Has the US Supreme Court ever held that "Registration" was "punishment"?
-- JUDICIAL JURISDICTION --
It would be easy to dismiss this argument, because Weems -v- US, 217 US 349 (1910) is a case about excessive punishment, saying, it is not applicable to our discussion about registration. However, the US Supreme court, in Weems, recognized that "governmental surveillance" was punishment, because the Phillipine legislature made it punishment by writing it into their laws.
All Phillipine law was conformed to the US Constitution when the United States got possession of the Phillipines in 1898 before the Weems case. see Kepner v. United States, 195 U.S. 100 (1904)
Today's courts have held, that sex offender registration" is not punishment, because legislatures didn't intend it to be punishment! But, this holding is based upon the fact that, today's legislatures simply never mentioned any intent, to punish, or not to punish, in registry laws (NO MENTION is INACTION); the issue was not even addressed. Thus the court's holding is an interpretation of INACTION of the legislature! i.e., the failure of legislatures to even address the issue of "Punishment." Hence the court has made law where they was none before! The court did not interpret an issue in a law, but instead, created an issue not mentioned in the law, hence, made law on a new issue!
The courts' interpretation of legislative inaction on an issue never mentioned by the legislature, is an improper exercise of judicial power, as such violates the "Separation of Powers" clause of the constitution.
The failure of the legislature to act, does not give the judiciary permission to interpret that "failure to act" as a constitutional or unconstitutional action.
The Weems court, in discussing the power of the legislature:
"In Hobbs v. State, supra, and in other cases, prominence is given to the power of the legislature to define crimes and their punishment [i.e., LEGISLATIVE ACTION]. We concede the power in most of its exercises. We disclaim the right to assert a judgment against that of the legislature, of the expediency of the laws, or the right to oppose the judicial power to the legislative power to define crimes and fix their punishment, unless that power encounters in its exercise a constitutional prohibition. In such case, not our discretion, but our legal duty, strictly defined and imperative in its direction, is invoked. Then the legislative power is brought to the judgment of a power superior to it for the [217 U.S. 349, 379] instant."
Courts only have jurisdiction to interpret legislative action, to determine when legislative action is constitutional -or- unconstitutional. The failure of the legislature to act (i.e. mention whether or not punishment was intended) is neither, a constitutional -or- unconstitutional legislative action; it is legislative inaction. Accordingly, the court cannot substitute its interpretation for that of the legislature.
If courts have the power to declare "inaction" as a unconstitutional act, then courts have the power to -READ INTO A LAW ANY ISSUE THEY CHOOSE- and override ex post facto -or- any other constitutional clause/s with mere word constructions!
Courts then need to look at the effect "registry laws" have on the registrants they control, sex offenders. The affect/effect on the offender/s is the key. The standard used by courts today is ineffective to uncover the "System of Punishment."
Is there a substantive deprivation, to sex offenders -and/or- their circle of associations, of one or more recognized constitutional rights? Is there a limit to governmental intervention into private lives? Traditionally "punishment" has been something between the offender and the government, that is what current tests test for. However, now the "punishment" is -so to speak- being fettered out by a -government agent-; the Public! Through Megans' type laws and what they have evolved into today!
Has sex offender registration, including what it has evolved into today, community notification, church membership, residency laws, housing laws, employment laws, education laws, community monitoring for a lifetime, crossed the constitutional divide? Are these laws giving new meaning to excessive punishment?
-- EXCESSIVE PUNISHMENT --
Weems was convicted for falsifying a public document, and sentenced to:
"The punishment of cadena temporal is from twelve years and one day to twenty years (arts. 28 and 96), which 'shall be served' in certain 'penal institutions.' And it is provided that 'those sentenced to cadena temporal and cadena perpetua shall labor for the benefit of the state. They shall always carry a chain at the ankle, hanging from the wrists; they shall be employed at hard and painful labor, and shall receive no assistance whatsoever from without the institution.'
Arts. 105, 106. There are, besides, certain accessory penalties imposed, which are defined to be (1) civil interdiction; (2) perpetual absolute disqualification; (3) subjection to surveillance during life. These penalties are defined as follows:
'Art. 42. Civil interdiction shall ... .
