Transcript of RM115: Michigan Explained Part Deux w/ Josh B Hoe

Transcript of RM115: Michigan Explained Part Deux w/ Josh B Hoe

Listen to RM115: Michigan Explained Part Deux w/ Josh B Hoe

Andy 0:12
recording live from fyp Studios transmitted across the internet. This is Episode 115 of registry matters. Larry, it is a Saturday night we have a guest. Again, it’s as if this person is going to join us on a regular basis. But he’s Mr. Michigan. So Larry, meet Josh. Josh, meet Larry. I don’t think you guys have ever spoken before.

Josh 0:34
Hey, Larry, welcome aboard, Josh. Looking forward to talking to you, but I didn’t expect it to be the

following week. I know. Right. I told Andy he should apologize to everyone advanced for me being your guest again.

Andy 0:47
To which I replied, I have to apologize to them every week for Larry so it’s not that big a deal. How was your Saturday Larry? He went did more party stuff, right?

Larry 0:57
Yeah, that’s gonna be the thing for the next few weeks. I’ll be doing I’ll be doing party stuff next weekend and then two weekends later, then again, some point after that. So I’ll just I’ll just

Andy 1:08
tell everybody now that we’re going to record next Sunday, I believe it is in the afternoon. So we won’t time next week.

Josh 1:15
Well, there’s a possibility we might if the if the meetings go, and if they’re well managed, and we don’t go too long, but you never know today it went for it went pretty well.

Andy 1:25
And I guess we can dive right into this. So the big news came out yesterday that the federal judge, I hope I’m going to read this right. The federal judge announced that everything should be shut down in Michigan, something like that. Somebody give me some better pointers on what that what happened yesterday in Michigan,

Josh 1:43
Josh, that’s pretty much it. There were you know, he basically decided on our side on every issue with the exception that the Michigan court, I mean that the decision doesn’t actually go into effect until more or less nine days from now, if the legislature doesn’t act to make the current statute into a new statute that’s constitutionally permissible, that’s probably the easiest way I can.

Unknown Speaker 2:12
Okay. And, Larry, do you have anything to counter with that?

Josh 2:15
That’s essentially what the judge said the timing is a little bit different than the 90 days, it’ll be 60 days from the entry of judgment. And the parties are going to be negotiating to word the judgment, the final judgment of the court, and then the legislature will have again have an opportunity to legislate. And their incentive has just gone up exponentially from where it was. So we’re going to dig into that a little bit later, but as it existed the status quo with all the previous litigation on this, there had been no change to the Michigan registry except for the for the five original doe was that that one, they were the only ones who had gotten a relief. And this class action suit that was filed subsequently

This has been dangling for some time. And now, the judge has forced the issue and I will explain to her why because the reason why the there was no incentive because if the status quo was being maintain, there’s very little incentive to legislate. So the opportunity that they that they were given previously, they declined that opportunity, because the political risk and their view was too great. Now, the political risk has shifted there too great for them not to legislate. So now, they may, they may be able to legislate something in the timeframe that they have.

Yeah, I mean, the tricky. The tricky part of it is that there’s essentially two different parts of the the issue at hand. There’s the pre, all the people who are ex post facto, which at the time would have been pre I believe it’s April of 2011. You know, it’s going to be much harder to create a constitutionally permissible registry that that isn’t exploit facto for all the different groups of people who are prior to who were under different statutes, prior to that, that date that’s consistent with all the people after the date. So it gets kind of confusing as to how they would actually. I mean, one way they could do it is just to go back to, in essence, like a dose versus Alaska style registry where whatever the original version of the registry was, is really what the registry becomes. I don’t know what you think about that, Larry. But what a constitutionally permissible, permissible registry that encompass both groups would be,

oh, it’s very easy, don’t impose any disabilities or restraints. And you’ve got a constitutional registry until we till we fully developed the fact that that being on the internet itself is is is abolishing the constitution which we’re moving in that direction. But, but if you want a constitutional registry, do not try to impose any disabilities or restraints let people live where they want Let them work where they want. Let them be where they want, and minimize the inconvenience and intrusion their life as minimal as we possibly can, which may be mail reporting, online reporting, and then you would have a constitutional registry until we prove that merely listing people’s likeness online is is is punishment, but they haven’t asked me to help them draft the constitutional registry, but I’d be delighted to do that. But but most people on the law enforcement side would not like to registry that I would draft because it would be permissible we would we would register people just like we are meant for the draft. You know,

I’ve heard over and over again that at least in the stakeholder meetings, the Michigan State Police are not a huge are actually not fans at all really of the registry, but you know, we’ll see what happens.

Andy 5:45
Alright, well, let’s let’s cover some stuff before we get into that whole thing in Michigan, and with with your upper peninsula and all that. We got. I’m introducing a new segment here and it’s called Larry’s general rules of criminality. This is developed over a long period of time Larry calls me on the phone. And he tells me these stories about a, you know, hey, don’t drive 95 miles an hour down the interstate with bags with drugs in it that says drugs are here. So we have another article that we can cover talking about what you shouldn’t do as a criminal if you’re going to commit crimes, not that we’re advocating for committing crimes. Larry, please tell us what is the latest rules of criminality that you want to you want to what what what am I trying to say to like aspire to our people,

Josh 6:29
you know, where does where does this one come from? I didn’t catch the jurisdiction was

Andy 6:33
well, this is a convicted killers. Jimmy Ray Rogers. Let’s see where are they from filter from Missouri. The article comes from CBS News but the individuals originated in Missouri for their trek down to Florida.

Josh 6:45
Okay, so we’ve got Florida, Missouri and what what I’m stressing is don’t commit crimes, but people in everywhere got to commit crimes, and then they’re going to be defense attorneys. And you make our job a lot harder when you do things like this. You’re going to pick out a person and target them for death and you need to travel across the country from Missouri to Florida. Please don’t use the GPS device in the rental car to the final destination of the person you’re going to kill Bob would prefer you don’t kill them. But if you do find it necessary that you bust for whatever your reasons are, we’re going to have a lot harder time if you’ve done that because that’s what these people did.

Andy 7:29
And then they end up on camera in a Walmart picking up supplies for said

Josh 7:36
for the cleanup, for the for the which most states I get you for tampering with evidence and trying to conceal the crime but just that’s another FYI as a side point for this every public place now has video. When you use your little debit card because you’re so proud you don’t carry the cash with you. It makes it it makes it very easy to identify you because most of those pretty plastic cards The banks and financial institutions have taken great pains to make sure they belong to you. Now, there are exceptions for pre prepaid cards but usually your fancy card that makes you feel so happy that you’re not carrying cash because you don’t want to be vulnerable. It actually makes you quite vulnerable.

Unknown Speaker 8:15
I can like happily attest that I have no cash in my house. Oh, I understand it. That’s the

Josh 8:21
way the society is only about a quarter to last on stats I saw of transactions in America are being done by cash anymore.

Andy 8:29
Even a quarter 25% of transactions by cash. Yes,

Josh 8:33
but but it varies from location but in a place like where I live it would be even higher because there’s a lot of unbanked people here, but other places more affluent and where there’s less of a diverse population. You probably see even lower than 25% of people that are conducted their business with with cash but but yes, when you’re at the at your local market, wherever it is, if you take notice, there’s cameras everywhere, their screens everywhere. Where, and when you slide your card, it links the card to you. So when you buy the cleanup stuff to destroy the evidence of the crime, you’ve just recorded yourself buying the cleanup stuff. So just keep that in mind.

Andy 9:14
Larry, I just had an idea because we were talking pre show about how did they attribute these two individuals to the crime. Maybe they left something at the crime scene of, you know, a Clorox wipe or whatever the hell and then they looked at recent transactions, and they’re like, Oh, hey, look, these people bought these things at the local Walmart. Like maybe, maybe that’s how they put it together.

Josh 9:33
Not real clear on that, but but you can just you can just take some steps in advance to try to try to minimize it this high tech era. That’s one reason the crime rate in this country has dropped so much, is because the solvability of criminality. If you go back 150 years, they they solve problems by eyewitnesses someone had what you had jack the Ripper on the loose, you had to go out and actually catch him doing the crime because you couldn’t go back after the fact. Figure out what happened. But as as forensics have evolved, and technology has evolved, and social media has evolved, there’s so much that solves crimes now that we couldn’t even fathom 2530 years ago. It’s just unbelievable.

