IN THE TENTH JUDICIAL CIRCUIT OF THE STATE OF ALABAMA
STATE OF ALABAMA,
PLAINTIFF,
V.
CASE NO. CC 08-132
MICHAEL WALLACE,
DEFENDANT,
MOTION TO DECLARE ALABAMA CODE §§15-20-21 et seq, 15-20-23 et
seq.,
AND 15-20-26 et seq. UNCONSTITUTIONAL AND MEMORANDUM
OF LAW IN SUPPORT
The defendant moves to declare Alabama Code §§15-20-20.1 et seq.; 1520-21 et seq.; 15-20-23 et seq.; and 15-20-26 et seq. unconstitutional on the
following grounds:
1.
On February 4, 1994, Case Number CC 93-3859, State of Alabama
v. Michael Wallace, the defendant pled guilty to Rape 2. On that date
the Court adjudged the defendant guilty of said offense. Mr. Wallace
was also sentenced on that date to 30 months in prison suspended
with two years on probation. There is no indication in the record that
Mr. Wallace applied for youthful offender status and he was just under
the age of 21 at the time of the offense, his date of birth being August
4, 1972 and the offense having occurred on March 29, 1993. Later, Mr.
Wallace was convicted of Distribution of a Controlled Substance and
sentenced to 12 years on prison. (CC 1996 3332)
2. Upon Mr. Wallace’s proposed release from prison in September of
2007, he was unable to provide an address that could be approved
under the community notification act and charged with the present
offense. Mr. Wallace’s only residence was with his mother who lives
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near a school thus preventing Mr. Wallace from residing with her upon
his release.
3.
Mr. Wallace is presently charged with violating 15-20-22 of the
Code of Alabama, failing to provide an approved address upon his release
from prison.
4.
The defendant was never notified that the Community Notification
Act applied to him until he was to be released from prison. The law subjecting
him to the Community Notification Act was passed years after his conviction for
statutory rape. Written notice, given to the defendant prior to his release from the
Department of Corrections, was completely insufficient due to the fact that the
defendant cannot read or write beyond a first or second grade level and was in
special education classes through the 11th grade. The defendant’s only
adulthood home aside from DOC (Department of Corrections), has been with his
mother who lives within 2000 feet of a school or daycare. The defendant’s
mother also has limited abilities and worked diligently to provide an acceptable
home for her son in accordance the Act’s requirements. The Act turned the
Jefferson County Jail into a homeless shelter while the defendant’s mother
searched for a residence for the defendant.
Memorandum of Law in Support of Motion to Declare Alabama Code
§15-20-20.1 et seqq. Unconstitutional
I.
History of Alabama Code §15-20-20.1 et seq.
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All states adopted sex offender registration laws because Congress
passed the Jacob Wetterling Crimes Against Children and Sexually Violate
Offender Registration Act, 42 U.S. C. §14071, which conditions certain federal
law enforcement funding on the state’s adoption of sex offender registration laws.
Smith v. Doe, 538 U.S. 84, 89 (2003). The Act, however, does not require the
registration laws to be applied retroactively. State v. Meyers, 923 P.2d 1024,
1029 (Kan. 1993).
In 1967, Alabama enacted legislation requiring convicted sex offenders to
register with law enforcement personnel after conviction. State v. C.M., 746
So.2d 401, 413 (Ala.Crim.App. 1999). In 1996, Alabama adopted the Community
Notification Act known as Megan’s Law. C.M. at 413. In 1998, the Legislature
amended the act to include juvenile adjudications. C.M. at 413. At that time,
Alabama had the broadest community notifications laws of all states. C.M. at
413.
On October 1, 2005 the Legislature amended Alabama’s convicted sex
offender laws and implemented the most restrictive laws in the United States.
Some of the most notable 2005 amendments include:
1.
All violations of the Community Notification and Registration Act are
Class C felonies except some violations involving juvenile
defendants. Alabama Code §15-20-22(4)(d); §15-20-23(a); §1520-24(d); §15-20-25.1(d); §15-20-25.2(d); §15-20-25.3(g); §15-2026(h); §15-20-26.1(g); §15-20-26.2(a); and §15-20-23.1.
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2.
Sex offenders are required to register their places of employment
with local law enforcement. Alabama Code §15-20-22.
3.
The Department of Public Safety bands a sex offender’s driver’s
license and identification cards and the sex offender must have the
card in his possession at all times. Alabama Code §15-20-26.2(a).
