated. The violations were relatively minor, yet he was arrested and sent back to Colorado. Larry has used the term probable cause hearing and says that a person on Compact is entitled to a probable cause hearing. My son did not get such a hearing. He sat in MDC for weeks. And eventually he was asked if he wanted to waive extradition to Colorado. If such a right exists, why is it that nobody I’ve ever heard of gets one of these hearings? I paid a private attorney $3,500 bucks for him to advise my son to waive his extradition. And literally there there’s somebody in chat. I don’t know, I never really got into all the details. He’s sitting here in chat with us. He paid 20 grand to get extradited back to Georgia, which sounds like a really buttload amount of money to just be like, well, I guess I’ll get back on the bus and go back to where I came from.

Larry 39:17
Well, why didn’t he pay me $19,500?

Andy 39:23
I tell you, I we were doing the podcast when all that happened. And he just vanished. And I was like, Well, I guess he just said fyp to me, and we stopped talking but turns out he sat in the county jail wherever it was for a year. And I don’t know, it never dawned on me to try and figure out where he was because I’m an idiot.

Larry 39:38
Well, I will guarantee you this. That even though I would not have been licensed to practice law, I will for $19,500 I could have achieved the same result he got.

Andy 39:54
Right. Totally. And and I would completely argue that you could have done him significantly better for way less too.

Larry 40:02
So that’s, when I talk about college coaching, and we’re going off topic on a tangent, but I’m making an analogy. People say that, you know, our athletics here in the state of division one level are so horrible. We don’t, we don’t win anything. And they keep wanting to pay the head coaches more and more and more, because we’re gonna magically rise to be a competitive division one level. So they bring in these high paid coaches, and they go 0-11, 0-12 in football. And I tell him Look, so you’ve paid all this money for these high price coaches, and they didn’t win a single game. Well, I’ll do the job, and I’ll take 70% of what you paid the high price coach, and I guarantee you that I can go 0-12. I will not do any worse. Why wouldn’t you want to pay me 50% or 70%, of what you paid the high price coach because I can promise you the same result that that person got? Well, same thing with this case here. For less than $20,000 could have gotten him the same extradition to Georgia. But there are several questions here. But before I even get into this, it’s very difficult for a person forced to register. That’s what your PFR stands for, for any new listeners, for them to be accepted to interstate compact. Once you go through all those hurdles, it’s really bad to get set back on some whimsical thing. And there’s a special rule for people who like to take notes, the interstate compact has a benchbook, and there’s rules rule 3.103-3 makes it difficult because the person is not allowed to go to the to the state, the receiving state. They’re not allowed to leave the sending state until their residence has been approved. And that trips up a whole lot of people, particularly people who, who get a probated sentence from the beginning. And they think they’re going to just get in their car and head back to their state and live where they lived before they went and did their plea. And they’re trapped him in the state where they did the plea. The lawyers never tell them about that. But I’m assuming you don’t want to talk about that. But that’s just a cautionary note. So we can talk about that on another podcast. But you’re wanting to know about this probable cause thing, right?

Andy 42:25
Totally Yes. Which as I understand it is waving for extradition just means go back where you people came from. But this probable cause hearing gives you at least some level of due process, not like a court system level of due process. But we’ve discussed this before. So can you explain what provisions in the compact you’re referring to about a probable cause hearing, then we can come back to these rules later. If we figure out we need to.

Larry 42:53
So well, the so do you want to know what the rule number is? Or what is a probable cause hearing?

Andy 42:58
We need to go over what a probable cause hearing?

