Listen to RM177: Montana Judge Orders Removal of Person Convicted in Idaho
Registry Matters is an independent production. The opinions and ideas here are that of the hosts and do not reflect the opinions of any other organization. If you have a problem with these thoughts FYP. Recording live from FYP Studios, east and west transmitting across the internet, this is Episode 177 of Registry Matters . Good evening. How are you?
Fantastic. And now the Registry Matters has passed my age.
Oh man, look at that. We should have like some like pops and whistles and all that stuff. Did you get all your snacks and all that stuff consolidated leading up to the show?
Yes, I did. I closed down my cannabis.
You wait, you close down? What?
I didn’t realize that you were into these? Are these like brownies? Are you smoking? What are you doing?
Well, I’m actually going to put in an application for the edibles. But I don’t have my card yet. But I am going to be looking into that.
Holy moly. I would like to remind everybody to click like and subscribe and share and all those other fun things to support the podcast, it would be fantastic. If you know what Larry if we could get to 1000 subscribers on YouTube, then we could make some money on YouTube.
I’ve heard that there’s an attorney I’ve been watching in Florida that’s been building his disability practice with YouTube and his subscription I mean his subscriber list is growing exponentially.
Oh, do you? You mentioned something about trying to possibly do some cross content of some sort? Did that move anywhere?
I haven’t reached out to him just yet on that I’ve been listening to many of his episodes, and he politicizes the disability and this process a little bit more than I feel comfortable with. So I would have to have a conversation that we’re not. We’re not taking partisan positions here on things. But he does tend to do that more than I feel comfortable with. But otherwise he gives really good information.
Interesting. All right. Well, that’s enough of the pre-show banter. I suppose now that you’re getting dope for the show, you’re going to be like, Hey, folks, welcome to the show. And you’ll be all slow and silly sounding. What’s going on tonight, there’s something kind of big you want to talk about isn’t there?
It’s a case from Montana, that has to deal with a person who had a registration obligation in Idaho and he subsequently relocated to Montana, and he has successfully petitioned, not petitioned, he has successfully challenged the constitutionality of the provision that requires that catchall provision. So we’re going to go do a deep dive, that’s going to be our major event. We’ve got some questions from people who are inside prisons. And we’ve got one question from person who’s outside prison and we’ve got some articles. And we are going to go back on episode 160. And talk about Indiana.
Are we’re gonna make it in an hour?
You’re gonna have to be very fast.
Okay, well, let’s go. Would you like to start with like the audio clip the voicemail message?
Sure, that’s a good place to start.
Alright, here we go. Here’s a voicemail message from a listener.
Unknown Speaker 03:26
Yes, I was listening to the podcast and I on YouTube. And I heard Larry say, to be a tier three in the state of Virginia, you had to be convicted with at least two charges. I only have one charge. And I am a tier three in Virginia, going on 21 years. I was retroactively changed in 2008. And I was hoping he could give an explanation on this on the next podcast about state of Virginia. If it’s you gotta have two charges to be a tier three, because I’ve definitely only had one charge. Thanks a lot. FYP.
I kind of thought I sort of remember hearing you speak it that way, though.
Well, the reason why we’re coming back on this is because apparently I confused everybody. And I’m going to try to clear it up. While we talk about tiers, we often get confused in that in and of themselves. When we talk about tiers because some states have levels where they’ve actually assigned a person a level based on their offense and our risk. They’ve done an individualized assessment. And the Adam Walsh Act, the Federal Adam Walsh Act, does not support that approach. They support the approach of categorical look at the offense. putting it into a tier category. And one of the categories as a tier three. And tier three is, by federal recommendations, anyone who has previously been at tier two, and has a subsequent conviction for another sexual offense. That would having previously been a tier two, that would make that person a tier three. But before the Adam Walsh Act ever existed, a lot of states, the overwhelming majority of states already had lifetime registration. Remember, tier three, under federal guidelines is lifetime. Many states already had a lifetime provision for people who had multiple sexual offense convictions. So what I was trying to communicate to him is that some states consider it to be multiple convictions, if it comes within the same case. And some of the majority of the states consider it to be multiple convictions, if it’s within two separate case numbers. And the way to think of it is like a habitual offender statute, a person can go out and commit 27 felonies and never be apprehended. And if you’d look at that, literally, you’ll say, well, that person was a habitual offender. No, they weren’t a habitual offender, because when they were brought to justice on the 27th felonies, if they were all combined into one case, that’s one judicial intervention. Sure. So it would not be fair to make that person a habitual offender merely because they have not previously had any intervention for us to determine if they are going to continue breaking the law or not. Well, that same concept would apply with a sexual offense registry requirement. If you make a person a lifetime, simply because they have multiple convictions. Within the same case, that’s not really fair, because we don’t know if intervention worked. So that’s why the federal guidelines as rigid as they are, they don’t recommend making a person two or three based on multiple convictions unless a subsequent conviction to the earlier conviction that triggered the registration obligation. So I was trying to convey to him that it’s very confusing, and some states will make you like Colorado, you’re not eligible for removal. If you have two convictions within the same case, We had an attorney Colleen Kelly, who explained that, and so that was what I was trying to convey.
Alright, well, that turned out to be like, clear as mud again, I’m just kidding. I’m, like, all of this stuff Larry turns out to be super complicated. Every state has their own different set of rules and conditions that fall under this or that, like, this is like always like a nightmare. And when you talk to this person, well, their conditions are very different than we’ll talk, you know, we’ll talk to somebody else in a different state, like between their case, and then the statutes don’t say every person is their own individual little entity. It’s a pain in the ass.
That is correct. Virginia has the prerogative of making a person a tier three. If they choose to, even though they did not meet the definitions that the feds recommended. Virginia can make everyone a tier three if they like.
Because that at least equals the recommendations.
Okay. I was just saying, because like, the way there’s the federal guidelines, but then everyone else, not necessary everyone else. The states have their own tiering structure, and what falls into what those are just recommendations of what they want you to do. But the federal guidelines if I’m not mistaken, correct me, of course, is there’s no limit. There’s no living or work presence restrictions. So the states have added those. Correct. So they can just like, well, we’re not going to follow anything that they say, and we’re going to exceed everything, Unless it crosses the boundaries of being unconstitutional. They can do what the F they want to.