4.
A sex offender must give 7 days prior notice to the Sheriff before
beginning new employment or changing employment. Alabama
Code §15-20-23.1.
5.
A sex offender establishes a new residence when he is domiciled
for 3 or more consecutive days. Before 2005, the offender
established a new residence after 5 days. Alabama Code §15-2023(b)(1).
6.
Sex offenders establish a new residence any time they are
released from custody even if it is the same location as before the
conviction. Sex offenders also establish a new residence when
granted probation even if the Judge never places the defendant in
custody. Alabama Code §15-20-23(b)(2) and §15-20-21(10).
7.
A sex offender creates a new residence if the offender spends 10
or more aggregate days in a calendar month at a location. This
provision did not exist before 2005. Alabama Code §15-2023(b)(3).
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8.
A sex offender cannot stay in a hotel overnight if the hotel is within
2000 feet of a school or childcare facility. Sellers v. State, 935
So.2d 1207 (Ala.Crim.App. 2005); Alabama Code §15-20-26(a).
9.
A convicted sex offender cannot live with his own minor child if his
victim was under the age of 12. Alabama Code §15-20-26(c)(4).
10.
The 2005 Amendments to Alabama Code §15-20-26(f) and §15-2026(g). added the following provisions if the victim was under the
age of 12. A sex offender is prohibited from:
a.
Loitering on or within 500 feet of any property on which there
is a school, childcare facility, playground, park, athletic field,
or any business or facility having a principal purpose of
caring for, educating, or entertaining minors.
Loiter means to enter or remain on property while having no
legitimate purpose or remaining after that purpose is fulfilled.
Alabama Code §15-20-26(f); and
b.
Accepting employment within the above described 500 foot
areas. Alabama Code §15-20-26(g).
II.
The Alabama Sex Offender Registration and Notification Laws
violate the Ex Post Facto Clause because the laws punish the
defendant retroactively.
The Ex Post Facto Clause of Article I, §10(1) and Article I §9(3) of the
United States Constitution and Alabama Constitution Article I Section 7 and
Section 22 prohibit a state from imposing retroactive punishment on those
previously convicted of a crime. If the stated legislative intent of a statute was to
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enact a regulatory scheme that is civil and nonpunitive, then the Court must
determine whether the statutory scheme is so punitive either in purpose or effect
as to negate the State’s intention to enforce a civil restriction. Lee v. State, 895
So.2d 1038, 1041 (Ala.Crim.App. 2004). Apparently, if the legislature simply
states they are trying to protect the public from harm, then the only issue is
whether or not the statute is punitive in application. Lee at 1042.
Kansas’ Community Notification Law, which is substantially similar to
Alabama’s law, was found to violate the Ex Post Facto Clause. State v. Meyers,
923 P.2d 1024 (1996). The Meyers case involved an Ex Post Facto analysis
because the registration statute allowed unlimited public access to any and all
records contained in the registration file. The Court found this provision
excessive and rose to the level of punishment thereby violating the Ex Post Facto
Clause. Meyers at 1044.
To determine if an act is punitive in its application, the Court must analyze
the following factors:
1.
Whether the sanction imposed by the act involves affirmative
disability or restraint;
2.
Whether, historically, the sanction has been viewed as
punitive;
3.
Whether a finding of scienter (mental state finding) was
necessary before the act is applied;
4.
Whether the act promotes retribution and deterrence;
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5.
Whether the behavior to which it applies was already
criminal;
6.
Whether the act has any alternate remedial purposes; and
7.
Whether the scope of the act is excessive in relation to its
purpose. C.M. at 417 citing Mendoza-Martinez, 372 U.S. at
168-169.
The Kansas Supreme Court, in State v. Meyers, reviewing a Community
Notification Act substantially similar to Alabama’s held the act was
unconstitutional, because as applied, its scope was excessive and disclosure of
sex offender registration information was unrestricted. State v. C.M., 746 So.2d
401, 419 (Ala.Crim.App.1999). C.M. at 419 citing State v. Meyers, 923 P.2d
1024, 1043 (1996). The Court held the legislative aim in the disclosure provision
was not to punish and that retribution was not an intended purpose. The Court
ruled the repercussions, despite how they may be justified, however, were great
enough under the facts to be considered punishment. Meyers at 1043.
The unrestricted public access given to the sex offender registry is
excessive and goes beyond that necessary to promote public safety. Because
the Registration Act provisions make more burdensome the punishment for a
crime after its commission, the statute violated the prohibition against Ex Post
Facto laws. Meyers at 1043.