Larry 43:01
Well, when when you have a probable cause hearing, you have some sort of a tribunal, it may be an administrative law judge, it may be an administrative hearing officer by the department of corrections in that state. But there’s some level of due process where you are afforded the opportunity to be notified of what it is that they’re alleging violations were, who the witnesses will be that will attest to those violations, and you will be allowed to cross examine those witnesses. And I say you, and it’s likely going to be your counsel. But you’re allowed to have this proceeding take place with a neutral, detached, supposedly neutral and detached hearing officer that renders a decision at the end of the conclusion of closing of evidence of whether there is enough evidence to establish probable cause, which is a fairly low threshold. But before you before you get on the bus, and you go back to a state that may be many hundreds or over 1000 miles away from where you’re being supervised, you might be able to extinguish this probation or parole violation in that state if they were to find no probable cause. So that’s why you want these probable cause hearings to take place, because you may end up avoiding going back to the state that convicted you if you have a good robust probable cause hearing.

Andy 44:28
And what is the rule number for it? I’m making noises just because I’m like trying to process and follow it. And I’m going to try really hard to formulate intelligent questions for you. So, what is the rule number?

Larry 44:39
If you’re in interstate compact the rule is 5.108, and the origin of this rule is two Supreme Court cases that happened in 1972 and 1973. And for the legal beagles out there, the cases were Gagnon v. Scarpelli. And that was 411 United States Reports at page 778. And the other one is Morrissey v. Brewer, which is 408 United States reports at page 471. And, and, and the brewer, Morrissey v. Brewer came out in ’72 and Gagnon came out in ‘73. And this is a long established, right. This is not something that’s just come to be in recent, this is a long-established thing that if you’re if you’re being supervised by another state, and there’s an attempt to revoke your state imposed supervision, you have the right to a probable cause hearing at the place where the violation occurred. And I’m disappointed that that my state doesn’t apparently follow that process, because this person was very convincing that that all she did was spend a whole bunch of money. And then the lawyer eventually came in and said, Just sign this document, go back to Colorado and get it straightened out. Well, it got straightened out all right, they revoked his supervision

Andy 46:01
revoking the the supervision sounds kind of crappy, that would be aggressive. So can you go over the different rules that are provided in the ICOTS stuff?

Larry 46:14
So Well, now, we need to set up about the difference in extradition. You’ve already when you when your supervised in another state, you’ve already signed a waiver of extradition. I don’t, I don’t know why this comes up over and over again, other than the fact that the courts are not properly trained. And there’s no established process for bringing these people into the correct system, which would be a probable cause proceeding. But so you’ve got people sitting in jails, and sometimes they go unnoticed for a long period of time, because there’s no local case. They were brought in, in our state, and this is what we’re talking about in our state, you don’t need a warrant to arrest a person under supervision here. You need to issue, the probation officer issuess a PV hold under their own authority. So you’re booked on the PV hold. And since there’s no case number attached to you, when you go into the to the jail, what’s happened is, what happens is the person is sitting in jail. They’re in a PV hold number, if you look them up on the MDC, which is the, which is the large county that are Albuquerque is, Bernalillo. County, you look up on the jail, they’ll say, rather than having a case number, they’ll have a PV hold number. And the persons being held, while the jail is happy as a lark, because they’re getting to bill the corrections department for a daily room and board charge for housing the inmate. So they’re not in a hurry to have anything happen, because that’s revenue. There’s no case. So there’s no there’s no judicial proceeding, that person’s not going to get on a bus in normal times and be carried to court or put on a monitor, visual monitor, which they do these days, they’re not going to be taken before any type of procedure. So they just sit and sit.

Andy 47:55
I’m gonna also just suspect that they’re that that the the employees there, it’s somewhat rare for an interstate compact person to be put on a PV hold. So it’s not even something that they’re used to dealing with and then they just fall by the wayside.

Larry 48:09
Well, it’s more common than you think. But there’s no incentive to do anything about it. The are jails happy they’re getting lots of money. And the the, the judges are not aware of it, because they’re so case number attached to them. And the lawyers are, like this lawyer, they hear the term extradition. And and they know, with an extradition proceeding, that the chances of you of you preventing an extradition are very slim, because the only issue for examination are the issues for examination are “Are you the person who’s who’s who’s being sought?” And it’s kind of like the you are Andy right?

Andy 48:49
Last time I checked.