Yeah, I mean, Larry’s right, the crime rate is down for a lot of reasons. That’s certainly one of them is that it’s much harder to get away with crime now, and you know, these does a great demonstration of why every single data point, every place you go, everything you do, you’re leaving a digital trail behind. And, you know, I mean, it just takes the right person to put the parts together and then you’re pretty much cooked and that’s what happened here.

Andy 10:40
So a, don’t go around killing people, but be, don’t put the address in the GPS and probably, maybe buy supplies, maybe in route and not at the destination. I don’t know, man, two weeks before,

Larry 10:55
and maybe use cash

Andy 10:57
and use cash Of course, and like put a had on and some sunglasses when you walk into these stores, really that easily identify because then

Josh 11:04
they’ve got the still they even if you use cash that’s not foolproof because facial recognition, it will get you so they would run your your, your video of you they would freeze it. And they would run that through facial recognition. And if you’re in the driver’s license and state ID database, it would throw out a number of potential hits

Andy 11:23
and they would still get yourself so it’s really, it’s really difficult these days, you you killing people is not as easy as it once was. I have a potential solution to the facial recognition thing considering it sort of invoke to wear a mask across your face because of the corona virus that has killed you know, 1400 or something people. Just Just as a side note in 2017, there were like 60,000 people that died from our normal annual flu season. So the corona virus probably isn’t as significant and ordeal But anyway, so wear a face mask and it would be sort of culturally accepted at the moment throw on some sunglasses. Facial recognition will never work.

Josh 11:58
So but but but preferably just talking about the crime. That would be the best best solution. Don’t don’t go around committing crimes, but if you’re going to commit crimes, you’re going to need people to defend you because otherwise the system will just railroad you in July.

In this case, they wouldn’t have been railroaded. They they pretty much sort

Andy 12:17
of handed the case to them on a silver platter, right.

Unknown Speaker 12:19
Well, they and they committed the crime.

Andy 12:24
It’s not like well, really the segue to our next article, go ahead and finish the point there

Josh 12:28
was question is so there may not be any doubt about about the crime. But there’s the question of culpability, in terms of wars are more than one person was there more than one person involved? How comfortable was the second third person compared to the person who actually did the dirty deed? Some states don’t apply equal an accessory in some states is just as culpable and responsible but in other states are not. And then the question is, is it a Is it a premeditated first degree murders at eligible for life in prison without parole is their mitigation that would that would diminished the possibility of getting a life without parole make it life with option for I mean, there’s a lot of things defense attorneys could do just because they’ve got you for the crime doesn’t mean that there’s no defenses that would help mitigate the outcome. Oh, I agree with that.

Andy 13:22
Which I think is a fairly decent segue into the second article that we’re going to cover is from the Baltimore Sun. It’s when innocent people go to prison jailhouse informants are often to blame. Some Maryland lawmakers want to change that system. And if I remember right, looking through these stats, something of Was it a sixth or seventh of the so nearly one in five of the 367 DNA based exoneration cases nationally have occurred because they’ve been let go because of false testimony from jailhouse informants, which goes to I mean, that’s a to me that’s so that’s like 70 something people that been like, go after false testimony from jealous and former.

Unknown Speaker 14:06
Yeah, boy, that’s shocking that the jailhouse informants are telling the truth I’ve heard I know, right?

Andy 14:13
Well, I’m surprised about it, but it’s like but but the system encourages it. And Larry, you can speak much more, more informatively on this than I can, but like, you know, they’re, they’re rewarded for it. They’re incentivized for doing it. And that would obviously, give them a reason to not tell the truth if they’re going to get some curry favor.

Josh 14:33
Therein lies the problem, Andy and I try to I try not to deliberately straddle the fence because I do have my opinions. I also try to give credit for difficult positions that people find themselves on the other side. a prosecutor isn’t a difficult position particular when crimes of a heinous nature are not solved. There’s a demand from the community so the prosecutor’s office is under me to do something. So they’re looking for solutions and convictions and and ways to close the case. The problem rest with the trade off of what happens. You’re not generally as a prosecutor, you’re not going to build your case around people, you wouldn’t go to the local to the local law parsonage and you’re not going to find the people they’re going to be able to help you solve that crime likely in the kind the congregation the people that that are going to have more information are probably going to be a little bit on the shady side. So so that relegates you to having to deal with those kind of people. The question becomes, what you give those kind of people in return that is a very awkward position to be in because if you if you if you evaluate their their their the snitches information, it seems credible. The snitch of course was something they’ve got 14 years to do in prison and and and they’d like to reduce that down. So solve it well. help you. If you help me the prosecutor it ends up having to deal with these kind of people. By objection is that a system that’s built around snitching and rewards? were quiet that is what’s encouraged versus it just happening. if if if a guy can if a person in prison can’t tolerate cellmate or what he call it with a unit where the whole, you know, the housing if there are some gross individual has done a bunch of awful things, and they just want it to be known in the interest of justice, because that that’s, that’s who they are, even though they’re in prison, and they want to help the administration of justice. That’s one thing. But if they come and say, Hey, I got this magic evidence for you, and I want something in exchange. That is a perverse incentive. That’s kind of like policing for profit. I mean, it’s not the same thing, but it’s kind of like policing for profit, the profit for them as they get they get released. Early. And that encourages, in my view, untrue accusations and testimony and that’s what worries me.

I wouldn’t say I mean, it’s for me, it’s it’s not just worrisome, and I appreciate Larry’s kindness to prosecutors, but, you know, I think in many of these cases that they’re outright willing to manufacture in for evidence, or, you know, at least plausibly, it was some plausible deniability, manufacturer evidence in order to ensure conviction. And a lot of times they don’t really care if the conviction is legitimate or not, you know, I mean, I think probably the most famous case of this right now is the Amy Klobuchar incident. Where was back when she was the prosecutor of Hennepin County. She put someone who was a juvenile away for a case where a young girl had been shot. And it turns out that the two pieces of evidence that convicted this kid were a jailhouse, were paid and jailhouse informants And when you know later when she’s asked about all these years later, she says, Well, of course you should put new evidence out, if there’s new evidence, they should put it out and get, you know, get this person out. But the question isn’t a question of new evidence. It’s a question of new reporting about old evidence. So that’s the evidence her office used to convict, you know, it’s so this I mean, this plays out in real life all the time and in very disturbing ways. And, you know, I mean, there’s a really good book by Emily bazelon, about kind of all the ways in which prosecutors are incentivized in a lot of ways in a lot of poor ways, and ends up in a lot of miscarriages of justice. And sometimes I would say bad faith, miscarriages of justice.

I don’t agree with you. I don’t disagree with you. I may disagree with you. It would be ideal if all prosecutors carried the highest level of ethical conduct and adhere to that, but they don’t. They’re wanting convictions because as the pressure they’re under, how do we change the system? that we have now where, what, without fail, almost all prosecutors in the country at the state level have to be elected by the people. And the people are being constantly told that crime is out of control, and this person is not doing anything about it. And they could be, they could be putting more people away if they weren’t. So pro defendant. And course prosecutors are generally not pro defendant. But they they’re under enormous pressure to close close cases. So a third of the prosecutor is not unethical, but they’re still faced these pressures. How do we alleviate and take some of this pressure off to gang convictions? The ethical ones will have to deal with it another way but but how do we relieve the pressure that they feel it from from the public?

It sure would be nice if the media would stop reporting that crimes out of control all the time, when it’s actually arguably the lowest it’s been since like 1967. But aside from that, you know it.

Andy 19:58
Did I bump I bumped an article Next week, you’re talking from the New York Times that I’m sorry, it was from the appeal challenging that the New York Times was saying that they the crime is running rampant based on like some of the bond changes. But then the appeals like, no, it’s actually down. Here’s the actual numbers, stop reporting BS.

Unknown Speaker 20:16
The appeals, right?

Josh 20:18
Well, well, and I’ve maintained on the history of this podcast, I’ve been saying that that cry by said it that when I had extra and I made a national conference in Atlanta making 2016.

Andy 20:28
You had somebody that wanted to perform an exorcism on you on the spot. It was almost like the I don’t remember who it was who stood up in the State of the Union address where he said, You lie when Obama said something, I forgot what it was.