That is correct. And remember, the feds are only dangling this in exchange for federal funds. You don’t have to do any of this. But these are minimum standards to receive federal funding. You need to at least classify certain people as a tier three. It’s a much narrower list than actually what the states have that have adopted their version of the Adam Walsh Act. Most of the states have gone beyond what’s recommended. But you can do that, because you’ve met the minimum recommendations. Again, Virginia can declare people lifetime there that weren’t recommended to be lifetime by federal guidlines. It’s not that confusing. The feds merely have made recommendations for you to get your money you have to do these things.
And I’m totally going to need you We’ll move on, I’m totally gonna need you to set up this video clip of why you want to do this one.
Okay, so what we talk about frequently on here is the difficulty in doing criminal justice reform. Now, let’s be clear, I’m talking about positive reform, anytime you make changes in the law that’s considered reform. I’m interested in positive reforms that result in fewer people in prison, fewer people being arrested, and alternatives to incarceration. And I talked about the difficulty and I say that there’s vilification, primarily coming from the conservatives. So I’m setting this up to give you an example in real time. We have a special election for any member of Congress, in my district here because our Congress person, Deb Halland, was appointed to serve as U.S. Interior Secretary. So there’s a vacant seat and the candidate have been named by their respective parties in a special election is going to be held June 1. This is the conservative running and this is what he is saying about his opponent, Melanie Stansbury
Here we go. Press this button and everything will work.
Melanie Stansbury 11:15
We need to pass the Breathe Act in Congress.
Unknown Speaker 11:17
Melanie Stansbury supports the most dangerous legislation in America as Albuquerque faces record numbers of homicides, legislation and de funds and dismantles the police empties every federal prison in 10 years murderers, rapists, and child molesters walking free, “we need to pass the Breathe Act ” in Congress” stop the madness.
Unknown Speaker 11:39
Stop Melanie Stansbury before it’s too late.
Mark Moores 11:41
I’m Mark Moores and I approve this message.
Oh, that’s a pretty aggressive, like they’ve been they seem to have just taken like a quick little soundbite. We need to pass the breathe, act like okay, we need to do it right away. There’s probably a whole other sentence after that. That describes why. But they cut that off.
Yeah, I don’t know enough about the Breathe Act to really talk about that. That’s not to focus. What I’m focusing on is the vilification. There’s no one running for office that’s advocating emptying all federal prisons that I’m aware of. And if that’s in the Breathe Act , again, I don’t know. But I can tell you, no responsible candidate or even irresponsible candidate is advocating emptying federal presence. But what’s really so disingenuous about that, is that federal prisons are not filled with rapists and child molesters. Because for the federal government to have jurisdiction over sexual offences. There has to be an interstate component, most rapist and most child molesters would be in state prisons. So to attack Melanie Stansbury for putting rapists and child molesters on the streets. That’s so disingenuous and even murderers. In order for there to be a murder, there has to be a federal jurisdictional hook. Most murderers are in state prisons.
You ever remember the DC sniper? Like in the early 90s? I do a Malvo is the last name and like so they were trying to figure out if I recall, they were trying to figure out a way to make it a federal component. But those crimes were committed in DC I probably not DC that would have been federal? No, I guess it would be still like in that district. But there’s no way to prosecute them. So they tried to do it in Virginia where it had the harshest sentence. But because they killed people in those three areas, there’s still no federal component that hooked them in is, as I recall, I could be wrong, but that’s what I recall.
The absolutely correct. And what makes this so disingenuous is that the average voter, for the voter in this state, or where they are, they don’t realize that. So they’re hearing this as sectionalized ad, that murderers rapists, and child molesters will be free walking amongst us within 10 years. And they’re going to vote in a terrified fashion for the guy that sponsored that ad. I don’t even want to really give him airtime. But they’re gonna vote for him. A lot of our people that are on the registry will vote for him, because he espouses conservative values, but yet they profess they’re for reform. This is an example of what makes reforms so difficult. Melanie cannot actually go out and talk about what she’d like to do, because she’s gonna receive this from now until the primary not the primary till the special election on June 1. This is what’s coming. This ad and variations of this ad are being run continuously here. This
I’m sure they’re doing it on the radio a lot.
Radio and TV. This is what we need to stop folks. You need to call the people who run ads like this and say I would have voted for you but I reject what you’re doing? And if you do that they will stop running these type of ads, they run these ads because they work.
Doesn’t this then promote the idea that politicians are just all liars? You can’t trust any of them?
Why would it do that?
Because of you’re aware of it, I don’t suppose that the average voter is necessarily aware of it. But as you look at things, I remember the governor of Georgia here doing some similar kind of ad against the candidate that was running against him, and putting up something that she voted against something that made life easier for PFRS s. That she was doing it because it didn’t promote anything that was good for public safety was based on evidence and whatever that making it a 2000 foot living restriction, whatever it was at the time. But that’s what that was, was running on the air, then, because they’re making it such an exaggerated point. Because it’s not anything reality based. It’s just about fear, then people go what politicians lie. So the people on the people that would analyze these things, they know that that side of the politicians lie. And then going in the other direction, the right side leaning people would watch ads from left leaning politicians doing things similar, exaggerating and taking things out of context against their opponents as well. So both sides, do things that are exaggerated, and then no one knows what to believe from anybody.
Well, I guess if you framed the question that way, I would agree. But I think we have some responsibility to be informed. you couldn’t live 40 50 or 60 years, and not realize that no one has proposed closing federal prisons, all of them. we’ve, had a prison system ever since the country has existed.
Long before that. And all the other countries prior to there have been a way to deal with people that have performed some kind of thing against society.
There are people who have advocating sitting fewer to prison, but no one has talked about closing all federal prisons. That’s absurd. I think we have a duty to inform ourselves. It might mean giving up one afternoon at Hooters or giving up watching the Broncos play football, but you’re gonna have to spend some time understanding and be an educated and informed voter.
Hmm, I don’t know, Larry, that sounds like a pretty tall order right there.
