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Comment

To the reviewer: I am resubmitting, because I believe my previous submission (ke2-4fqx-wird) is not going to be posted because I am providing personal identifying information. The following is to avoid adding attachments, but the whole comment exceeds 5000 characters, therefore it is done in two parts, but I am attaching whole document in case.

Part two of two parts

5) Page 49335: (center column, last paragraph), the DOJ calls out the US Supreme Court case law, Smith v. Doe, 538 U.S. 84 (2003), conveniently failing to mention that 3 of the 9 justices, or 33% of the US Supreme Court dissented – contradicted the DOJ’s statement; “Section 72.3, and its modification by this rulemaking, are constitutionally sound.” Where the dissenting Court stated: “The registration and reporting duties imposed on convicted sex offenders are comparable to the duties imposed on other convicted criminals during periods of supervised release or parole. And there can be no doubt that the “[w]idespread public access,” ante, at 99 (opinion in No. 01-729), to this personal and constantly updated information has a severe stigmatizing effect. See Brief for the Office of the Public Defender for the State of New Jersey et al. as Amici Curiae 7–21 (providing examples of threats, assaults, loss of housing, and loss of jobs experienced by sex offenders after their registration information was made widely available). In my judgment, these statutes unquestionably affect a constitutionally protected interest in liberty. Cf. Wisconsin v. Constantineau, 400 U. S. 433 (1971). It is also clear beyond peradventure that these unique consequences of conviction of a sex offense are punitive. They share three characteristics, which in the aggregate are not present in any civil sanction. The sanctions (1) constitute a severe deprivation of the offender’s liberty , (2) are imposed on everyone who is convicted of a relevant criminal offense, and (3) are imposed only on those criminals. Unlike any of the cases that the Court has cited, a criminal conviction under these statutes provides both a sufficient and a necessary condition for the sanction.”

The majority opinion concluded registration is ”not sufficiently punitive”, “not an affirmative disability” go to footnote 1.

“severe stigmatizing effect”, “punitive”, “severe deprivation of the offender’s liberty” This is precisely what the other comments demonstrate through their stories. (and certainly my own experience) The collateral consequence of a collateral consequence of a conviction, i.e. the public’s view of registration, results in punishment. But the government will say it is not responsible for the public’s reaction to registration, citing registration is required for “public safety”. I challenge the government to provide the statistical evidence for the effectiveness of registration, it is never produced.

I note that when I have to appear for registration bi-annually, during that time, I am in custody, even though it may be a 1-3 hour wait process, multiplied by 2 times a year, times 25 years, that’s 50-150 hours (2-6 days) of custody. (not including the additional times required to appear for changes in employment, automobile, etc.) This results in an accumulative violation of my “constitutionally protected interest in liberty” as the above dissenting opinion stated. Because 2-6 days is spread out over a longer period of time, suddenly it’s not considered a violation of liberty? 2-6+ days of custody is punishment.

footnote 1:
This in opposition to the same Courts”s decision in Carafas v. LaVallee, 391 U.S. 234 (1968), stating: “It is clear that petitioner’s cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; [Footnote 4] he cannot serve as an official of a labor union for a specified period of time; [Footnote 5] he cannot vote in any election held in New York State; [Footnote 6] he cannot serve as a juror. [Footnote 7] Because of these “disabilities or burdens [which] may flow from” petitioner’s conviction, he has “a substantial stake in the judgment of conviction which survives the
satisfaction of the sentence imposed on him.” Fiswick v. United States, 329 U. S. 211, 329 U. S. 222 (1946). On account of these “collateral consequences,” [Footnote 8] the case is Page 391 U. S. 238 not moot.”

“Collateral consequences” are” disabilities or burdens”, and all this was written long before registration became a new controversial collateral consequence of a conviction. This demonstrates the majority’s ruling is in conflict with its earlier ruling.

Attachments1

Attachment1_prejudicial_statements_by_the_DOJ_80192020

 

 

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