Josh 20:39
Yeah, that was about the Affordable Care Act. Yes. But you lie. That was the course there was no, there was no retribution. There was no reprisal. There was no punishment. There was nothing really insignificant that happened on that. But But crime, crime has been trending down for a very long time across the country with pockets of exceptions. And cause I’d love to have that debate about what we do about the media because every proposal I come up with is not acceptable. It’s kind of kind of like okay, well do we do we reinstate the Fairness Doctrine? No. Do we? Do we break up these media? Goliath, where they have so much ownership and their their, their primary obligation, and rightfully so in a capitalist system is to return dollars to their shareholders and to enhance the value of their shares. How do we deal with this because nobody wants to fund public broadcasting. That’s communist and socialist. No one wants to limit what can be aired. No one wants to require equal time. And no one wants to break up the monopolies that controls the bulk of what we hear. So I’m all ears for suggestions. What do we do about the media because they’re doing what they do? They’re trying to make profits for their shareholders. That’s the capitalist system.

Andy 21:58
I mean, there was the thing We covered recently with a prosecutors I think that was in New York where they didn’t want to have a independent review capital.

Josh 22:06
independent review panels are usually run by other attorneys, which means, of course, to a particularly great job at punishing attorneys. They’re usually not independent. But it’s still something you know, I mean, we’ve seen that with Brady. Brady evidence and other things, but I don’t know I, you know, I mean, that’s the question of media that that Larry was asking just a second ago, I feel like, you know, have spent a good deal the last couple years in essence trying to get people to join in, in calling out the media every time they make bad arguments about crime about you know, you about sex crimes about all kinds of stuff. And sometimes that’s been pretty effective. You know, I mean, especially last year when we were I think I got a group of like 85 formerly incarcerated people to organize around the stake and prison narrative during the federal shutdown. But in other times it hasn’t been I think very recently there was a decent number of people who struck back against that one news outlet that was talking about. Geez, I can’t remember what the story was, but it was a sex crime thing. Or us registration. Oh, it was people who were rounded up for registration or something like that. I mean, I just think we have to, you know, use the tools we have to talk back to the media and to bring attention to the fact that they aren’t being factually correct or even close to factually correct most of the time.

Okay, but why are they obligated to be factually correct other than morally, they don’t they they’re, they’re in a business and they’re they’re selling a product fly a less way less. We’re going to have the the government come in and say that you have to be accurate your stories fly. What obligates them to be factually accurate or even balanced and show both sides of an issue. Why why why do they have to do that?

I don’t think they do have to do that, I think that we can ask them to do that and say when they don’t do that, that you know and call attention to when they don’t do that. It’s ultimately up to the consumers what, you know, they decide to do with the media, but you know, we have to use the tools at our disposal to try to, to counter the bad narratives that they put out there. You know, I didn’t I don’t think I called for any any legislation or anything like that.

Well, that’s what I’m saying. But without legislation without I’m sorry, but guts and sensationalism cells. If you put all fluffy news that doesn’t sell we are in this predicament because this is what the public wants to consume.

I don’t know. I mean, I hate to get into too much of an argument here. But so we probably lost this battle about two months ago, or maybe a month and a half ago. I it all runs together. I was really involved in pushing back against the bail reform. backlash in New York City. I got called into Help. I wrote some talking points, I did a bunch of pushback on social. And while you know, they were much better organized than we were to start out with, we still you know, I was still getting, you know, hundreds of thousands of people reading that the pushback every single day. And you know, I mean that maybe it maybe a million people go the other way. But I mean, I still feel like it can be very effective. If you learn how to do messaging and you work with other people who share the same goals to push back against the media, at least you get a lot of people who become better informed, which I think is hopefully the goal of a lot of this stuff.

Well, I agree with you on that. I agree with I agree with you on that, that that the media is a part of the problem, but I don’t know how we solve it.

Andy 25:45
This next article comes from the appeal that’s talks about new data suggests risk assessment tools have little impact on pre trial incarceration. What jumped out at me in this and I’ll give you my own little personal spin on it is I’ve written some thing of like a machine learning algorithm to detect for fraudulent orders. But one of the things that I do with it is I feed new data into it to validate whether the like, Hey, this is what I told you might be fraudulent. So can you tell me whether it actually was fraudulent, so that way it keeps learning and modifying the system as it goes. But these people, these new people, as it were, they created some system to evaluate people up front whether they could be released pre trial, but then they don’t feed any data back into it, whether they were right, whether the people that they released or not released, whether they committed obviously, if they were still detained, they weren’t committing much for crimes, but if they were released, whether they whether the prediction was accurate or not, that bothers me.

Unknown Speaker 26:39
Well, okay, it bothers you.

Andy 26:43
I can’t do anything about it. But I just want that was the point that jumped out at me and I know that you’re going to have all kinds of if you’re not guilty of anything, why are you having all these disabilities and restraints? Why are you having all those things put on you if you’re innocent until proven guilty?

Josh 26:57
Well, that is where I’m going to go with this and then Josh Gonna counter with with the pre pre show always reached out banter that we that we had, but I have, I have a lot of trepidation I totally, totally understand and agree with those who have money under the cash bail system. If you have if you have structured preset bail for a list of offenses, and that’s the way it was largely done, up until recently, in most jurisdictions is you got charged with a fourth degree felony, well, it’s a it’s a 1500 dollar bond for fourth degree felony. Well, if you if you have 1500 dollars, that doesn’t magically make you a better person, as far as moral character, and do the likelihood of appearing in court. And depending on how many 1500 dollar collections you have, it might be very easily that you could absorb the loss of 1500 dollars and still not show up in court. So I understand all of those arguments don’t want these to regurgitate them to me Before I break with those people is although that system has many flaws, it was fast and expedient. And those who did have the resources, like with everything else in a capitalist system, those who have the resources can have the nice car, the nice colleges, all these things, the person who had the resources would be able to exit the jail faster. And but since you are presumed innocent, that’s exactly what should be happening is you should be exiting the jail as quickly as possible after you’ve been blocked. And after there has been some reasonable assurance that you will participate in the process, because that’s what you’re supposed to do when you’re accused is participate in the process. So the question becomes, how do we make sure that people will participate in the process? I’m still on board with bail reform, if that’s all it’s for, but that’s not what the reform is to have done. Dave not only wanted to assure that you’ll participate in the process and continue You to go about your life. Under the presumption of innocence, they’ve decided that this is a chance for we can rehab you. Of course you have you’re not guilty of anything yet, you may be charged with a DWI, but you have not been convicted, you may very well not be guilty of whatever that charges. So therefore I don’t feel we’re in the rehabilitation business or the restraint business until there’s either a plea or an adjudication of some sort of guilt, which there’s why break with them, because they come in with all these conditions. I said, we’ll let you out of jail. You ain’t gonna have to post no money. But we got this. The little thing here is a GPS monitor. And it has a supercharger in it, and you get to blow in it all night long when it goes off. And you have to go to DWI, you have to go to alcohol counseling every week, you still might be guilty of a very problem. You have to all these conditions you have to do and you have to even in some jurisdictions pay for the privilege of a monitor pre trial. It’s sub level, and there’s where I’m break with no, I don’t like that system and also the delay of the tool. How long it takes A tool to be to evaluate and whatever it is it’s evaluating you on. Well, right now decide your propensity commit another crime. Well, you haven’t been found guilty

of this one. Yeah, I mean, I guess the difference is, first of all that with most of the tools that you know that it’s a the point isn’t necessary rehabilitation, it’s a question of dangerousness and and the algorithm basically uses a bunch of depending on which algorithm you use, uses a bunch of hopefully dynamic data instead of static data to try to determine your level of dangerousness of committing a new crime while you’re on bond or whatever. And you know, those some of those things may seem rehabilitative, but they’re justified under dangerousness. You know, I mean, traditionally, the two big problems with risk assessments are one that they tend to, in a lot of cases, create, particularly racially discriminatory outcomes. And the second one is is as you know, Larry was just mentioning that a lot of times there’s a risk that actually more people get detained under a system with risk assessment than without risk assessment and with cash bail. Now personally, I’m for a system that tends to err on the side of release on recognizance. You know, we’ve had bail reform in a bunch of different jurisdictions we’ve had bail reform in in DC is kind of where a lot of this started. You’ve got New Jersey, you’ve got Philadelphia, you’ve got Cook County, Illinois, you’ve got Kentucky and you’ve got I’m probably leaving someone out, but that’s a lot of them. And in all of those places. The big fears of bail reform are that crime will increase that’s actually not been true crimes decreased and recidivism is decreased and failure to appear is the other thing that people get really freaked out about. And and all those places fail it up here. It’s rates have been about the same and so The kind of terror stories about bail reform, I don’t really believe are true, I tend to believe that you always should err on the side of liberty. And so I believe people are innocent until proven guilty. And so when people you know, I was out, when I was arrested, I was I got bailed out, I was lucky enough to have the money to do that. And despite the, you know, the charges that I faced, I seem to have made it to trial. Okay, and went to prison. You know, I think that’s the way it works for most people. And I think that that there’s a reason for that. And I think everybody should be afforded the right to, you know, there’s a lot of bad outcomes from from from pre trial detention, you, you’re more likely to be found guilty, you’re more likely to commit future crimes. It’s just not a very good public safety policy, and it hasn’t had very good outcomes and bail reform on the whole has had pretty good outcomes. Now I also think that we should err on the side of liberty and so I’m not a huge fan, necessarily. risk assessment tools unless they can be proven to not be racially discriminatory and to allow for more not less release.