Larry 48:52
Yeah. Well, if you say you’re not then they they, they identify you through through various means, including fingerprints and DNA, and they say well actually you are this person that that state wants. And then the other component of the examination in an extradition is has the paperwork been done correctly? And if you waive all that, it doesn’t matter about those things but if you contest extradition, that’s the scope of the inquiry. You can’t get into whether or not you did the violations, they’ll tell you what that’s a matter for the sentencing court to determine. But if you get your probable cause hearing, that’s a matter for the hearing officer, be it judicial or be it non judicial, that’s where the hearing officer determine if you’ve reached that level of probable cause before you have to be sent back to the state that may be a long distance away, and the witnesses might not help you. If you get set back to Maine, and you’re being supervised in New Mexico, very few witnesses are going to want to travel on their dime to help you.

Andy 49:48
I got it man I’m there I’m there for you. Travel all across the whole world. man I’m there for you. We’ll charter a plane.

Larry 49:55
So you end up with your witnesses if you had any that would have been beneficial that the PO were to accuse you of something that really wasn’t yours, we found booze in the house. And we’ve told him about the booze and the person just had a birthday the night before that actually owns the house. And that person is willing to testify that it was their booze that you had nothing to do with it. I worked that that evening until the party was almost over, well, that person is their credible witness, but who’s going to pay to get them to remain so they can tell that story. But if that came into a probable cause, hearing it, you might be able to extinguish that without ever going back to Maine.

Andy 50:34
Sure, using the booze example, hey, that’s my girlfriend’s, my friends came over, we had some we watched a movie, they left some beer, like they could at least, you know, it would be, that’s not hearsay. But you’re just taking their word at face value that hey, look, no, that is nmy beer. It is not John Doe’s. The person being accused of this probation violation can at least do that?

Larry 50:54
That is correct. And it might be enough for a truly neutral hearing officer. The neutral hearing, the neutral hearing officer might say, Well, yes, you technically were in violation, because it was wasn’t supposed to be in your dwelling. But under the circumstances, we can see that you were not a consumer of the alcohol. And we’re going to give you a warning. And we’re going to give you 30 days on home confinement, to make sure that your household understands that you have these conditions you must abide by. And if you can’t abide by them, you need to find another arrangement to live. But that would be the type of thing that could be imposed. At the end of the hearing, the officer could say, Yep, we found that he that he actually was in the presence of alcohol, but there was no intent to be in the presence. So therefore, there’s no need for this person to have to go fight a probation violation revocation proceeding. And you want those hearings, folks, you want those hearings do not waive extradition. First of all, you’ve already done it. And second of all, it doesn’t serve your interests to go back to the state that sentenced you because once you get there, they’re going to assume in order to for you to be there, you have to admit one or more of the violations in order to waive your due process. That’s the way the rule reads, you know, to accept a waiver of your due process, you have to admit a violation. At least one. Why would you want to do that?

Andy 52:16
I don’t know. I’m reading from the person in chat that I’m personal friends with who went through this. He said they never told me which way the probable cause hearing turned out with. They just opened the door one day and they said, come on, pack up your going and they sent him back to where he came from without he paid for an attorney. He doesn’t know how the, the the hearing turned out or anything and they just sent him back. That sounds very kabooky to me.

Larry 52:47
I think we can conclude how the hearing came out. But what but what his attorney that he paid $14,275 should have given him… there’s a report required at the end of the probable cause hearing, I forget the number of days, but that rule provides that the hearing officer shall provide a written report to the sending state with conclusions of whether they found probable cause or not. And if they found probable cause, what recommendations they have? They could recommend that that supervision continue, that we can deal with this level of violation here with our sanctions that we can impose, or they can wait for further direction from from the sending state. So what did that report say? How much did you pay the lawyer?

Andy 53:29
He paid $20,000

Larry 53:32
And he never got anything from the lawyer in terms of that? That sounds like the lawyer didn’t know the process at all. And I would have done it for 19. I’ll even cut off a full 1,000.