Or, hey, they could like listen to this podcast and possibly get some ideas on how to make life easier for PFRs. Hmm, there’s a thought there’s only a roughly a million of us nationwide, like actually directly impacted. Forget all the other ones. Like the handful of people in chat that are just one degree out from the person. That’s the registry person. I don’t know, man. We’re never gonna win. All right, Larry, let’s move on then. Because we have we have like 8000 questions and things to cover about this case. There’s Randall Menges versus Austin Knudsen. Is that what it is?
Well, I would say Knudsen But
Okay, Knudsen Knutsen and and forgive me. Because like I’m butchering your name, and I apologize. But let’s let’s dive over there for a little while, because this could take up like the majority of the time, and then we’ll have to skip over, not skip, but really compress the stuff at the end. You said it’s like, I mean, it’s 70 pages, right? I read all of it. But so you put this in here, and it’s from a US District Judge in Montana. What is this about sir?
Well, it is a challenge against Mr. Knudsen, who is the Attorney General of the state of Montana and Gary Sedar, who’s the bureau chief of the Montana crime information Bureau. And Sarah Malikie who is the head of the sexual and violent offenders program for Missoula County Sheriff’s Office. The question before the court is whether Montana may force plaintive Randall Menges to register as a sexual offender for engaging in consensual oral sex with another male back in 1993.
Why do we care? Why do we care about something from you know, there, you’ll be surprised I read all 72 pages and I found it absolutely fascinating. It was an amazing read and I stayed up for all of it. He is required to register having consensual sex with a 16-year-old when he was 18 years back in 93. That’s a long time ago there that we would care now. But as I understand it, that wouldn’t require registry obligation, but he engaged in homosexual activity. And Idaho did not go lightly on him. Did they?
They did not and I was having Preshow chat with another person I said this might explain why Idaho Senator Larry Craig a few years back decided to do his homosexual activity in the restroom in the Minneapolis St. Paul airport, rather than the state of Idaho. Because apparently they do not take kindly to crimes against nature, he was sentenced to 15 years. And upon his release from imprisonment, he was required under Idaho law and still would be required under Idaho law to register as a sexual offender. And, and that is, as at some point, he relocated to Montana. But he still could not escape his registration required because under a Montana sexual and violent offender registration act, he must register as a sexual offender in Montana, because he’s required to register in Idaho.
Right, just and that’s what we talk about pretty much all the time of if you were ever required to register or convicted of a sexual offense in another state, blah, blah, blah, all the little nuances there, you have to register here.
Yes, that’s the famous catchall clause that they have. And so yes, as he has to register as a sexual offender, because anyone who is convicted of a sexual offense has to register and critical to this case, it includes any violation of that definition includes any violation of a law of another state, to which the offender was required to register as a sexual offender after an adjudication or conviction. So he is a person he was required, and still would be required in Idaho to register because they haven’t updated anything in Idaho. So he would still be required registered today. So Montana said, Well, I mean, your person, right? You did relocate here, right? you’re required to register in Idaho. Right. So you have to register here. So what what’s your problem?
I’m surprised at how fast it moved because I hear about things. It just takes, like the even the Georgia case like the signs in the yards, that took years to get to go through before it got heard by the federal judge. How did this just happen? That he just filed in December? How did he pull this off in a handful of months?
I’m still trying to figure that out. Okay, you’re, you’re correct. That did move very quickly. He filed a suit, the December 9 of 2020. And he asserted a plethora of violations. He said the registration requirements are unconstitutional as applied to him. Remember we talk about facial and as applied, and he said it violated the due process clause of the 14th amendment. He said it violated the Equal Protection Clause of the 14th amendment. And he said it violated article two section 10 of the Montana constitution. And he moved for a preliminary injunction requesting that the court enjoin the defendants and their officers, agents and employees and attorneys and any person who is in participation from requiring him to register the sex offender in Montana. This This was an amazingly fast-moving case.
Did he also challeng in the source state in Idaho, about the constitutionality of the law?
He actually did. He has a parallel action going in Idaho. He’s challenging the constitutionality of the law, because the US Supreme Court had decided back in the 80s that it was okay for states to criminalize sodomy between same sex individuals. And then some years later, that was the Hardwick case. And then some years later, and I don’t know, the year that they decided Lawrence, but I think it was Lawrence vs. Texas, they decided that it was a person’s right to engage in sexual activity of a person of their choice. So he’s challenging the constitutionality of a registration requirement, because he’s arguing that the US Supreme Court has said that that behavior he engaged in cannot be declared criminal. So that is, in fact, a parallel challenge. And interesting, the defendants moved in light of that parallel challenged that this action in Montana should be stayed and held in abeyance. The court did not go along with that the court set a hearing on all the state’s motions, and decided to let the case proceed on the merits. And they had a hearing on March 30th. And Menges testified and this this case, there’s a decision been rendered and it’s just amazing.
You talk about the importance of standing did either of the state’s contest standing? And why would they contest standing?
Well, they would contest any because you’d ever get to a to a merits decision if the person doesn’t have standing. So yes, it appears that they did. Because remember, you cannot lose a case if you don’t go to trial? I’ll tell to people all the time and they roll their heads. If I’m the state and I can avoid you ever having a trial, I have no risk of losing, do I? fair? So it appears that they did. The court had the following to say, at all stages of litigation, I’m quoting from the opinion at all stages of the litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether the interest exists at the onset of the case in order to establish standing plaintiffs must show one, they have suffered an injury in fact, that is a concrete and particularized and actual or imminent, not conjectural or hypothetical. Remember, with a challenge called international Megan’s Law, I said it can’t be hypothetical. Yes, we’ll see. I didn’t invent that this is legal doctrine. Two, the injury is fairly traceable to the challenge action of the defendants and three, it’s likely as opposed to purely speculative that the injury will be redressed by a favorable decision. That’s on page nine of the opinion. So folks, I don’t make this stuff up. This is legal doctrine about standing at about what the courts can do. And you have to have standing, not liking something is not enough for you to take it to court unless you have standing.
To circle back to the point you just made about IML international Megan’s Law, they were challenging that this was going to create some kind of harm, but they hadn’t decided what they were going to do with the passport something like this, where the marking hadn’t been identified, whether it was going to be some big red X or some kind of tiny little marker, how do you say that there’s any sort of harm done. That’s what the attack was?