Andy 33:09
How about Charles rates? Maybe they should look at other countries instead of being trapped in the American bubble in England. No cash bail and crime is not crazy.

Josh 33:17
We can’t look at other countries. We’re smarter than all the other countries. Charles, I don’t know why you don’t understand that American exceptionalism. Right? That’s correct. I agree with I agree with practically everything Josh just settled, err on the side of liberty. If we mean what we say about the presumption of innocence, then there’s no need for prediction of dangerousness because the person is presumed innocent, so therefore, they couldn’t be dangerous.

Andy 33:48
It actually almost makes your head explode. But when you say it for real, because you’re just like, Oh, that’s right. You’re innocent until proven guilty. So the presumption of innocence would be you know, handover your path, not passport, but you know, gives Your booking information name, address, telephone number, all that stuff. And then you go,

Josh 34:04
Well, it could, but I believe the primary purpose of of conditions of release is to show participation. So I think it is relevant to look at the participation rate, if that person has seven benchmarks over the last five years, for failing to appear, that is a factor that’s worthy of consideration, because we need you to show up, but we can give this presumption of innocence, but you need to show up. So that’s a factor. But what you might have done, what you might have done in the past, if you showed up for trial, you went to prison and you paid your debt to society. I thought we were about not holding that against you. And using that as a progress as a predictor. We seem to be talking out for both sides of our mouth. We’re claiming that a person who commits a sexual offense magically is not going to come in another sexual offense, and that the recidivism rate is so strikingly low, then how can we turn around and say, Oh, well, you’ve done this, and therefore, we predict you’re dangerous because you’ve done this once or twice already. Your last 30 years? Well,

Andy 35:02
we’ll forgive me for throwing this one out there then because you the three of us with normal human beings, you know, it wouldn’t be easy for us to amass the fortunes to go to another country and go through the system. But you know, we had articles on Harvey Weinstein, they got all bump because of Michigan, but somebody with that level of resources could just, Hey, I’m just going to go buy the yacht or take the out I already have and off I go and fyp to you and your system. So what that forces the person with those kinds of resources to participate?

Josh 35:34
Well, we’ll never have a will never have a flawless system where people what what what happened in a case like that is that depending on where they went, they would probably be traced down and and brought back these are legally or illegally, depending on the severity of the accusation was it was made against them. Dog bounty hunter. We, we we can’t, we can’t tell people that you’ve made a mistake in your life in 1984 Therefore, we decide you’re dangerous. Because what they did in 1984 is ancient history. Now it sentencing. And most jurisdictions, your past convictions, with, with very few exceptions do get taken into consideration. But this is a new crime. And if you listen to the overnight, the read I read, read Iran radio, each case is supposed to be according to those guys that evaluated on its merits. So what I’m interested in doing is when you’re charged with a crime is building up enough of an assurance that you’re going to participate. That’s my primary concern. Now, I know that I don’t speak for the whole system, but I want to make sure that you’re going to show up for court and impose this little restraint as possible on your liberties, except for this, make sure that you’re going to participate with us and that made me to regular check in to make sure you haven’t left the jurisdiction. And of course, if you leave the jurisdiction, and they’re attacking it daily, you could be long gone by the time they miss you understand all that but there’s no perfect system

and I just want to reiterate this You know, most of the research that’s been done around this says that failure drop here rates are about the same with or without bail reform.

Well, the Bella Anderson will argue for you to you that, that that might be true. But they say that they do a vast public service because I have an economic incentive to go out and track these people down because they’re on the hook for that money. So therefore, they’re freeing up precious law enforcement resources for the bench war, because they will go out and break the person and you have to you have to that that does carry some weight, because if they’ve got $20,000 at stake, that’s going to be forfeited 90 days, they’ll put a bounty hunter out looking for that person and they’ll pay that Bounty Hunter $2,000 to bring that person in.

The insurance covers all that. It’s my understanding. Well, they don’t have their own money. It’s not a risk.

Right, but but they they would be liable for the buddy that that’s just what they testify to at our legislature on a regular basis. But

yeah, I’ve had many runs many, many rounds and rounds with the bail industry union We’re not friends.

But that’s their argument. And they’re not very happy with bail reform. No.

Andy 38:13
I think that we are ready to move over to like round two of Michigan. And because yeah, here we go again. So the judge announced that the the whole thing needs to be shot down and the constitutional problems with the registry in Michigan, and all right, round two Ding, ding, ding, go at it.

Larry 38:34
Well, well, you could go first. I’ll go first. But but the fifth, this is an extremely complicated case. I had to read this thing twice, Judge¬† Cleland’s opinion that was released yesterday. And I think I largely understand it, but but I’ll do the once over gloss over and then we’ll get into the nuances of why I have trepidation. What’s happening here now is that the judge has enjoined the state from enforcing SORNA in its totality against large group of people. And those people who have convictions date predating 2011. I mean, a contract. I keep saying, Josh, and I keep saying, it’s our contract predated now what’s unclear to be as because he said that the 2006 and they put in post approach proximity restrictions, that the tests include it, but then he said it was boots. I’m a little confused. We’re gonna need we’re gonna need some further clarify the proximity is part of the vagueness decision that he did prior to the Sixth Circuit decision that we were talking about last week, and switch different grounds. I’m pretty sure.

So and then and then the the the judge issued a, an injunction against enforcement of several provisions of the people who have been convicted subsequent that are under the the enhanced version, pay issued an injunction I guess, enforcing a whole litany of things to deal with With the with the current registrants. So basically, anybody who’s required to register in Michigan is getting some level of relief from this because after the after the judgment is entered with this case, if the legislature doesn’t legislate within 60 days from that date, then sorta is going to be completely abolished for a large group of people and it’s going to be neutered for for the rest of the people. So this is this is this is going to be a major panic for for Michigan legislators to fix. Okay, Josh, tell tell me what what the court

said. No, I think, you know, that’s largely largely correct. I hate to be agreeable. But what he said is this pretty pretty, pretty much what happened. You know, I mean, there’s a number of ways that this could play out. The state could obviously appeal that has a you know, I talked to Miriam Aukerman. The other day and I asked this what she thought and she said she really isn’t sure what the state’s going to do at this point. Which makes sense because they kind of it didn’t seem like their heart was fully in fighting this in the first plays in a lot of ways, you know, another thing that could happen is that the legislature could try to pass to write a registry that would be constitutional for everybody before or an after 20 2011, which would be a pretty basic registry. And, you know, like, I think Larry has suggested it would have no, it wouldn’t create the conditions that put, you know, that put people out, etc. The third option, so they could, you know, essentially let the everyone 2011 go away, because that’s going to be the hardest one for them to write the kind of registry that they support, and still remain constitutional, and then try to just do some modifications, and keep everyone post 2011 on the registry and as constrained as possible. You know, there’s all kinds of things that they could try to do and then they could just fail to get the legislature could just fail to get the job done in time. And then like Larry just said, the whole thing would go away for people who were pre April of 2011. And it would be a much different registry for everyone after, there’s all kinds of things that could happen. We’ll see what does happen.

Andy 43:03
What do you think, Larry? What are the political ramifications? here’s, here’s one of the questions that I’m one of the many. If so they’ve invalidated and they have 60 days to get their act together. And certain people on day 60 or day 61 whichever they fall off the registry, a what? They go purge the records. And then on day 61, they enact new legislation or those people all brought back in, and now they’re under a registration scheme, again, where they have to go report in again, and it’s equally unconstitutional.