Andy 53:43
I wish we could go back in time a couple years because then they made him max out. It’s a kind of a crap story, to be honest with you. But I don’t know that being out on parole versus the probation set. I don’t know that he was any better. That’s a complete, complete tangent that we won’t go into now. Larry, I am lost where we are in the outline. Did we cover the the small bullet points, the A’s, the B’s and the C’s? Before we move on?

Larry 54:08
Well, mostly we did. Yes. (Andy: Okay. All right.) But in this particular case, the person waived extradition and returned to Colorado. And I’m assuming they admitted it at least one of the violations and Colorado revoked him.

Andy 54:21
What’s wrong with if you waive it and you head back to where you came from? What is really so wrong with that?

Larry 54:28
Well, what’s wrong with it is that there may have not been enough, had he got his due process in New Mexico, there may have not been enough for Colorado to revoke. And the pressure, the scales change when you’re before a judge in Colorado. And the judge is assuming that you’ve got had you’ve had your due process, and you’ve admitted, or you’ve been found that probable cause exists. At that point, the Colorado people start offering you a deal. Why don’t you just go ahead and quit fighting this, and we’ll give you x amount of time and get this over with. And this case it was board. So I have a feeling he was dealing with a board rather than a judge. But if it was probation, you’d be, he would have been dealing with a judge. And the prosecution would have offered him Well, we’ll give you 12 months in prison or 18 months in prison. And let’s just end this whole thing. And you’re at a power disadvantage at that point. I mean, you’re always at a power disadvantage, but you’re really screwed when you’re sitting in jail and probable cause has already been determined.

Andy 55:34
In the in the in the hearing, though, you have the opportunity, but you just said something that I hadn’t really considered. So depending on the the level of infraction, I guess, determines whether you have whether you go before a judge versus what, did you say something like a law review? What did you I didn’t catch the term used a minute ago?

Larry 55:55
I’m saying in terms of the penalty for the infraction. You can have an infraction that you actually, in fact did do. And the hearing officer at the probable cause level could find that it doesn’t rise to the level. See the standard they’re looking at is if this infraction had happened to one of our sentenced offenders here, would that result in a request for revocation here? And if they could conclude, yes, he actually did drink some booze, but we don’t normally request revocation for that. So they could tell Colorado, Yep. He admitted to drinking. Sure did. But that’s not normally where we request for supervision. So therefore, our recommendation is that we that we use in house sanctions here, and Colorado could say fine, or they could or Colorado could say no, that we consider that a very serious violation. And we want him back. And it’s ultimately Colorado’s decision.

Andy 56:50
And what would be, what are like the quote unquote, rights? Are these the same rights that I’m thinking of, like constitutional rights? What are this? What are the rights that you have following a probable cause hearing?

Larry 57:01
Well, if no probable cause is found, you have the right to be released. (Andy: That would be a good way to go.) If probable cause is found, then you have, then you’re going to go through a full-blown revocation in the state that imposed the penalty to begin with, because New Mexico’s out of the loop in terms of what happens to him, once he got to Colorado, once they found probable cause by either following the process that they didn’t follow, or he admitted to one or more of the violations, he was off to Colorado for them to determine what to do with it. My point is, I don’t want you to go to Colorado, I want you to force our system to do what it’s supposed to do here. And you may end up not having to go to the other state.

Andy 57:44
Okay. Yeah, I mean, if you have chosen to live in the new state, so you most likely would prefer to stay where you are now, with the receiving state. Okay. Um, so I think I, the way that it sounds is it would be in your best interest to get the probable cause hearing. And how does a person, if you if, unless you know that you are, have the right to a probable cause hearing, I don’t know that you know how to request it, or demand it that you have a right to one. That they’re gonna I think you’ve described to me in our normal phone calls, that they’re going to try and screw you along and send you back home back to where you came from. But how does the person actually get a probable cause hearing?