In Lee, the State accused the defendant of establishing a residence within
2000 feet of a childcare facility in violation of Alabama Code §15-20-26(a). Lee
v. State, 895 So.2d 1038, 1039 (Ala.Crim.App. 2004). The defendant pled guilty
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to violating the Community Notification Acts’ residency restrictions. Lee at 1038.
Before pleading guilty, the defendant filed a motion to dismiss challenging the
constitutionality of the statute. Id. at 1039. The Trial Court denied the motion by
a written order but the Trial Court’s order only addressed the Ex Post Facto
argument. Id. at 1039.
The defendant appealed the constitutionality of the Community Notification
Act. Id. at 1039. The Court of Criminal Appeals affirmed the constitutionality of
the statute. Id. at 1038.
On appeal, the defendant argued the Community Notification Act’s
residency requirements were unconstitutional because:
1.
Application of the Community Notification Act violated the Ex
Post Facto Clause of the United States Constitution;
2.
The Community Notification Act violated his Due Process
Rights; and
3.
The Community Notification Act violated his Substantive Due
Process Rights.
The Trial Court failed to address the Due Process arguments in the order
denying the motion to dismiss, therefore, the Court of Criminal Appeals only
considered the Ex Post Facto issue. Id. at 1039.
In Lee, the Alabama Court of Criminal Appeals ignored the first and
second Ex Post Facto factors because the defendant failed to present evidence
he was banished or rendered homeless by the application of the statute holding
“we cannot say that the residency requirements of the Community Notification
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Act operate to establish a regulatory scheme that has been considered punitive.”
Lee at 1043. The record in this case contains no evidence that the act has led to
substantial housing disadvantages for former sex offenders that would not have
otherwise occurred through the use of routine background checks by landlords.
Lee at 1043; citing Smith v. Doe, 538 U.S. 84, 100 (2003).
The defendant failed to allege any facts to support his claim that the
residency requirements of the Community Notification Act were punitive rather
than civil. Lee at 1041. The defendant neither alleged facts to establish the
statute was punitive as applied to him nor alleged facts to establish the statute
was punitive on its face. Lee at 1041.
The defendant conceded the residency restrictions of the Community
Notification Act had a rational, non-punitive purpose but argued the restrictions
were excessive to accomplish that purpose. The Court of Criminal Appeals
ignored this issue again stating the defendant failed to allege any facts to support
this contention. Lee at 1043-1044. The Court stated that nothing in the record
before them indicated the regulatory scheme of the residency restrictions of the
Community Notification Act was anything other than reasonable in light of the
non-punitive objective of keeping children safe from convicted sex offenders.
Lee at 1044.
The Court affirmed the Trial Court’s denial of the motion to dismiss holding
the defendant failed to show by the clearest proof the effects of the residency
restrictions of the Community Notification Act negate the legislature’s intention to
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protect the public, in particular children, from convicted sex offenders. Lee at
1044.
The Alabama Court of Criminal Appeals relied on the United States
Supreme Court Case of Smith v. Doe, 538 U.S. 84 (2003) which upheld the
constitutionality of the Alaska Sex Offender Registration Act. The Court of
Criminal Appeals, however, noted the significant differences between Alabama’s
Community Notification Act and Alaska’s. Lee at 1041.
The United States Supreme Court case of Smith v. Doe challenged
Alaska’s Sex Offender Registration Act. Smith v. Doe, 538 U.S. 84 (2003). The
sex offenders filed a §1983 action challenging the constitutionality of Alaska’s
Sex Offender Registration Act. Smith v. Doe, at 84. The sex offenders alleged
the act violated the Ex Post Facto Clause.
Both parties moved for summary judgment. The United States District
Court for the District of Alaska ruled in favor of the State. The sex offenders
appealed. The Court of Appeals reversed and remanded the case. The Alaska
Supreme Court ruled the act was non-punitive and its retroactive application did
not violate the Ex Post Facto Clause. The United States Supreme Court
reversed and remanded the case. Smith at 84.
Under the Alaska registration statute, if the offender was convicted of one
non-aggravated sex crime, the offender was required to provide annual
verification for 15 years. If the sex offense was aggravated or the offender was
convicted of 2 or more offenses then the offender was required to register for life
and verify his registration information quarterly. Smith at 84. The Alaska statute
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required the Trial Court to inform the defendant of the Registration Act
requirements. Smith at 86.