Josh 43:35
Well, that would be one conceivable remember, since any law that’s passed is presumed constitutional. There’s no prejudging by the court. So although although Cleveland would probably find it problematic, if they passed a sort of it looked a lot like what they have enforced today. They could conceivably do that. Just look, look at Pennsylvania. That’s almost what they did. They could do that. But I would say yes, that that that is one of the possibilities, what I think would be more likely a possibility. And and, folks, please don’t send me over emails because I only tell you what I think possible these are. And I’ll wait. I don’t have a crystal ball. I don’t have a direct connection to the office of Michigan. I don’t know what they’re going to do. I just know how to do political analysis. I’m assuming that in this year 2020, that a portion or all of the Michigan legislature is up for reelection? I’m assuming that without having done the research, if that’s the case, that is great. If that’s the case, that they are not going to have any political incentive to unravel, sorta, they’re just not going to have politically This is not a winner for them to figure out how, unless they could put a spin on it that we’re that we’re we’re we’re somehow protecting the community, but just to make the registry For the people who would like not to have to comply with it, that’s just not a political winning hand. So I don’t think that I don’t think that they’re going to be looking to come up with a real easy constitutional registry. I think that’s a long shot. It’s certainly within the rebel possibilities. But I think that the more likely scenario is that since the Attorney General is charged with enforcing and defending the laws of state of Michigan, this court what they have done has actually opened up a lot of potential new litigation that hasn’t been done yet. Because Cleveland went beyond what the Sixth Circuit did. With he took he took the liberty to declare unconstitutional again, what he had declared unconstitutional, which was largely ignored by the Sixth Circuit, and those number one, and they, they they only focused on the ex post facto violation of the 2006 and 2011 amendments. Cleveland had found other constitutional deficiency, so he’s reincorporated that into this new class. Action case that was filed after that that case. And so those have not been tested on appeal yet. So if I were the Attorney General, and I was looking for a way to do my job, and I’m not the Attorney General, but I would be looking at, okay, well, I’ve got this as an appeal, I can appeal Cleveland on this. I can appeal Cleveland on granting to determining that it’s not separable. And that would buy a bunch of time to get people beyond the election, because in that appeal, you would ask for a state of the injunction that’s going to take effect in 60 days, and you would hope that you could get to have two or three judges on the Federal Court of Appeals panel to agree with you that that that until until these issues that he decided beyond those verses, Snyder had been litigated on appeal. And the fact that the state Supreme Court wasn’t given a certified question that would buy them time. You would possibly get a better outcome politically if that were to happen if you will remove the election, the threat of the politics From this because once the election cycles past, then there is if you remember Obama said, Let me get reelected, and then I’ll have more flexibility. That is just the reality of the situation. The lawmakers in Lansing will have a little more flexibility if they can get past the election right now is the worst time at all to try to legislate to improve SORNA from the registrants perspective, and the only thing that I’ll say there, although I think that certainly is, well, the two things I’ll say there, the first one is is that, you know, our attorney general has multiple times, made arguments against the registry now, so I don’t think that, you know, she’s, you know, she could be forced by her situation as being the chief law enforcement officer, the state’s defend this, but like I said before, I’m not entirely sure her heart is 100% behind this in the first place. The second thing that is interesting is that the Sixth Circuit didn’t decide on those grounds, but they also very clearly said, you know, we weren’t hostile to those grounds the case just we just reached on different grounds. And you should bring those to us again. So they go in and more likely to rule in your favor, they more or less said it was at the very end of the Sixth Circuit decision, which was pretty surprising that they went that far. And so I think the tea leaves to some extent have been written on this end, you know, I mean, they were the ones who originally found it unconstitutional in the first place. Now, that doesn’t mean that it doesn’t buy them time. So they might be, you know, there might be a reason to do it, even though they know they’re probably going to lose. So I don’t disagree with what Larry’s saying. But I do think that there is at least some chance I’m better than zero chance that, you know, that, that this, this, that this that the the ag doesn’t bail them out, but maybe they maybe she will.

But it’s supposed to be their job to defend the laws of the state. And the way we would like for them to do what we’d like to do when we do disagree with something. But since it’s presumed constitutional, and that hasn’t been ruled on yet. That would be the Attorney General’s job is to say to people and acted this and until it’s thoroughly exhausted on appeal, my position our position is state of Michigan that this is valid. This is valid law technically been ruled on before, just what was it two grounds The Sixth Circuit reached? Right. But wasn’t that no law by Cleveland with the previous?

That’s correct. And the state’s entitled to what appeal? That means they can also follow the cert petition, which I doubt they would do, but they’re entitled to have this. They are they’re piled up to Cleveland. And I’m just saying what I think is a better than 5050 chance that they would do that. But But right now, politically, this is a bad time, but a time this is going to be 90 days before before so we add 90 days to the benefit. We’re middle of February, March, April, May. I don’t know when Michigan’s primaries, don’t keep track of all that. But if candidates haven’t had their primary election, yet, they don’t. Want to be knocked out in a primary? If they have had their primary by then they don’t want to be knocked out in November general. And this is the worst time of the world to be to be tried to do a positive reform. This is a great time to be doing a crack down reform. So so the inclination would be to want to be tough in the eyes of the voters, because that’s what the voters are clamoring for. on sex, the registration if you go out Oh, I mean, she was just advocate, just to play devil’s advocate and sorry, this, but I think that they have an argument to make, that whatever they do, could be tougher than the alternative, which is to let it lapse.

Unknown Speaker 50:41
You have to essentially let the judgment stand,

Andy 50:44
which then ends in 90 days the entire thing. Everybody prior to 2011 it’s just they’re off the roster.

Larry 50:51
They cannot do that. Take like politically cannot. I mean that’s wishful thinking Josh to say that. They’re just gonna say, well, we give up.

Oh, no, that’s what I’m saying is that because they can’t say we give up, the legislator can say whatever they do pass is tougher than the alternative. Like not that we did this, we did this because to save Michigan from the alternative, which was judge Cleveland’s ruling, now, the article cover,

I agree with you all that they have political cover to say that we’re forced to do something. But you also have an opponent in November is going to say, if you elect me, I will do this rather than that soft stuff that they’re doing. And that’s the part you’re not analyzing.

Andy 51:34
Let me interject this there’s a someone who sent me a comment that someone posted on one of the news websites. So I’m going to read what this person wrote. So bear with me, these are not my words. These are not Larry’s words. These are not Joshua’s words, but this person said and his name is Norbert, which says that’s right To hell with the child victims when the constitutional rights of miscreants perverts are at risk. What a world we’re living in the crypt No, again is getting privileged treatment while his victims are treated merely as so many ciphers. First of all, child molesters should never breathe free air again, but instead be in prison for the rest of their natural or unnatural lives. Secondly, anyone convicted of murdering a child should definitely face execution. as I’ve stated many times before, in response to these measures to protect and enable these scum, they are a malignancy that has no cure except prison and or execution, just as a cancer, they should face total and complete removal from our society. I only say that on the heels of the politics out of this discussion that the public at large, pretty in favor of these kind of loss.

Unknown Speaker 52:37
Sure. I mean,

Andy 52:39
yeah, and that, but I say it and that’s, that’s, you know, that to Larry’s point of the political risk of, of the legislature, like letting it all lapse and saying, well, we lost and we’ll just go home and, you know, we’ll go work on driver’s license issues or something like that.

Josh 52:53
Yeah. My argument wasn’t that they would ever let it lapse. My argument was that they were putting a sit that they would say, if they were asked if they were in trouble Stop. And someone said, Why did you do this? And they’d say, well, the alternative was to let it lapse. So I the only thing we could do is make a constitutional version, or it would have lapsed entirely. And I

Larry 53:11
agree with that Josh, that

Josh 53:14
I write their opponent would say, Well, I would do something harsher. The problem with that is the court already said you can’t do something harsher. So you know I mean, we don’t change an election but I mean the politicians in a terrible situation it’s not you know, they didn’t create it. I’m not sure there is a good answer for them in this situation except the way which you were right is a possibility.