Larry 58:27
I wish I could, I could figure that out myself. I work with attorneys on a case by case basis, what we do is we file a notice of the demand for a public cause hearing in the in the district court. So if a person were to be taken into custody in Bernalillo County, and they were to have private counsel, I can’t speak for the public defender’s office. But if they have private counsel, and that private counsel reaches out to me, I say, I’ve got a template for you and the file this and you adjust it to your clients. And you file it in District Court. And they said, well, how do I file it. There’s no case number here. And I say, well, you use a miscellaneous case number, which is the court assigns for case for cases that are not in a traditional flow of cases. And you try to get a district judge to agree with you. And when you file a miscellaneous case number, it may end up with any one of the district judges. And some of the district judges are sympathetic, and they’ll give you a hearing. And some of the judges say I don’t know what this is all about, and they deny your, summarily deny your petition. We need a systemic fix. And I think that’s going to have to be done by statute and trying to get a statute passed, that’s going to require work. I mean, this is expensive work. So you’re talking about if you pass a statute that say that anyone who’s on interstate compact supervision is entitled to a probable cause hearing, and you would cite to the compact to the interstate compact that we have an obligatory responsibility to fulfill, because we, we signed on to it to fulfill this obligation, we want this to be in statute. The district judges association is going to come out and say we’ve got more cases, and this is gonna open the floodgates, we can’t be holding hearings on this, you people need to figure out another way to have your probable cause hearing. The corrections department’s gonna say we’re over overwhelmed already. We don’t have enough administrative hearing officers, we’d have to hire four more administrative hearing officers. And then the public defender is going to come in and say, well, we don’t have enough resources, because we already can’t handle the volume of cases that we defend already. At the pretrial, you know, when when a person is indicted, and all the different stages of representation, habeas, we have all these cases, and this is just going to add work to us. So everybody’s gonna say, No, no, no. The prosecutors are gonna say, well, who’s gonna represent the state? We don’t want this responsibility. We’ve got too many cases. And trying to put that in statute is going to be extremely difficult. But that is ultimately the answer is to put it in statute, and make it a responsibility of, of a judicial official, to be aware of who’s in their jail, why they’re there. And to make sure they get due process, when we’re holding someone in a cage, we need to make sure that they’re being afforded the due process that our state has committed to providing them, which is a determination of probable cause before they’re shipped out of here.

Andy 1:01:22
I have what is going to sound like a dumb question. And so please just work with me here. You have written down here multiple times of waiving the right to extradition. That sounds backwards to me, I’m thinking of, if you wish to waive your right to remain silent, you are therefore then speaking. So if you waive your right to extradition, you’re refusing extradition? Can you explain waive extradition, please, in really dumb people terms for me,

Larry 1:01:52
You have the right, if if it was truly an extradition, if you were a wanted fugitive, you have the right to force the state who’s demanding that you be surrendered to them, you have the right to force a very limited due process, which is them to prove your identity. And to prove to the satisfaction of a judicial official and the asylum state is, where the fugitive is located. You have the right to force them to prove that they have their paperwork in order that’s gone through the governor’s office approval and that everything is as required. So you can waive that and say, I will not have my hearing. I will not force Colorado or whatever the demanding state is, to prove who I am. I am that person. And I agree to go back. So that’s what the waiver of extradition does. But this isn’t an extradition, this is a probable cause. You’re not being extradited. You’re here legally, you’re not a fugitive from justice. You’re not on the run. You’re being, legitimately supervised, and you have the right to a probable cause hearing, which is a much more robust proceeding than an extradition.

Andy 1:03:03
Okay, I think I got it. And this was far easier for me to deal with than the rest of the interstate compact stuff.

Larry 1:03:10
Would you… I mean, it’s very simple. Would you like to have a hearing where they can only you can only talk about who you are? Or would you like to have a hearing that talks about what you did?

Andy 1:03:20
I think B. sounds much better. Because I mean, I can I can, you know, hey, here’s my driver’s license, I am me, but I didn’t do those things.