The Alaska statute does not impose any disability or restraint. Smith at
86. Therefore, the Alaska statute does not resemble imprisonment. Smith at 86.
The record in Smith contained no evidence the act led to substantial occupational
or housing disadvantages for sex offenders that would not have otherwise
occurred. Smith at 86.
The Alaska sex offender residency updates were not required to be made
in person. Smith at 86-87. Alaska sex offenders were free to live and work with
no supervision or restrictions. Smith at 87.
The Smith v. Doe case of Alaska only addressed constitutionality of the
registration requirements. The Alaska convicted sex offender statue only
contains a registration requirement. Smith at 90. The Alaska statute does not
restrict residency. Smith at 90-91. This case did not address the living
restrictions which are at issue in Mr. Wallace’s case. Smith at 89.
The location of the act in the criminal code is relevant to determining
whether the statute is intended to be civil or punitive in nature. Smith at 94. In
Alabama, part of the sex offender laws are contained in the criminal code and
part are contained in Title 15.
The effects of the Alabama statutes, as currently enacted, closely
resemble colonial punishments. Historically offenders were required to stand in
public with signs detailing their offenses. Smith at 97. Some murderers were
branded with an “M” and a thief with a “T”. Smith at 98. The goal of such
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punishments was to make these offenders suffer permanent stigmas which in
effect cast the person out of the community. Smith at 98. The most serious
offenders were banished after which they could neither return to their original
community nor, because of their tarnished reputation, be admitted easily into a
new one. Smith at 98. Often times historically an offender was expelled from the
community. Smith at 98.
Contrary to Alabama’s statute, the Alaska’s statute did not make the
publicity and the resulting stigma an integral part of the regulatory scheme
objective. Smith at 99. The Alabama statute, however, does make the stigma
and banishment an integral part of the regulatory scheme by preventing the
defendant from living with his own family and listing the offender’s sex offense
conviction on the offender’s driver’s license. Alabama Code §§15-20-26(c)(4)
and 15-20-26.2(a).
Alabama allows unlimited access to registration information. Alabama
also brands a person by placing the sex offense conviction on the offenders’
drivers’ license. Alabama Code §15-20-26.2(a).
Alaska’s sex offender statute is drastically different from Alabama’s sex
offender statutes. Nearly every factor in Alaska’s statute the United States
Supreme Court used to illustrate its non-punitive nature is contrary to Alabama’s
statutes. Alabama’s statutes severely restrict residency and employment,
effectively banishing the indigent sex offender from the community. These
restrictions resemble traditional forms of punishment. Therefore, Alabama’s laws
effectuate a traditional form of punishment.
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The notification flyers amount to public shaming. Alabama’s community
notification and residency restrictions, contrary to Alaska’s statutes, place
affirmative disabilities and restraints on where a sex offender can live and work.
Under the Alaska statute, the offender can live and work anywhere. Alabama
statutes apply equally to all sex offenders regardless of risk or danger of
recidivism.
If the disability or restraint on freedom is minor and indirect, its effects are
unlikely to be punitive. Smith at 100. The Alaska Act imposed no physical
restraint. Smith at 100. The Alabama statute, however, does place a physical
restraint which is similar to being in the work release center by preventing the
defendant from living with his own mother. Alabama Code §15-20-26(c)(1-4).
The Alaska statute allowed the offenders to freely change jobs or
residencies. Smith at 100. The Alabama statute prevents an offender from
changing employment without first giving 7 days notice. The offender is further
precluded from all employment which involves children which may bring the
offender in contact with children. Alabama Code §15-20-26(a) and Alabama
Code §15-20-23.1.
An Alabama sex offender must give 30 days prior notice before changing
residency. Alabama Code §15-20-23. The record in the Smith case was void of
any evidence the Registration Act led to housing disadvantages for sex
offenders. Smith at 100. The United States Supreme Court in Smith rejected
arguments the Alaska Act was similar to probation or supervised release in terms
of restraint imposed because the Alaska statute allowed sex offenders to freely
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move where they wish and to live and work as other citizens with no supervision.
Smith at 100. The Alaska offender did not need permission from the sheriff
before they could change employment as required under the Alabama statute.