Well, I got a I got an email from from somebody last week that was confused that that I was so I tried to come up with an analogy about about the situation because they were confused about hardest our discussion. What what I was trying to make as a point is that when you when you when you when litigation, you’re not you’re not entitled to anything more than what you want. And what you What what the best analysis I came up with would be in a boundary dispute between a couple property owners. We’ve got Smith and the Joneses. And the Smiths have encroached on the Jones property and built a structure. And the structure could be anything they probably knew, for example barn to an outbuilding to a fence or whatever, but the dismissive have encroached beyond the boundary there properly. So the Joneses hotel dismiss, we’d like you to back off and I said, Sorry if that’s our property. And the remedy is to go to court. That’s what our systems based on to solve disputes if they can’t be resolved amicably between parties, and if so does the declaratory judgment filed and the surveyors come in and the experts testified the court finds that dismissed have encroached on the Joneses, which is what happened in this law, the lawsuit was filed. And the and the that the trial court found that there were encroachments in that the registry had encroached and areas that were not upheld on appeal, the appeals court decided that they had it coached by violating the Ex Post Facto Clause in 2006 and 2011 by imposing the proximity restrictions and by imposing this three tiered 333 different terms of registration and the enhanced version to comply with AWS. Well, then at that point that the Court declared that they had been on approachment in the Constitution, this is same as a property when the court declares that you’ve been crushed on the property, then the question becomes what is the remedy? You can let the specific Joneses try to work out a remedy which might include replanting the property and selling them part of it, maybe include renting it, it may include paying for an easement for 10 years. I mean, there’s any number of things. So the Michigan ACLU and the attorneys preferred, that, that there be an agreed upon settlement, because it would include a rewrite of SORNA. That was what they hoped for, and that that’s an admirable, it’s a great admirable wish, but you didn’t win a rewrite of sorta What you won was that 2006 and 2011 members tip or regulatory scheme to become punitive. So therefore, that’s what you’re entitled to if you force the court to gratitude relief that you’ve won, but they ask and if you read the opinion of Judge Cleveland on page six, he says a July 2018 platers woofer partial summary judgment of ex post facto claim on behalf of the subclasses member that’s a year and a half ago, plaintiffs requested declaratory injunctive relief but deferred for later the briefing on question of saurez amendments, whether there are several different means a dead motor ruling. While this motion was pending, the parties agreed to focus our resources on legislative reform breads and litigating severability. So the people who are cussing out the court for all this delay. The court was holding off because that’s what the parties asked the court to do. The court was asked not to rule until the legislature had a chance to legislate it would be equivalent to the Jones Smith property to spirit Judge, you’ve given us our declaration that there’s been an encroachment. Let us now try to work it out. And the judge will say, great. I don’t want to decide what the remedy is I don’t want to have to order that structure to be torn down if you guys can come up with remedy, fine. But what the political analysis that I applied was based on 30 years of political experience, there was not a lot of incentive for the state to legislate for the legislature legislature because the missing link is what just came to tax came down this week with there’s a date certain when the red shoe would not be enforceable. Up until then, there was 44,000 reasons not to enforce, to legislate because the enforcement was still taking place. Now, there is a shift in the dynamics because the court has given them a date certain when you can no longer force this. That’s what I was trying to explain. The the plaintiffs are entitled to the relief they’re one they’re not entitled to Have a rewrite to their liking. If you’re going to force the court to solve this, you get what you want, and nothing more.

Unknown Speaker 58:07
I don’t think I was disputing any of that. So it was

Josh 58:13
a listener comment. Why does the court weigh all this on? The court waited because the court was asked to wait.

Larry 58:21
What about just as simple?

Josh 58:23
Well, I mean, just a little behind the scenes kind of thing. I do think that there had been some pressure from I think it was clear that the judge, as you just mentioned, preferred that that was the way that it worked out. So I mean, I’m sure it was a little more. Everyone was kind of working behind the scenes together to get that result, but you’re right, it didn’t work out pretty well.

And that’s what the court mentions and the opinion that the the court deferred ruling, but for that, tell us how they put it, say the the parties were unable to reach a resolution and that’s that’s, that’s what I expect. it. That’s not what I wished for, folks. That’s what I expected. Because politically, it’s a lot riskier to do anything, it’s now the court has forced their hand and roughly about 90 days, they’re going to have thousands of people no longer on the registry, and they’re going to have thousands more who have restrictions set, we’re in effect, they’re not gonna be in effect. That’s a powerful incentive start legislating

Unknown Speaker 59:26
about any funny side note real quick, was actually,

Josh 59:31
again, behind the scenes kind of stuff. But, you know, my understanding throughout the whole process was that they actually made a lot of progress on writing a new form a new SORNA and that all the people acted in good faith. And at least the story I’ve heard is that pretty close to the end, the governor’s office just decided there was no political capital in it and pulled out their support for it, which is what Larry’s talking about, but many of the people actually did negotiate in good faith. Almost against their own, probably best interest for for a fairly long time. And I think a lot of progress actually was made, which might end up being helpful down the road. Let’s

Andy 1:00:10
just for clarification, I forgive me, you keep saying 90, is there a 90 day provision in here versus the 60?

Josh 1:00:17
It’s 90 because the there’s a 30 day notification period. Well, and then it

wasn’t the 60 starts running from when final judgments entered. This is not fair. This is this is an opinion. But the parties the judge decent, the issue of final judgment, and that is going to be negotiated like the previous laws, what’s parties if you if you people can’t come up with a with with

a bachelor, my understanding, Larry, I think it’s 30 days notification period, then they have 60 days to pass legislation or final judgment is entered. It’s my understanding.

Andy 1:00:54
Brenda and chat said what I keep saying is that I sure hope the advocates of various sorts are showing up and working with legislators ticket a good rewrite.

Josh 1:01:03
I will say that, you know, the the people on the ground in Michigan have been amazing. The little group Michigan citizens for justice, which is, uh, has about probably 30 total 3040 total members across the state has touched every single legislative office in Michigan has met with the lieutenant governor has met with the governor with with the office of the governor. And you know, so I mean, they’ve been working their butts off to be present all over the legislature with a very small numbers. And it’s, it’s pretty impressive, really what a small group of people can do when they put their mind to it.

Andy 1:01:41
What was it just going to escalate? Oh, okay. How, how hard is it to take a comparison of a super benign registry and maybe like the 2003 Alaska registry like kind of blend those together to make the quote unquote, the perfect constitutional registry, and introduce that and does that give Enough political cover?

Josh 1:02:01
I don’t I don’t think it does. Because people are going to look at the proposal. Those who would like to be at office, we’re going to say, representative and Senator so and so is sponsoring a bill that would no longer require those on the registry to do these things here. This is totally dangerous. And this is going to put a big gap in our community of safety. And I don’t think you I don’t think you can propose a ban on registry and not be attacked.

Andy 1:02:28
So it has to include all of the thousand foot restriction things and internet notification.

Josh 1:02:35
I don’t say it has to be us man about a benign registry.

Andy 1:02:38
Yeah. But I mean for them to propose one then the the opponents would then attack it as not being strong enough on these horrible people that have committed these terrible crimes.

Josh 1:02:47
I don’t know where their magic line is where that they’re going to get attack. But a totally non registered like, I’d propose I can guarantee you would be attacked. Of course, I

mean, they’re in a I mean, they’re between a rock and a hard place. Sure, in a lot of ways, and whenever they propose it’s going to get attacked by the people running against that, because it’s just it’s like free money, you know? Yeah. It’s, you know, it doesn’t make, it doesn’t mean that they don’t have to do something because the alternative is to let it lapse and then they, then their opponent will attack them. So I’m letting it laughs You know, I mean, it’s, it’s, it’s zero. So,

I would like to get back to the question that was asked that I was cut off one to finish, I’m going to read from the opinion, defenders will be permanently joined from enforcing any provision of this or I guess, members of the ex post facto subclasses that will be permanently injured from enforcing the provisions described a part three, be of this opinion against any rhetoric, the parties will immediately begin efforts to formulate a joint proposed form of judgment, which is what I was trying to explain, which will become effective 60 days after entry. So the court has to enter a judgment, which it hasn’t done yet. And the parties are going to propose a judgment to the court. And then once that judgment is entered The 60 day window will begin to count. There is a provision but Josh is right in there. But this case, our judgment hasn’t been entered yet. This is an opinion, this is not a judgment. And that’s on Page PAGE 20 out of the order.

Yeah, I, I’d have to go back through and look again, but my, you know, I talked to a few people, I’m pretty sure that at some level, the legislator has a certain set amount of time before the opinion becomes,

Unknown Speaker 1:04:32
essentially goes into effect.

Josh 1:04:36
So be a separate thing, which is talking about how the parties can work together. And so I’ll have to reread that to make sure I’ve got that right. Well,

I just read it. It’s 60 days from when the judgments that are I’m guessing that the judgment can be finalized in 30 days, I couldn’t be I could take 60 days to agree on the judge.

I think the judgment is supposed to be entered in the 30 days. I think that’s part of they’ve noted for But again, I could be I’d have to reread it

30 days, I’m thinking within 30 days that judgment can can be agreed upon. And what the judge is going to do is if the parties can agree on what the judge what the judge is gonna set, tell each party, present your proposed judgment, and I will decide what the judge wants. That’s, that’s what’s going to happen. So I mean, the judge is not gonna let this drag out too long.