That is correct. They were speculating of what the Congress had put in there at the last moment, this passport identifier, marking, and they left it up to the Attorney General, and the State Department to figure out what it was going to be. And prior to figuring out what it was going to be, you cannot allege harm. You might have the requisite standing. But you can’t speculate about harm, because we don’t know what the marker is going to be yet. So therefore, we do not know what harm it will inflict upon you. And legal doctrine that I didn’t invent. And people roll their eyes when I told them that you can’t prevail at this point, because we don’t know what they’re going to do. So therefore, you’re speculating, you can’t do that.
Okay, it has to be an active damage. It can’t be some sort of future and you’re saying speculate hypothetic whatever. It can’t be some imaginary thing that you’re saying, well, this could damage it has to be damage done.
Well you can, the harm may not have happened yet. It can be imminent, but the harm wasn’t imminent, because again we didn’t know what the marker was going to be like. So therefore, we didn’t know if it was going to harm you or not.
Um, let me go back to the point. You mentioned earlier about that Montana requested its stay of this case pending resolution of the constitutional challenge in Idaho. The judge denied that request. Why and did he and was he correct?
I believe he was legally correct. And I will again read from his written opinion. quote, The court also notes that the focal point of defendants’ argument in favor of a state is that resolution of the Idaho litigation will have an impact on the suit is far from certain. Any ruling from the Court Presiding over the Idaho litigation would have little more than persuasive effect. If the court concludes the Idaho statue obligating Menges to register as a sexual offenders is constitutional this court is not precluded from reaching an opposite conclusion, or Montana’s requirement, and the defendants need not alter their enforcement or Montana law in response. So that’s directly from the judge. And I think he’s right, because Idaho cannot remove him from Montana’s registry. Montana could say, you are a person, aren’t you? You were at one time convicted there. Were you not? Even though they’ve declared the law invalid now. It is a fact that you were convicted, they could continue to maintain the posture that you have to register. And the judge is absolutely right. Anything that the Idaho court would do without necessarily preclude Montana from registering him but will preclude Montana from registering him is what this judge did. He precluded them.
Okay. Tell me what the crux of the case is. The Montana Attorney General said this will blow a gaping hole in the registry. Do you think it will?
I don’t think so. I don’t think it will at all. But that’s exactly what you would say in the position he’s in because I would just about bet that the public, not having taken the time to understand that this was consensual sexual activity between two people very close in age. That would not have been illegal headed occurred between a heterosexual couple. The average person in Montana is not going to understand that. All they’re going to understand is that there was a person on the registry that being let go. But the reason why I think that it’s correct is because the underlying criminal statute which obligates Menges to register in Idaho and according to Montana, does not concern itself with the age of the of the sexual partner. As the court noted, quote, Menges’ underlying criminal conviction is not for having sexual contact with a minor it is for having sexual contact with another male. And that’s why Montana law requires him to register, not for having sexual contact with a miner, but for having sexual contact with another male. And that’s from the opinion at page 42. So this is different, because it’s clear that Idaho has a problem with same sex conduct. And that’s why they required him to register. You hear the people, the LGBT community saying that the registry targets them. This is an example of what they are talking about.
What do you think the most critical and deciding factor was in the case?
Wow. Well since he asserted, he made several assertions, in my opinion, although he got relief on all three, it was the equal protection clause. The court stated quote, Montana has no rational basis for forcing Menges to register as a sexual offender on the basis of a 1994 Idaho conviction for engaging in oral or anal sex with a 16-year-old male, when he was 18 but not forcing those to register as a sexual offender who were convicted in Idaho in 1994 for engaging as vaginal sex with a 16 year old female. That I think was the most critical thing. Because here you’ve got, we clearly have an equal protection clause, and you would be protected had you had had heterosexual relations, you would be protected. But the same constitution doesn’t protect you, when you had same sex conduct. I think that’s what carried the day. But consequently, that operation of Montana law flouts to guarantee of equal protection, and Menges enjoys actual success on the merits of equal protection claim. That’s the other quote on page 58. I think that was of paramount importance to the judge. We have this clause in our Constitution, both Montana and US Constitution is for reason, you can’t deny people equal protection. That’s why the US Supreme Court decided that people can marry regardless of gender, gender, because the Constitution is blind to that.
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So let me try and understand this a little bit better from my point of view. The 14th amendment was put in somewhere roughly right after the Civil War. So late 1800s. So that has been there that made that the three fifths person thing and all that. So when did it become? I guess I’m trying to figure how to word this so that it’s clear and concise. When did it become the thing that same sex had the same equal protection as heterosexual, then for it to apply to this because Iowa law, Idaho law made it so that this was illegal, sometime prior to 1993? a crime against humanity? Whether hell you call it a crime against nature, but somehow now it’s okay. When did that switch occur? And how did that occur?
It happened when the Supreme Court ruled since like, about 10 years ago with the Defense of Marriage Act that that okay, people have the right to marry. The Constitution has an equal protection clause, it is totally blind. It doesn’t say you have equal protection as long as you do this with an opposite sex. Sure. So therefore, for all these years since the Defense of Marriage Act was struck down by the US Supreme Court, Montana, I mean, Idaho has not changed their law. So someone has finally put the challenge to them. I don’t know if he’ll succeed in at Idaho, but he has certainly succeeded in Montana, and they’re gonna have a hard time turning the ship around. Now, having said that, there’s always concern because the supreme court can change its mind, we’ve talked recently on episodes about how the Supreme Court has, has reversed itself on key issues and the blistering dissents by some of the liberal justices. Justice Anthony Kennedy is now gone. And we have a much different court than we had when the Defense of Marriage Act was passed. Is it possible that the Montana Attorney General could file a cert petition in the Supreme Court of the Ninth Circuit affirms the trial judge? Yes, it’s possible. Is it possible that they could take a second look at this and say, Well, that was that liberal bunch? And we don’t see it that way? Yes, that’s possible. They could, they could backpedal and reverse themselves on Lawrence, but I don’t hope not. I hope they don’t. But they could.