The Alabama
Now the Alaska Supreme Court has held Alaska’s Community Notification
Act violates the ex post facto, due process protection of their constitution and
therefore cannot apply to persons charged with sex offenses prior to the passage
of the Community Notification Act. Doe v. State, 189 P.3d 999 (Alaska, 2008)
Alaska held that the punitive effect of their CNA (abbreviated ASORNA)
outweighs the statutes’ non-punitive purpose of the protecting the public under
the seven factor ex post facto test. Alabama’s Notification act is far more severe
than the Alaska statute. Alabama’s Supreme Court, like Alaska, has never held
that Alabama’s Constitution offers less protection than United States
Constitution. Like Alaska, the strength of Alabama’s constitution must protect the
ex post facto rights of all Alabama citizens.
III.
The Alabama Sex Offender laws are excessive in relationship
to the legislative purpose.
With regard to the excessiveness of Alaska’s statute in relation to its
purpose, the Court reasoned that merely requiring registration and dissemination
of information to the public was not excessive. Smith 104-105. The Alabama
statute, on the other hand, goes beyond mere registration and notification. The
statue places great physical restraints and imposes the most serious sanction of
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precluding an offender from living with his family and gaining employment
retroactively. Alabama Code §15-20-26(c).
Application of the Alabama Registration Act differs from a civil remedy in 3
very important aspects
1.
The sanctions constitute a severe deprivation of the
offender’s liberty;
2.
The sanctions are imposed on everyone who has been
convicted of a sex offense; and
3.
The sanctions are imposed only on sex offenders. Smith at
112 (Justice Stevens dissenting but concurring in the
judgment).
In Smith, the Supreme Court distinguished between Alaska’s sex offender
registry and colonial punishments such as shaming, branding, and banishment.
The Court held the registry in Alaska merely involved dissemination of
information where as the colonial punishments either held the person up before
his fellow citizens for face to face shaming or expelled him from the community.
Smith, 538 U.S. at 98.
Banishment has always been a form or traditional punishment historically.
Colonial punishments were designed to make offenders suffer permanent
stigmas which in effect cast the person out of the community.
The residency restrictions of the Alabama law create a permanent stigma
as well as effectively cast the person out of the community. The Smith Court
also described as banishment situations in which individuals could neither return
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to their original community nor, reputation tarnished, be admitted easily into a
new one. Preventing offenders from making a home in many communities after
they have served their sentence substantially resembles banishment.
The Alabama residency restrictions also serve a traditional aim of
punishment, that being deterrence. One reason we put offenders in prison is to
reduce the likelihood of future crimes by depriving the offender of the opportunity
to commit the crime. This is precisely what Alabama’s Community Notification
and Residency Restrictions statutes are intended to do. Therefore, they
resembled the traditional aims of punishment.
The Alaska statute allows the sex offender to move or leave once notified
of a violation without being guilty of a crime. Smith, 538 U.S. at 100. The
Alabama statute limits the housing choices of all offenders, regardless of their
type of crime, type of victim, or risk of re-offending. Alabama Code §15-20-26.
This leaves offenders to live in a small area with no appropriate housing or jobs.
It also eliminates many employment opportunities. In this respect, the statute is
not narrowly tailored and its restrictions are excessive and unconstitutional.
When a defendant enters into a plea and is advised of his rights, he is
asked if he understands the possible punishment and the terms and conditions of
his plea. Alabama Rules of Criminal Procedure 14.4(a)(1)(i)-(viii); 14.4(2);
14.4(3); 14.4(b); 14.4(c); 14.4(d); and 14.4(e). The defendant cannot make a
knowing and intelligent plea of guilt because a convicted sex offender never
knows what the possible consequences of pleading guilty will be. Pursuant to
the current interpretation of the law, a defendant can never know with any
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certainty what the consequences of his plea will be because the legislature can
amend the law and impose restrictions which did not exist when the defendant
entered his plea.
This law is punitive because Alabama’s sex offender laws require
branding an offender by placing a defendant’s criminal conviction on the
convicted person’s driver’s license. Although driver’s license information is
otherwise a public record, the sex offense conviction advertised and revealed
every time a person is required to display his drivers’ license for whatever
reason.
IV.
Alabama’s Sex Offender laws unconstitutionally impinge upon
the right to travel and freely associate.
Under the current application of the Community Notification Act, a
Jefferson County resident convicted sex offender can barely live within the
county limits. Very few areas in the county qualify and meet the criteria of the
residency restriction of Alabama’s sex offender laws.
The convicted sex offender is essentially precluded from working in
Jefferson County. The defendant can barely live in Jefferson County under the
current status of the law.