'Art. 43. Subjection to the surveillance of the authorities imposes the following obligations on the persons punished:
'1. That of fixing his domicil and giving notice thereof to the authority immediately in charge of his surveillance, not being allowed to change it without the knowledge and permission of said authority, in writing.
'2. To observe the rules of inspection prescribed.
'3. To adopt some trade, art, industry, or profession should he not have known means of subsistence of his own. 'Whenever a person punished is placed under the surveillance of the authorities, notice thereof shall be given to the government and to the governor general.'"
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"Surveillance of the authorities" then, to "Sex Offender Registration" today! |
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Then: |
Today: |
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Applied to: Anyone sentenced to "Cadena temporal with accessories. |
A few judges now are making this part of their sentence, but for the most part, legislatures swept up all sex offenders without it being part of the person's sentence. Finally, if a sex offense only and on probation or parole, or supervised release, it is also applied to these folks.
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Hearing required beforehand: Yes, part of sentencing. |
No, none is permitted excepting in a few states with tiered registries. The law is silent on this issue in most states.
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Prison Sentence: Yes. |
Yes.
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Declared Dangerous: No |
Some states have it written into their registry laws, that, all those registered are dangerous to the community at large. i.e., Michigan.
Further, in all states, political figures (including legislators) publically declare that "the public must be kept safe from these sex offenders," which is pre se a declaration of dangerousness, even though they didn't say this in their legislative clothes.
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Term: Life |
Length of registration (10, 25 years, or life). Further, it is unknown whether states will actually remove registrants when that term is up.
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Restricted residence areas: No. |
In some states they have established "No Sex Offender Residence Zones."
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Restricted from entering geographic areas: No. |
In some states with residency laws, registered offenders are also not permitted entry (without direct supervision) into the properties of the schools, day cares etc that are being protected.
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Need -PERMISSION- before moving: Yes |
No, unless one is on parole or probation, or supervised release.
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Need -TO NOTIFY- before moving: Yes |
YES, if move is inbetween states. Further, if one is on parole or probation they are prohibited from moving inbetween states.
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Rules of inspection: Presume that means, authorities can search domicile. |
No, unless a registrant is on parole, probation or supervised release.
However, as to offenders in the community, local law enforcement does periodically come to residence to verify that registrant is living there, and often speaks to neighbors.
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Offender Verify Address: No. |
Yes, all offenders must do so at least annually, and in most states it must be in person, and for some offenders considered high risk every 90 days by reporting to local authorities. In some states by annual notice which must be mailed back to authorities within xx days.
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Employment required: Yes. |
No.
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Community Notification: No. |
Yes, worldwide notification via the Internet, however, a few states do not post on the Internet. Further, some states publish only those offenders who are considered a high risk of reoffense.
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Community Notification Method: None. |
Varies by state, generally the Internet, local police stations, door to door canvassing, posters in the community nearest where the registrant lives, community meetings, newspaper ads.
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Community Notification Frequency: None. |
Upon release from prison or jail, and when a person moves.
More recently police have been notifying their community when a person acts suspiciously as reported by one or more community members.
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Community Notification Costs: None. |
Some states charge registrants a fee as high as $50.00, but waive it if indigent.
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Community Notification Effects: None. |
Loss of employment, loss of housing and associated costs of moving, vigilantism, personal family is also affected, Churches often deny membership and/or attendance at services or other church functions, many other subtle denials because no one is required to advise the registrant if a reason for denial of a service, is due to being in the registry.
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Community Notification of Personal Information: None. |
This varies by state, but generally, name, address, photo, driver's license number, and description of the offense/s. In a few states they also disclose the social security number.
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Forced to submit DNA samples. No. |
Yes, in all states.
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Forced to pay for processing of DNA. No. |
Yes, in some states as high as $500.00.
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How any court can say that "Today it is not punishment," is beyond any reason, a mere word construction! If it walks, talks, acts, and smells like a duck, is it a duck?
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