If we do if you want to drag this out for like, another hour or so but what did the What did the court decide on the other claims?
Well, the court actually awarded him relief on the other claims as well, they said it violated substantive due process, equal protection and his right to privacy. And these violations are ongoing. But to me, the most important one was the equal protection. I think, without the equal protection argument, he wouldn’t have won on privacy. And I’m not so sure due process would have carried the day as well. But but in conjunction, he’s one on all three. Now, this is an example of the judge has got three things he ordered relief so only one of them has to stick for the Ninth Circuit to affirm. And I banking on equal protection sticking.
That is a pretty powerful argument these days, as I see things coming up about equal protection. Do you think I kind of know the answer this, do you think Montana will appeal?
Now they’ve already said that they will, because it’s blowing a hole in their registry. And they’ve announced that intention already. And I’d like to cut them a little bit of slack because that is kind of their job is to defend the laws of the state. Now, in conjunction with defending that law, they could, the Attorney General could tell the state legislature, you were wrong on this. I encourage you to change the law. The problem with that is there are political risks. Can you imagine, we just played a clip about what happens with vilification? Can you imagine if this Attorney General and let’s assume that, that he’s up for reelection in 2022? Can you imagine if he doesn’t want to defend the sexual offender registry and he has an opponent that would like to assume the Office of the Attorney General of Montana? Can you imagine what those campaign ads would look like?
They would be pretty strong. I imagine.
That’s the reason why that’s the reason why he’s going to defend the law.
Does this apply to other people of a similar condition, same sex kind of relationships with a with a non minor and a minor? With things dating back that far?
I would say it will. It will give relief, if there are others, and how many there are in a small state like Montana, who knows but it’s not going to blow the gaping hole. This is not going to people can wish that this says that. That the catchall provision requiring registration for out of state convictions magically goes away. It doesn’t this doesn’t get you there. This is a small victory. Huge for this person. It’s huge for the reason that we we’ve talked about. But this does not. This does not negate the catchall provision.
When we when we rolled over into I think it was 2020. I asked you to give me an idea of what you think like the victories were and you said we continue to build a body of case law, I think is how you word of it is does this go into that kind of bucket?
It absolutely does. It serves warning now and we have to hope that the Ninth Circuit affirms, the Ninth Circuit that is. We have to hope that the Ninth affirms. Now in the case of a recent adverse decision from the Ninth they overturned in the Stephen May case. But if they affirm This puts the states on notice in the Ninth Circuit that your catchall provision better be carefully analyzed, because you can’t just throw a catchall provision in there that includes unconstitutional provisions like this does, and expect it to withstand scrutiny. And, this is an amazing victory, but it’s not going to dismantle the registry or that catchall provision.
So for the 12 people that live in Montana that are on the registry, this only impacts them with a pending thing in Idaho. What does that do for the Ninth then? or anybody else?
Well, it would be a similar application if there are other states who have those type of statutes still on their books, like Idaho does. And it’s triggering registration obligations all throughout the Ninth Circuit. I can tell you this, if I were living in Idaho right now, and I had a conviction for a crime against nature. I would be packing my bags and headed toward another state. I mean, why would you want to stay in Idaho be subject to the registry when all you have to do is argue this case? it’s not precedential yet, but it soon will be. It’s the Ninth upholds it. And if I had a choice to live in Montana, or live in Idaho, I would choose Montana if I didn’t have to register. Wouldn’t you?
oh, I see what you’re saying. Okay, so you’re saying the people that are already living in Idaho that you should be figuring out how to go move so they could possibly apply this challenge?
Everybody benefits from this challenge if the Ninth upholds it. The same legal doctrine would apply to anybody who has a crime against nature that’s putting them on the registry.
And then people in the other 11 districts, they could then use this as supporting information.
Well, anybody in the whole country can move to Montana. But you know, if the Ninth affirms. But I’m saying if I’m living in Idaho, I’m certainly going to get out of Idaho. I don’t know what other states require you to register for a crime against nature, but I certainly wouldn’t stay in Idaho if I had to register for that crime.
There’s a lot of there’s a lot of potatoes there aren’t there?
Is there anything else on this before we duck out of here?
Let’s get out of here.
Unknown Speaker 41:09
I guess we let’s see, let’s uh, let’s jump over you wanted to acknowledge a question submitted by someone you want to go over that super quick.
Sure. We have a subscriber among our inmate subscriber base. This person subscribed for a year and he said Wisconsin prison, his name is Sean. He sent an amazing question. And we’re teasing it now for the next episode we’re going to talk about will Wisconsin extradite him from a foreign nation if he leaves Wisconsin, before completing his supervision? And we’re going to try to unpack that on the next episode. 178. So tune in if you’re interested in leaving the United States. I’m wondering what they’re likely will if you flee?
I’m interested in leaving the United States. Geez. And then we can move over to Fred is a good friend of mine and he asked about a clarification on a ruling that occurred came out of he said he posted a link about criminal legal news, said Seventh Circuit, Indiana’s sex offender registration act, other jurisdiction requirement unconstitutional violation of right to travel and you had some thoughts about them.
Yes, we took this case up on episode 160. So prison legal news or criminal legal news or whoever it is way behind the Registry Matters podcast and FYP education. But what we talked about was that these people had Indiana convictions, that they left Indiana, they never would have had to register as I stayed on RM 160. None of these challengers would have been required to register if they: one, had not moved out of Indiana and returned to Indiana after 2006; or two, had not moved into Indiana into Indiana after 2006. It was in 2006 that Indiana law was amended to include the requirement that forced a person to register if they had to relocated to Indiana and had a registration obligation in that state regardless of whether it was equivalent the Indiana which is kind of what we’ve been talking about in previous episodes. But Indiana got a little bit too cute. And so the challengers won on this. They have the right to travel and leave Indiana and return to Indiana and not be disadvantaged because they in fact, did travel. And that’s what happened to them. The mere fact that they traveled caused them to be disadvantaged and you can’t do that. The Equal Protection Clause protects the people of Indiana you can you can leave and you don’t get disadvantaged for coming back.
So this is only traveling, going to visit your grandmother and then you come back a week later. That’s that’s all this is referring to. These are people that are trying to move to another state and then move back.