Alabama Code §15-20-26(c)(4) residency restrictions preclude Mr.
Wallace from living with his mother. Due to Mr. Wallace’s mental deficiencies and
criminal record, he is unable to find employment. His mother, on a fixed income,
is forced to pay for 2 households. At the time Mr. Wallace entered into his pleas
to Rape 2, nothing restricted him from residing with his mother at her home which
is a direct violation of his Liberty Interest guaranteed by the 5th and 14th
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Amendment of the United States Constitution and the Alabama State
Constitution Article I, §6 (1901); and the right to Freely Assemble in violation of
United States Constitution Amendments 1 and 14.
The right to Travel protects a person’s right to enter and leave another
state, the right to be treated fairly when temporarily present in another state, and
the right to be treated the same as other citizens of that state when moving there
permanently. Moore at 1348.
A sex offender establishes a new residence when he is domiciled for 3 or
more consecutive days. Alabama Code §15-20-23(b)(1). Domiciled, however, is
not defined by Title 15. A sex offender creates a new residence if the offender
spends ten or more aggregate days in a calendar month at a location. Alabama
Code §15-20-23(b)(3). Therefore, an Alabama sex offender essentially is
precluded from spending 10 or more days on vacation without first complying
with all change of residence requirements, notices, community notification flyers,
etc. and arguably 3 days pursuant to Alabama Code §15-20-23-(b). The sex
offender cannot stay in a hotel if the hotel is within 2,000 feet of a school or
childcare facility. Alabama Code §15-20-26(a). The defendant must contact the
Sheriff to determine if he can spend a night in a hotel.
V.
The Alabama Sex Offender laws are unconstitutionally vague.
The Due Process Clause pursuant to United States Constitution
Amendments 5 and 14 and Alabama Constitution Article I, §6 (1901) has led to
the judicial doctrine of vagueness, which requires a criminal statute to define the
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criminal offense with sufficient definiteness to allow ordinary people to
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement. Doe v. Miller, 405 F.3d 700, 708 (8th
Cir. 2005).
A convicted sex offender has no way of knowing whether or not spending
the night in a hotel would violate the Alabama Sex Offender laws. Before a
defendant can spend a night in a hotel, he is required to contact the Sheriff’s
Department and be sure he or she is not violating the Community Notification
Act. Sellers v. State, 935 So.2d 1207 (Ala.Crim.App. 2005).
Under the current interpretation of the law, a defendant could not take a
vacation of more than 10 days without violating the Community Notification Act.
Sellers v. State, 935 So.2d 1207 (Ala.Crim.App. 2005). Pursuant to Alabama
Code §15-20-23(b) an adult sex offender establishes a new residence in any of
the following circumstances:
1.
Whenever adult criminal sex offender is domiciled for 3
consecutive days or more;
2.
Whenever the adult sex offender is domiciled following his or
her release regardless of whether that sex offender has
been domiciled at the same location prior to the time of
conviction; and
3.
Whenever an adult criminal sex offender spends 10 or more
aggregate days at a location during a calendar month.
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The statute is unconstitutionally vague. For example, under the current
status of the Community Notification Act, a person cannot be hospitalized in
Jefferson County for more than 3 or possibly 10 days without violating the
Community Notification Act. The Act contains no provision which allows for a
waiver of any violation. Therefore, if Mr. Wallace is hospitalized for 10 days or
more, because the hospital is too close to a day care facility, he is in violation of
the Community Notification Act. Alabama Code §15-20-23(b)(1).
If an offender spends 10 or more aggregate “days” in one place, the
offender establishes a new residence. The statute, however, fails to define the
term day. Is a day 24 hours, 12 hours, or 8 hours? Alabama Code §15-20-23(b).
Under the current law, every sex offender who is housed in the Jefferson
County jail for more than 10 days has committed another felony because they
are in violation of the Community Notification Act. The statute makes no
exceptions for being jailed or hospitalized. Under the most recent Alabama case,
being jailed or hospitalized is a living arrangement which is of no choice of the
defendant. Such living arrangement, however, directly violates Alabama Code
§15-20-23(b). Sellers v. State, 935 So.2d 1207 (Ala.Crim.App. 2005).
In Moore, a group of Florida sex offenders filed a class action challenging
the constitutionality of Florida’s sex offender registration/notification statute. Doe
v. Moore, 410 F.3d 1337 (11th Cir. 2005). The United States District Court for the
Southern District of Florida granted the State’s motion to dismiss. The plaintiffs
appealed. Id. at 1337.