Larry 1:03:31
So, yep, that’s, that’s the difference between the two. And if the lawyers don’t know that, then it’s very difficult for the person who’s in this. That’s why you need to be listening to Registry Matters. And you need to be supporting us because before they put those handcuffs on you and accuse you of a violation, you know, this 5.108. There’s two things you should remember, when you’re on supervision. You should remember a phone number of who you can call and I mean, remember it, not having your phone because remember, they take your phone away from you when they book you and it goes into your property. So you need to know the phone number of some people you’re going to call and you need to know when you call your lawyer, you need to know 5.108 interstate compact

Andy 1:04:15
and the routing number for your checking account so we can hire you to represent us or advise not represent advise. Oh my god, Larry, this stuff’s so complicated. There’s so many little nooks and crannies and details and things that you have to be aware of which I totally get why if someone needs some level of advice from a person such as yourself, a knowledgeable, legal, professional, etc. This is ridiculously complicated.

Larry 1:04:48
That is why I am here.

Andy 1:04:50
Oh yeah, hang on. I can play this. I can do that. (MacAurthur Movie Clip: That is why I am here.) missed my chance.

Andy 1:04:58
Wow. Is there anything else that you want to do with this segment or any other segments before we call it quits?

Larry 1:05:07
I think we’ve had a fantastic program. Are there any fabulous questions in chat.

Andy 1:05:13
There were no questions in chat people got latched on to like that first thing with the teacher, with an eight to 20 year sentence, people got latched on to all the little nuanced details on that. And then the person who had the extradition, he was peppering me with some different things, but nothing, nothing lately.

Larry 1:05:32
Oh, well, I think we’ve had a fabulous segment, segments. I’m looking forward to next week if you invite me back..

Andy 1:05:40
I will probably. I think I could probably find some… Nope, probably can’t find anybody else that can replace you Larry, that’s for damn sure. I do want to say I want to, I want to thank all of the internet gods for not letting my internet die tonight, which is pretty amazing. It’s been the first time in about, I don’t know, five or six weeks that I haven’t had internet problems while we’ve recorded. I’m sure as soon as I’m saying that I’m going to jinx the whole thing. And the whole Internet’s going to collapse as we finish up this section. Larry, tell us about YouTube again. What do you need them to do at YouTube?

Larry 1:06:12
You need to subscribe so we have 1000 subscribers by the end of this year.

Andy 1:06:17
Wow.

Larry 1:06:18
Okay. And you need to, you need to hit the like button because there’s some algorithm in outer space that figures out that feed this out if there’s a lot of likes, and you’ll need to hit the bell, which will notify you when the next one comes out. And then at midnight eastern time, on the dot, you’ll get a dingy on your phone

Andy 1:06:42
Unless I’m late, and it comes out at about 12:30 on this most recent Tuesday. I would also add that in podcast apps when you do subscribe to it, when you search for Registry Matters in Spotify and Pandora in Pocketcasts in overcast all the podcast apps, when you subscribe to it, you are then also feeding some kind of algorithm that can then perhaps recommend other shows to you. But that’s the whole point of why you would subscribe and it will get delivered directly to your device. I’ve never liked Larry, even in all of the conversations my favorite thing in the world is a podcast because you click Subscribe and the thing just shows up on your phone and you have stuff to play. It’s great. You don’t have to do it on their time you get to do it on your time. It’s like a TiVo, kind of sorta. Everybody go to registrymatters.co and you can find the podcast you can call in and leave voicemail at 747-227-4477. registrymatterscast@gmail.com What’s a TiVo? Seriously, someone in chat says what’s a TiVo and they laugh at me. And we appreciate all of our listeners. Our numbers are growing and that’s great. Please share it and the best way to support the podcast is over patreon.com/registrymatters. Larry, anything else? You’re my best friend. I love you very much. You are the man of all knowledge and great things. Anything else before we head out?

Larry 1:08:07
I can’t think of anything else. So I appreciate being here. And I appreciate all of you.

Andy 1:08:19
Excellent. Thank you very much, Larry. I’ll talk to you soon. Take care. Bye bye.

Larry 1:08:21
Goodnight.

You’ve been listening to FYP.

Registry Matters

A legal and policy podcast about the sex offender registry

Category Archives: Uncategorized