Now these are people who had moved out and decided to move back.
Unknown Speaker 44:00
Oh, okay. Okay. Okay.
So these are people who had left Indiana by virtue of their departure and return. They were being roped in to Indiana’s registration scheme and the travel is what required them to register.
Okay. All right, then I think we we’ve done this really rapidly. Larry, we can cover some of these articles if you are.
Well, we’ve got we have a couple questions.
Let’s hit question one, and I’m going to kind of skip down a little bit since I have two questions. Can those who register post their own signs in the yard? I’m always hearing about sheriffs putting their signs to alert the public of a PFRS that lives there. Well, could you post your own? Here are some examples. When the stigma is removed, people will no longer be afraid to seek help and lives will be saved and restored. Less than 1% of sex crimes are committed by someone outside of the family. Rape is defined as whoever a slight of touch in Arkansas flight I can’t read that word Larry.
So, however slight.
Oh however slight Okay, I gotcha, gotcha. And then the second question is why doesn’t Arkansas have a halfway home for level three or four offenders? Cummins unit is filled with guys who have been granted parole, but because of their level have nowhere to go. And men have died here of old age waiting. God, that’s just awful. You can’t hey, you’ve been granted parole, but sorry, there’s no place for you to go. So stick around.
I want to take the last question first, about halfway houses. Why doesn’t Arkansas have halfway houses? Normally halfway houses or more often operated by private entities, these nonprofits, they somebody who has a corrections background or some kind of counseling background, they get together and they get a little money together and they form a halfway house. And they call it some type of rehabilitation, and then they go running to the government’s be it state or local, looking for contracts that will take your prisoners. Arkansas is not known for wanting to spend a lot of money on reintegration. In fact, most states are not but particularly the southern states are not. Halfway houses have a cost associated with you’re running program in a halfway house that cost money. So trying to secure funding for placement of people in halfway houses is very difficult, particularly if you fit int the PFR category. And then there’s one other thing that I want to pontificate about. And that’s the everybody says, wouldn’t it be great if we have a risk-based system? Arkansas, in fact, does have risk based system. And the level threes and fours have been determined to be higher risk to the community. So if you were running a halfway house, hypothetically, pretend you have a halfway house Andy pretend you want to keep your funds flowing and you want to keep good relations with the community. Because being accepted in the community is an integral part of operating a halfway house. Tell me if the word got out that you were accepting level three and level fours. Now remember, they have gone through this lovely process that’s individualized. Do you think the community that you operate in would be more accepting of your presence or less accepting? And do you think that the governmental entities that provide funding for reiteration Do you think they would be more or less or less willing to provide that funding? That’s a that’s a that’s a compound question. But
Sure. I mean, and I’m going to then expand threes and fours are people that have been deemed to be more susceptible to reoffending than level ones and twos? Correct, then, I mean, doesn’t that make logical sense that would pose challenges for the community?
That’s my point. So the halfway houses that do operate in Arkansas, when they’re trying to remain as an acceptable partner in the community, and have city zoning and county zoning and all these people off their behinds. The last thing they’re going to do is stick their neck out and be willing to take the highest risk offenders in the state. Now remember, the lovely risk-based system is what this is not a categorical approach to Arkansas. There’s actually a process you go through in Pine Bluff, and there’s a risk assessment. So this is one of the downsides when people think it’s a panacea. And I tell them, no, it really actually isn’t a panacea. This is one of the examples. The people who have had to go through that process now can’t be reintegrated because they’re deemed high risk. So the second part of that question is that they have their reasons as business people to not take level threes and level fours in the halfway house that do exist.
Okay, let me let me just throw this. So if someone had been convicted of a very, very, very minor crime, but then they end up going through this leveling process, and they are deemed these level threes and fours, if they had a categorical system, I think that’s the word you used, if they had that kind of system, they may have just been based on the crime been leveled very low, but because of the risk based system, then they got leveled very high. They could it’s a double-edged sword, it could go either way.
Absolutely, in fact, the people who think that it will be leveled low, and the risk-based systems are typically level higher, people automatically assume with a non-contact offense, that those people get candy, easy kid glove treatment, that you don’t get that. In fact, those tend to be the most repeated offenses. And they tend to be rated very high. So oftentimes, people who think they would be just in the fantasy world of being low level because they have the noncontact they would not. If you repeat something enough times like streaking, indecent exposure. They don’t refer to it as streaking anymore. But you could be rated very high in Arkansas’s system, because you’ve done it more than once. But yet, the mere act of streaking does not put anybody in physical danger. Well, I guess you could possibly have a heart attack if you saw something you hadn’t seen before. But, but there’s no real danger to the community of a person engaging that. But you could end up at a high risk. Yes. So yeah, so that’s a good analogy.
There was a very famous song about that song. Are you familiar with that song?
Yes. The first part of the question about the signs? That’s a great question. Because in our case, in Georgia, that is one of the defenses that the sheriff of Butts county has said. He said, Well, nothing precluded them from putting up their home signs to counter our sides. Now, of course, they didn’t tell the people that if a time you know. They didn’t say we assume that you don’t care much for our signs so you can certainly put up a counter message. But they’re arguing that in court right now, in the 11th circuit. Here’s what I’d say to you. If you put that sign up, while you’re under supervision, I can just about guarantee you that you will have a horrendous amount of adverse consequences. Now Arkansas, he’s more than likely going to have a huge amount of supervision because they are fond of imposing very long sentences in Arkansas. And then after a period of time they’re eligible for parole, and they serve the balance of that in the community. Its’ very similar to what Georgia does. If you put a sign up like that, your PO is not going to be happy with you. And they won’t violate you for that. They won’t say because you put a sign up. But here’s what they will say though. They will say that you are showing behavior characteristics that are not conducive to accepting responsibility. And if you’re not responding well to this officers’ motivation to turn your life around. And that you are that you are a risk to the community by the fact that you’re still in denial. That’s what they will say. So go ahead, put the sign up, find out what happens.
I can’t imagine why somebody would want to. I mean, we’re arguing in court over having the signs place that draws attention. Why would you then put a counter message up, like in advance of almost and draw that attention to yourself? Like, I would just want it to go away, and hopefully nobody noticed it while I was there.