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The Florida statute, however, differs in many respects from the current
Alabama statute. The following differences are most obvious:
1.
A Florida sex offender may be relieved of his or her
registration obligation if he or she is pardoned or petitions a
Court 20 years after being released from custody or
supervision and, among other things, the Court finds the sex
offender is not a potential threat to public safety. Moore at
1341;
2.
Other felons are also subject to registration, not just sex
offenders; and
3.
The Florida Statute did not apply retroactively; the statute
exempted sex offenders released from supervision before
enactment of the statute. Moore at 1348.
The plaintiffs claimed the acts:
1.
Violated Substantive Due Process by infringing their liberty
interest and good reputation, their Right to Travel, Privacy,
Employment, and Freedom of Religious Association;
2.
Were unconstitutional on Equal Protection grounds because
the law imposed post-release reporting burdens more
restrictive than other convicted felons;
3.
Violated the Separation of Powers Doctrine because the sex
offender laws nullified judicial sentencing; and
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4.
Were an unconstitutional impairment of contract because
they altered plea bargains made by sex offenders who were
sentenced prior to their enactment. Moore at 1341.
VI.
The Alabama Sex Offender laws violate the Equal Protection
Clause because the notification and residency restrictions apply to
sex offenders but not felons convicted of other crimes.
Equal Protection claims are reviewed under 1 of 3 levels of review. The
level of review depends on the parties involved and the right affected by the law.
State v. C.M., 746 So.2d 401, 414 (Ala.Crim.App. 1999).
If the law affects a fundamental right or a suspect class a reviewing court
applies the strict scrutiny standard of review. Under a strict scrutiny review, the
State must show a compelling state interest in enacting the law. C.M. at 414.
An intermediate level of review is applied if the law affects a protected
economic interest or liberty. If the intermediate level of review is used, the test is
whether the law is reasonably related to the stated objective. C.M. at 414.
If the law does not employ a classification based on a race, sex, national
origin, or legitimacy of birth and does not impinge upon a fundamental right, it is
subject to review under the rational-relationship analysis. If the rationalrelationship test is used, the law must be rationally related to the State’s
objective. C.M. at 414.
Interestingly, the stated policy for these statutes, among other things, is to
provide certain discretion to Judges in applying these requirements. Alabama
Code §15-20-20.1. The new amendments, however, have eliminated all
discretion. The legislative findings regarding the Community Notification Act are
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codified in Alabama Code §15-20-20.1. According to the legislative findings, law
enforcement agencies’ efforts to protect their communities, conduct
investigations, and quickly apprehend criminal sex offenders are impaired by the
lack of information about criminal sex offenders who live within their jurisdiction
and that the lack of information shared with the public may result in the failure of
the criminal justice system to identify, investigate, apprehend, and prosecute
criminal sex offenders. Alabama Code §15-20-20.1.
The above stated purpose applies to all crimes and all persons convicted
of crimes. These concerns are not unique to sex offenders.
No other convicted person is treated similarly to convicted sex offenders.
All other people convicted of crimes pay their debt to society and are eventually
released and allowed to live freely without further restrictions. If the legislative
findings justify the current treatment of convicted sex offenders, then the same
argument can be made for all people convicted of any crime.
In this way, the Alabama Sex Offender laws violate the Equal Protection
Clause of the United States Constitution Amendment 14 and Alabama State
Constitution Article I, §1 and §6 (1901) by treating similarly situated individuals
differently without justification.
VII.
The Alabama Sex Offender laws unconstitutionally restrict the
fundamental right to enjoy a family relationship.
When a State enacts legislation infringing fundamental rights, the Courts
will review the law under a strict scrutiny test and uphold it only when it is
narrowly tailored to serve a compelling State interest. Moore at 1343. The
United States Supreme Court has recognized fundamental rights include those
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guaranteed by the Bill of Rights as well as certain Privacy interest implicit in the
Due Process Clause and other Constitutional Rights. Moore at 1343. These
special liberty interests include the rights to marry, to have children, to direct the
education and upbringing of one’s children, to marital privacy, to contraception, to
bodily integrity, and to abortion. Moore at 1433.
To determine if a right is fundamental, the Court must determine whether
the right and liberty is weighed objectively, deeply rooted in this nation’s history
and tradition and implicit in the concept of ordered liberty such that neither liberty
nor justice would exist if they were sacrificed. Moore at 1343.