Andy 1:05:21
He made a clear little splinter on what the difference is, like, to me, it seems almost obvious with the differences, but can you give us with the difference between opinion and the judgment is,

Josh 1:05:30
this is the underlying explanation of how the judgment came to be. The judgment is actual order, the court will be very short. it’ll it’ll, it’ll it’ll proclaim who won, and it will proclaim what the relief is, but but it won’t be anything like this 32 pages where we’re reading now.

Yeah, I would say something like, Hey, everyone, before April 2011, you can’t have the registry enforced on you anymore, everyone. After

Nobody, he’s made it clear that they don’t have a lot of time. And he made it clear previously that the delay is not he’s not interested in further delay. He’s interested in the in the constitutional violation ending, because the Sixth Circuit said that the that the in their opinion that that it should cease and desist immediately and it hasn’t ceased nor has assisted. And the judge is ready. I don’t know who appointed to the bench. I haven’t done any research on that. But clearly, he’s fed up with it. And he respects the Sixth Circuit opinion. And he’s not going to let the state manipulate him any longer.

The craziest thing? It’s, you know, I mean, I don’t know if the politics matters this much as he’s actually one of the more conservative justices in Michigan and the Sixth Circuit. The person who wrote the Sixth Circuit opinion is actually a very conservative judge, too. So it’s, it’s not as Larry would say an example of my liberal do gooders doing their due gutting.

You can always kind of liberals to do the right thing on this day, actually. You’re are dead wrong. Sorry, issues on this. They’re there. They’re there. They’re big on the metoo movement they’re making they’re big on lot of things I disagree with.

Andy 1:07:10
Yeah, so he was appointed by bush in 1990. There. Okay, thank you. Um, how about if we can move on and like zoom out a little bit? What does this do for other states specifically in the US in that same circuit? So this is from will and it goes, if the thousand foot rule is part of the constitutional issues with the Michigan registry, would that also apply to Tennessee if the restriction was found to be unconstitutional, not solely based on retroactive application that dose addressed with this apply to all of the Sixth Circuit?

Josh 1:07:44
What it is we’ve had this conversation before and for the benefit of new listeners who haven’t heard it, nothing automatically just a starts. The way the law enforcement works is the laws in Tennessee are presumed constitution. So nobody in Tennessee is going to say, Oh, well, they can’t do the submission and more, so we better cease and desist, they’re not gonna do that. But what this does do is it gives a person in the Sixth Circuit, I believe, Tennessee is it on six circuit, it gives, it gives them a controlling precedential decision to work crop to file a claim in Tennessee. Now, unfortunately, only the 2006 and 11 amendments, all the stuff that Cleveland found his most recent order were not a part of tooth out of the of the Sixth Circuit censorship. So the proximity restrictions were, but it would give you a good strong basis to litigate because the state of Tennessee would be put in a very defensive position because they would have to somehow distinguish how there’s, the analysis would be different. So as I’ve said many times before, Tennessee, you need to actually put together a legal team. You need to actually put together a plan to class, you need to actually put together a pool of money and you need to actually litigate rather than wishing you need to do some litigation. Or having

Andy 1:09:04
having this as a feather in your in your head as part of as part of your documentation that you’re pushing forth. I mean, like this would carry a pretty large amount of weight, not as if it were from another circuit where it be just like, hey, they said this over there. But this would be like, we said this, and we’re part of the same area.

Josh 1:09:21
It would be it would be binding, if if there was no way to distinguish if they couldn’t distinguish their way out of it, you’re first going to try to distinguish your way out of it. And you’re going to try to show us different if I find the Attorney General Tennessee, I’m going to say, Well, yeah, we do have proximity restrictions here in Tennessee, but we only apply to the level three offenders who have had to do a process and they’ve been, they’ve been a judge to be more dangerous. Therefore, what Michigan was doing, they were applying these restrictions to everybody. So therefore it’s distinguished, distinguished Well, we got a separate analysis. But if there’s no way to distinguish their way out of it, the outcome is likely to be the same because the district court in Tennessee is going to have to find that without distinguishable factors that this that that that they’re bound by the Dallas vs. cider decision.

Andy 1:10:09
Interesting.

Josh 1:10:10
Okay. Yeah, that’s a long period of speaking where I agree with everything Larry said.

Andy 1:10:17
How about how about moving forward and zoom out things even further and go out to the rest of the United States where you have pretty horrendous registries and I want to probably put Michigan in one of those categories. But you know, most of the southern states are pretty crappy. What about I guess, the same thing that you just said about Tennessee is you got to put together legal team then you can throw this document in there as this is like a piece of the puzzle and funding and attorneys and all that crap and start running things up the flagpole in that regard.

Josh 1:10:45
That is correct. And this is a enormously expensive. The State of Michigan agreed prior to the second round of litigation. Because of those two case. They agreed to pay the University of Michigan School of Law And the ACLU of Michigan $1.8 million in legal fees. And I can absolutely guarantee you that they did not pay 30 bless. So this has cost the state millions of dollars on Michigan’s a relatively wealthy state. So if it costs $5 million, that’s really a drop in the bucket to the state of Michigan. But the point of making is not so much about it being of drain on the state of Michigan. It’s a drain on the law firms that would try to do this for you course, of course a need money because this is going to devour their practice on the Georgia case, which we’re working on, but there’s an appeal pending because the butts can have Sheriff has the bunny, unlimited resource to file an appeal, the legal team. I’ve got the brief that’s going to be filed Thursday to be editing. They’ve got about 100 hours in doing that brief, just that brief alone. About 100 hours worth of work between the two lawyers on our team,

Andy 1:11:56
and they get paid $25 an hour.

Josh 1:11:58
Well, they’re not getting paid today. I’m saying until until they win. They’re not getting paid anything until they went.

Andy 1:12:05
I was being facetious about what the attorneys rates probably are. And it’s not $25 an hour,

Josh 1:12:10
well no longer touches a $250 an hour, there was a there was a bleep out. But But narshall, the National Association for rational sex offense laws, they put a little bit about into the escape case up front to be a buffer against the total loss. But these lawyers are in this for well over $100,000. And this is just beginning because when the 11th circuit won’t, but I’ve predicted and I still predict we’re going to win the 11th circuit is going to flush this appeal. And then we’re gonna have to go try this case with the merits. And then they’re going to appeal again after we lose. I mean, after they lose on the merits, because we’ve already got an advanced opinion from the district judge that tells us that we’re going to win with the case ultimately goes to trial. I think they’re going to appeal again, because they’ve only appeal to preliminary injunction. So they’re forcing us to do a whole bunch of work. Point is folks, get over your entitlement mentality. start contributing to the cause financially, because that’s what it’s going to take to move litigation. It’s going to take resources, it’s going to take lots of them.

Andy 1:13:09
I was going to go on a little rant about a sale you about something that you’ve said a bajillion times about, you know, how people vilify them for the various causes that they support. And here the same organization is potentially creating a pathway for 800,000 900,000 of us to have significant levels of relief, and they’re in the hole for a couple of million dollars, whatever. And every one of us needs to pony up some money to to offset that and relieve that stress.

Josh 1:13:42
Well, now in that case, that’s not the case because the state agreed to pay them as the prevailing party and that was what and I’m assuming and all the time has had passed, they’ve been they’ve collected that money. So so but but suppose they had not prevailed. Suppose it had been the Fifth Circuit like we just talked about with SDS how towers cases case out of Texas suppose they had lost after they invested all their members resources into this, I suppose that had gone against them.

Andy 1:14:08
They would definitely not be interested in funding and other challenge until you know if if our people weren’t supporting them.

Josh 1:14:13
Well, and most of our most of our people don’t support it, most of our people are anti sell you to the max. But go ahead, Josh.

I was gonna say I do think that, you know, if nothing else, everyone who is on our side of the street, you know, should take the time to find a way to thank Marissa mocker Minh and Paul Rheingold, who’s the guy at the University of Michigan Law Clinic who’ve been working on this case pretty much non stop for years and years and years and years. You know, I mean, Marian works on other cases too, but you know, she’s taken this from the beginning and done incredible work and so you know, we owe her a, you know, a great debt. This is one of the biggest cases that’s ever happened to reform the registry.