So well, make sure I clarify When I say go and put the sign up, see what happens. That is that is code speak for do not put the sign up because yes, bad things will happen if you do that.
Obviously, that’s not what you would want to do. Yeah, I agree that yeah, this would be you being facetious and sarcastic going. Don’t do that. Very interesting. Um, yeah, like that. That last one. Like That sounds like a bad idea.
it’s a neat question. Nonetheless.
It is. That’s why I put it in here. I just, I just got that today. And I loved it so much. I said, I’ve got to answer this guy’s question.
Okie dokie. And then here is another letter that came in. It says, Dear FYP, I really like how that sounds les. Andy and Larry. I’m an inmate at Washington State doing time for a PFRS kind of crime and I saw the ad for NARSOL in prison legal news and decided to get a subscription. Wow, I was shocked to find a group that actually advocates for PFRs s instead of against us. I think I share the same sentiment as many other PFRs s in that I’d like to do more. But I understand that I am hindered by my situation. As the old adage goes, it’s a thought that counts. I also recently bought a one-year subscription to your podcast. Sweet. Thank you so very much. Anyway, I know you guys get hundreds of letters and questions, so I’ll try to keep the short. And the January and April issues of the NARSOL newsletter. There was a two-part article about the pseudoscience of the polygraph and speculation loophole. That completely sucked, by the way, and I had to wait two months to get the second half of the article that I really wanted to read. I can tell you firsthand that the speculation loophole definitely exists here in Washington. Most PFRs in Washington state have the polygraph stipulation in their judgment and sentence and it causes a lot of angst amongst our demographic. The article states the best advice is to seek the protection of legal counsel by having your attorney accompany you as a witness and advisor during the polygraph interrogation process. That’s a really neat idea there. It is advised that you answer controversial or incriminating questions with the response, I request my attorney to respond to that particular question. I was unaware that I could even have legal representation during a polygraph. And so was everyone else when I shared the article too. So I’ve got some questions. And I’m really hoping that you can address these in your podcast so I can read about it first. I know that many of the cases that are talked about in NARSOL are federal so I’m wondering I don’t think that’s true. They’re that they’re talked about in our cell our federal so I’m wondering if the advice given is directed at federal PFRs s? Or does the advice work at the state level too? Second, If I defer my questions to my attorney, does that not sit still subject me to speculation loophole as being deflection or avoidance? Third, going along with the second, Can I be jailed or violated for requesting an attorney answer my question on my behalf? FYP Thank you for all you do and all NARSOL does for us. And sincerely, there’s a PS which I won’t read. Larry, can you bring your attorney to your polygraph?
I can tell you that I did not write that article. Now I am the publisher of the newsletter. But I have to confess I didn’t read it. But I can tell you this, I would not have given that advice. I would never tell anyone to try to take your attorney to a polygraph examination. That will not go well for you. That would be just like the advice we gave to the previous person about, putting the signs. If you show up for a polygraph examination with an attorney, it is not going to go well for you. And in theory, it sounds good because you have the right to an attorney, and you have the right to have that attorney present before any questioning will ensue. The problem is, this is not a criminal investigation. This is a tool that’s being used to determine if you’re complying with treatment and the terms of your supervision. And showing up with an attorney would set off all sorts of machinery that you would not want. Because first of all, you don’t know what the questions are. The questions were composed when you get there. And they’re reviewed with you were in the pre-test interview. So therefore, you have the opportunity in the pre-test interview to object to the questions or to narrow the questions or to phrase the questions in a way that it will not provoke an adverse response. Like if a person says have you ever had sex with a person under the age of consent? That’s too broad. You’d say I have no problem with that question. But we need to narrow it. What is the age of consent? At what age are you talking about? Have I ever because ever means always so we need to narrow that question down? Have I ever had sex with a person under the age of 16 if that’s age of consent in your state since I was over the age of 18? Then you’ve got a narrow question. But if you just I am not answering that question because it incriminates me, that is not going to go well for you. If you have an attorney say my client is not going to answer any questions, because it could be incriminating, that is not going to work well for you. I would not advise that course of action.
Let me also, if you were also under the age of consent doing this, then it may not be a crime where you were so answering the question in the affirmative could give you a lot of problems when you didn’t actually like break any laws.
It indeed could but his question is about asserting his right to an attorney to accompany him to a polygraph. And if you do that, I’m not aware of it having been done. But if you do that, the polygrapher is going to go bonkers. I doubt the test will be administered; they’re going to notify the PO that you didn’t comply with the test. The PO is either going to depending on if they have arrest powers or not, they’re going to come out and take you into custody. If they have arrest powers, if they don’t have arrest powers in your state, they’re going to notify the court that you refused to cooperate with a polygraph exam and ask for a summons or a warrant one or the other. And it’s not going to go well for you. I just cannot I cannot advise this course of action. I know I’m being conservative. You can be jailed for not cooperating with this because it’s in the statute of our state. And I can’t speak for the state that he’s writing about. But I can speak to our state is in the statute, that polygraphs can be used to monitor compliance and treatment. If you refuse to cooperate with those, that is a violation of your supervision that could and likely would result in you being jailed. I don’t like to see people go to jail so I cannot advise that course of action. And does it apply to federal those decisions? No, they happen to be in federal court, because that’s the that’s the choice that courts if you’re going to bring a cause of action, you have a better chance of: A, not having a politicized outcome because the judges are there for life; and B, the attorneys bringing the cause of action, if they prevail, are going to be able to be paid and most PFRs s don’t have the financial resources. So although they were in federal court, that doesn’t narrow that in a way. In fact, I think the Utah supreme court after the Von Behren case in the Tenth Circuit, I think the Utah Supreme Court handed down a similar decision based on Von Behren. So it is the constitution the question is about incrimination and as the is the threat of incrimination real or speculative? The Von Behren case in the Tenth circuit was a little bit murky in terms of where you can draw the line and refuse to answer the question. You can’t just refuse to be polygraphed. I think you have a story to tell about a guy in Georgia who after Von Behren was decided he gave an ultimatum about paragraphs. Tell the audience what happened to him.
He tried to do that and they locked him up anyway. Yeah, he, but he tried to refuse the entire thing Von Behren just tried to refuse a single question or maybe just a couple questions. This dude was like, I’m not taking that because of this Colorado decision, he refused the whole thing.
Well, showing up with an attorney will be viewed as non-compliance. Attorneys are viewed as adversary and that in our adversarial system, that’s not an unreasonable position. And you show up for treatment, or for a polygraph with an attorney, that is going to be viewed as an adversarial stance, and it’s not going to go well.
Can we? Let’s go up to that first question. Talking about is NARSOL like talking about federal things? Or is it working at the state level? Oh, yeah, I’m sorry. That was uh, that was the first question that you just covered?
Yeah, I was I was saying that the federal court that’s where that’s where the more of the decisions are. But it’s not entirely limited because the constitution about self incrimination that’s the federal constitution that applies in all the states, your state constitution has to give at least the same level of protection as the Federal Constitution. Now you can go above, but you can’t go below, so you cannot force a person to incriminate themselves. The question is really murky here about where does the polygraph become incriminating? And that’s what the pre-test interview helps you figure out?
A person in chat is asking this. So you would get punished for using your legal right. And that’s what you’re just describing right there. This is just almost like your PO is asking you a question. Kind of off the cuff. Almost, I realize it’s an interrogation thing. I realize all that. But you’re not in a legal proceeding. And as you’ve described, if you stick to your guns, and don’t lie, I mean, excuse me until an answer and then stick to and say, I did not do the violation. You stand by that you’ve never seen anybody violated for this?
Well, what I’ve said is I’ve never seen the petition for revocation say, only in the petition, that the person showed deception on a polygraph. I have seen quite a few petitions say that the person showed deception on the polygraph. and subsequent to the, at the post test interview, they made the following confessions to this PO. I’ve seen that. But I, I don’t advise anyone to lie. FYP is not in the business of advising people to misrepresent. I’m telling you this, if you’ve taken the polygraph, and if you’ve spoken truthfully, you should not change your position. Because they say you’re showing deception. My answer would be I told you the truth. And then when I say, Well, why are you showing deception, say, if I could explain your machine, I would have so much wealth. I don’t know what I’d do with it all. But I can’t explain why your machine is showing that. All I can do is tell you the truth. And that’s what I’ve done.
I can’t tell you how the Kabuki machine told you that I was deceiving you.
And they’re gonna keep pushing here. They’re gonna say, do you have anything to tell us? And you know, we’re grown up here. We’re adults, and we’re here to help. Trust me, they’re not there to help that I can guarantee you.
And let’s let’s just make the assumption for the second question that we did bring the attorney into the office for the for the polygraph for the Kabuki machine that says if I defer my question to an attorney, does that not still subject me to the speculation loophole as being deflection and avoidance?
That’s exactly what it’s gonna do. They’re gonna see that it’s all sorts of obstruction. And it, believe me, it’s not gonna go well, if someone has a contrary experience that they’ve brought an attorney in and it’s gone. Well, please share it with FYP.
And then going along with that, do you think then, if we did the attorney there, and we did deflect the question, defer one to the attorney? Do you think that we’re going to get arrested for that one?
I don’t think you’re going to ever get to that point. Honestly, I think if the attorney is there, that test is not going to go down. I really don’t. I don’t think they’re going to test somebody with an attorney sitting there.
Back up at the top of this he talked about this. Like is NARSOl focused more on the federal side of things? I’m trying to see where that was, I remember going by it. I don’t consider NARSOL to be that at all.
Well, the way I interpret that he was asking if the case law only pertains to federal. Did he say does NARSOL only focus on federal because that’s not true.
Yeah, no, that’s that’s what I’m going after. And maybe while I was reading it, I wasn’t quite analyzing that the right way. I just that’s what the way that I thought that he was asking me so just Can you just clarify that then is NARSOL just focused on national kind of legislation or are they advocates at the state levels to?
Absolutely. In fact NARSOL focuses more on state issues. We don’t have any advocates at the national level.
Right? Because it because there’s not a lot of it happens to be like porn kind of related things. That’s probably the biggie big. That’s a federal because that happens across state lines.
Right. Plus there’s no federal registry. So we don’t we can’t fight or not existent entity.
Larry, you know there’s a federal registry and you just won’t admit it. So sure I do. I’m being very facetious, very, very, very, I don’t want anyone to come back and say, Oh, you said on 177 that this, there’s a federal register. No, show me where it is. So
Well, it looks like we’ve run out of time without getting any articles.
We did. Is there anything that you want to cover super quickly, before we move out of here?
I think we can carry some over to next episode.
Outstanding. So, we got a new patron. This is the second person to then do the annual subscription, which I’m super thankful for. And this is Brent, and I’m going to let you announce the new. This is like the Larry snail mail subscriber list. Who are the new folks there?
I’ve already forgotten.
Alright, well, it’s Sean and Edie. There are the two folks there.
And we just did Eddie’s question.
outstanding and if so thank you very much, guys. If you if you happen to pick up one of these in prison, there should be a subscribe form at the bottom of it to make life easy. And but otherwise as maybe, you know, spokes in prison and then we could get them subscribed and push this in and this would be great if we could get this into more prison and provide this information because these are like the seedlings if we want to indoctrinate people, we can indoctrinate them while they’re still in prison. When they get out. They can become lifelong subscribers if the FYP network and gain information and start their advocacy work while they’re still in.
Absolutely. And I hope Eddie doesn’t cancel his subscription. Now that I’ve answered the question.
You should sugarcoat these when people pay Larry, you should make sure that the answer is what they want to hear not something that’s true.
I’ll remember that.
Larry, as always, you are you do amazing legal analysis, and I can’t thank you enough. And I hope you have a fantastic rest of your weekend. And oh, sorry. Sorry. So I need to say these things. Um, registry. matters.co is the website. And you can find all the show notes and other things there. So but Registry Matters .co is where you need to go. And patreon.com slash Registry Matters to support the show. And with that, Larry, I bid you adieu, and I hope you have a wonderful weekend. I’ll talk to you soon.
Thanks for having me.
Take care. Bye bye.
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