It’s a fantastic when I have nothing but praise For them, I have no criticism or second guessing. If they had asked me at the time, I would not have been as willing to wait for the legislative process to work because I did not have great faith that that that it would work. But they had very, very rational reasons for doing what they did. And the practice of law is you have opinions about the best course of action. I think I was talking to Brenda this morning or late yesterday evening about the Georgia case. The appeal that’s disappearing on the on the Halloween case, both sides were arguing that the the mootness doctrine, and both of us are right about to witness mootness doctrine, because it all depends on the interpretation. And we’re arguing one direction on the mootness doctrine, and they’re arguing that this case should be overturned on appeal, that injunction should be dissolved, and they’re arguing the mootness doctrine from another direction. So I don’t have any criticism. Nobody should take anything that I’ve said about criticism. I just say that politically When you’re expecting the political process to deliver for you, you’re going to likely be disappointed because until public opinion shifts, it’s not practical to take a posture to start dismantling the registry. This just not.

Well, I think, you know, I mean, just to play a little bit of devil’s advocate, and I was around for some of those discussions when they were happening. You know, I think that the, in the back of their mind was always that the best way to get judge Cleveland to actually for something was to go through this process. You know, I mean, I think they were hopeful that the legislature would do something. I don’t know how much they really believed necessarily would happen. They were hopeful.

Well, and I have nothing but admiration for what they’ve done. And right now, I think that if I’m wrong, I’ll be delighted. If they, if they come up with a but I registered within within the timeframe. I’ll be delighted, but I just think the odds are not We look around the country, that’s just not likely the way it’s going to go. But I hope that I’m wrong and come back say, gee, they surprised me.

Well, what do you think that? I mean, I, you know, if I personally, I think if they don’t do anything that that works out pretty well for a lot of folks too. But you think they’re going to do something, you just think it’s going to be worse? I’m kind of confused. Like,

if, if I don’t think it’s gonna be worse, I don’t I think they’re gonna be just like Pennsylvania. They’re gonna try to reinstate as much as what the Court declared unconstitutional as they possibly can.

Yeah, I think they’re gonna have a hard time finding courts that will enforce that, because it’s pretty explosive.

Right, right. But it’s presumed constitutional. So you have to wind this thing up all over again.

Unknown Speaker 1:17:39
I don’t know. I mean,

Josh 1:17:41
that you can’t presume it unconstitutional. Just because you don’t like it is presumed the same thing? No, I didn’t say the same thing I said, as close to what they would like to reinstate as much as they can. So what would be what would be the difference? If they said, Judge, you’re right. You know, the way We we have a great deal of sympathy for the proxy restrictions, say they peel off part of them, and not all of them and say they take this street address off the registry, they just put 400 block of Eastern South East Grand Rapids. That is an improvement because it’s a lot harder to know which house in the 400 block to put the project out through what if they did that, then you have to go litigate all over again?

Well, I mean, they would have to do it in a way that answered the argument that that was made about proximity.

Okay, well, part of the problems with proximity restrictions as I understood them, and we’re going to go long along if we keep going through through this but let’s say the beginning the unclear unclear how to measure what if they define exactly how to do the measurements, and it certainly helped

Unknown Speaker 1:18:45
it definitely make a difference.

Josh 1:18:47
And they end up property has to be used for the purposes intended like say if you have 100 acre parcel, and the other main property aligned to property line, what if they say it’s from it’s from the outermost property line of Sex Offenders or residents are where they reside to is a structure that rather than to the boundary. Yeah, I think you’ve got a brand

new law. I think that there is certainly a chance that with proximity, they could do something like that where they actually decided to apply the line of the find an objective line, I think they could probably do that. And they can do that with all the things that have been with certain, you know, I think, you know, it depends on who you’re talking about in this white said, one of the options is that they can essentially let the thing lapse for people before 2011 and then try to rejigger as much as they could, you know, and keep it like what you’re talking about, for all these other restrictions. Now, another option is they could try to do that for everybody. And I think that you know, that they get into a lot more trouble there would be a lot harder to pull that off with, you know, ensuring that there was an enforcement given all the stuff Cleveland said about the problems with enforcement. of multiple different, you know, where police, you know, the vagueness problems that are created by the multiple levels of enforcement, pre 2011. I think you get into it’s a lot harder for them to create something they may do it anyway. I just don’t think that be enforceable.

Well, but But again, it’s presumed constitutional upon an act. So they pass a bill and then it gets, it gets challenged, but it’s still presumed constitutional, you’d have to ask for an injunction, you have to wind up litigation all over again.

I don’t think it would take long to get that injunctive relief in this instance, because it’s been it’s one of those things where it’s been tried and retried to the point where all the judges are probably, I just I don’t know, maybe you’re right. I could be just being naive. I don’t know.

Well, we’ll We’ll soon find out. But but they, the presumption is that anything they come up with would be constitution, and it would be a new complaint would have to be drafted. And there would have to be litigation all over again. And if you want a doctor for You would have to meet that burden of showing that you’re likely to succeed on the merits, which, if it’s enough, like this version, they would probably be able to do that. But what if there’s dramatic differences? But it’s still a registry that we don’t like?

Well, I think that’s probably going to be the case. You know, I mean, that that’s probably likely there’s not gonna be as long as there is a registry, there’s probably not going to be a registry that we like, I, I don’t know about everyone in here, but I’m kind of opposed to the idea of registry experience. So

Unknown Speaker 1:21:27
I’m all for it, man. Bring it so so.

Josh 1:21:31
But well, it It got so bad that all you had to do is as as male and a form every year, I doubt you would be fine. And there was no picture of you. And there was no requirement to do anything else. I mean, that would be a minimal inconvenience in your life.

Sure, it would be much better for sure.

So and that would be a constitutional register. But see, they’re not gonna do that because that was that doesn’t satiate the thirst for vengeance that the population has to based on that email that or that post that that person made. So that kind of registered with but but They tough to sell?

Well, that’s a pretty good example of that post that you did have. One of the things that I think that people in our community been doing better, which is banding together respond to posts like that. And I think you’ll notice in the comment sections of a lot of things like that where people have banded together, that a lot more and more people are becoming educated. And a lot more and more people are realizing that there are problems with these things. Now, you’re not going to reach all the people, you know, you’re not going to overwhelm all of that. But I think we’re doing a much better job as a movement of not letting those things just stand. We are indeed.

Andy 1:22:35
All right. final final tally is anything else anybody wants to throw out there before we close all this down?

Unknown Speaker 1:22:41
I think we’ve done a good job, Andy.

Unknown Speaker 1:22:43
I think so.

Andy 1:22:45
I do want to announce that we have two new patrons, Larry, I’ve been forgetting a friend of mine, and he’s going by no soy Nadia, which for those Spanish Lee inclined, you know what that means. And then we also had a new one Brent, those are Two new patrons that we have. So I want to thank those individuals and also thank you to all of our patrons who generously support this podcast every month. Fantastic. So we’re closing out of the hundred we’re only two away. Only two plus maybe a little bit more than that. Josh, thank you as always for joining who said some pleasures there.

Josh 1:23:20
I said we’re gonna do that hundred before the years out.

Andy 1:23:23
I think we probably could get there. Josh, how do people find you and what do you have coming up? You have a new episode coming up. What is it going to drop on Monday?

Josh 1:23:32
Yeah, the episode on Monday is about Kermit Kermit gration, you know, the intersection between incarceration and immigration.

Andy 1:23:40
And I guarantee you that the the transcription services not going to know that word.

Josh 1:23:45
Probably not. I don’t know. One of the saddest thing about the transit says transcription services that every single time it gets it can’t. It can’t do my name at all.

Andy 1:23:58
All right, then it also had a tear. Time with dough was the yes being referred to in the case that kept coming up with all kinds of crazy formats for DOS.

Josh 1:24:06
You can find us at decarceration Nation com or on any of the services, iTunes, you know, Google all that stuff all the places you look for podcasts were there.

Andy 1:24:18
And you’re probably not like trying to compete for space with the word decarceration Nation either.

Josh 1:24:23
There is one other podcasts that has the word decarceration in it only it’s D carcere. Rated. Okay, but you know, it’s a fairly small neighborhood for sure. And

Andy 1:24:34
you do a little bit of some Twitter and LinkedIn too so people can find you there as well. Right?

Josh 1:24:38
Yeah. At Joshua be Joshua be Whoa, on Twitter. That’s the best place to find me pretty much anytime.

Andy 1:24:44
Out frickin standing. Larry, anything else before we roll out?

Josh 1:24:49
That’s it and and thanks, everyone for the generous comments that we received last week.

Andy 1:24:55
Yep. And I hope everybody has a fantastic night and fantastic weekend and love y’all and that’s all I got. Have a great night guys.

Unknown Speaker 1:25:02
Yeah, thanks, Andy

Transcribed by https://otter.ai

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