The family is the foundation upon which modern civilization is based. It is
not surprising therefore, that courts have zealously protected the integrity of the
family and the United States Supreme Court has repeatedly affirmed the
fundamental right of parents to make decisions concerning the care, custody,
and control of their children. See, e.g., Wisconsin v. Yoder, 406 U.S. 205, 232,
92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Parham v. J.R., 442 U.S. 584, 602, 99
S.Ct. 2493, 61 L.Ed.2d 101 (1979); Santosky v. Kramer, 455 U.S. 745, 753, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982); Michael H. v. Gerald D., 491 U.S. 110, 12324, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989).
The 14th Amendment provides that no State shall “deprive any person of
life, liberty, or property, without Due Process of law.” Courts have long
recognized that the Amendment’s Due Process Clause, like its 5th Amendment
counterpart, “guarantees more than Fair Process.” Washington v. Glucksberg,
531 U.S. 702, 719, 117 S.Ct. 2258 (1997). The Clause also includes a
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substantive component that “provides heightened protection against government
interference with certain fundamental rights and liberty
interests.” Id., at 720, 117 S.Ct. 2258; see also Reno v. Flores, 507 U.S. 292,
301-302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). Procedural Due Process
guarantees a State will not deprive a person of life, liberty, or property without
some form of notice and opportunity to be heard. Moore at 1342.
The Due Process Clause of the 5th and 14th Amendments of the United
States Constitution and Alabama Constitution Article I, §6 (1901) provides a
heightened protection against government interference with certain fundamental
rights and liberty interest such as child rearing decisions. Substantive Due
Process protects fundamental rights so implicit in the concept of ordered liberty
that neither liberty nor justice would exist if they were sacrificed. Moore at 13421343. Fundamental rights protected by Substantive Due Process are protected
from certain State actions regardless of the procedures the State uses. Moore at
1343.
The right to associate with family members was recognized by the United
States Supreme Court in Roberts v. United States Jaycees, 468 U.S. 609, 618
(1984), as a fundamental right that triggers the strict scrutiny analysis. Family
relationships, by their nature, involve deep attachments and commitments to the
necessarily few other individuals with whom one shares not only a special
community of thoughts, experiences, and beliefs but also distinctively personal
aspects of one’s life. State v. C.M., 746 So.2d 401, 415 (Ala.Crim.App.1999).
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In Miller, a group of Iowa convicted sex offenders brought a class action
challenging the constitutionality of Iowa’s statute that prohibited sex offenders
from residing within 2000 feet of a school or childcare facility. Doe v. Miller, 405
F.3d 700 (8th Cir. 2005). The United States District Court for the Southern
District of Iowa ruled in favor of the sex offenders. The State appealed. Miller at
700. The United States 8th Circuit Court of Appeals reversed and remanded.
Miller at 700.
The Iowa statute, contrary to Alabama’s sex offender laws, did not
apply retroactively to persons who established residency before July 1, 2002 or
to schools or childcare facilities located after July 1, 2002. Miller at 705.
Furthermore, the statute only restricted living within 2000 feet of a school or
daycare. The statute did not limit who could live in the home with the convicted
sex offender. Miller at 705. The Iowa statute did not prohibit sex offenders from
accessing areas near schools or childcare facilities for employment, it only
restricted residency. Miller at 719. As cited in the Doe v. Miller case, certain
intimate human relationships must be secure against undue intrusion by the
State because of the roll of such relationship in safeguarding the individual
freedom that is central to our constitutional scheme. Miller at 709-710.
In Moore v. City of East Cleveland, 461 U.S. 494 (1977), a zoning
ordinance was unconstitutional because it defined a family in such a way as to
prohibit a grandmother and her 2 grandsons from living together in an area
designated for single family dwellings. The United States Supreme Court held
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that freedom of personal choice in matters of marriage and family life is one of
the liberties protected by the Due Process Clause of the 14th Amendment.
The Iowa statute did not restrict who may live with a sex offender in their
residence. Moore at 710. The Supreme Court’s decision in Griswold and Moore
recognized constitutional rights relating to personal choice in matters of marriage
and family life and recognized these rights in terms of the intimate relation of
husband and wife. Griswold 381 U.S. 479, 482 (1965), or intrusive regulation of
family living arrangements. Moore 431 U.S. at 499 (1977).
The Miller Court specifically held that because the statute did not restrict
who could live in the home with the sex offender, it did not infringe upon a
Constitutional Liberty Interest relating to matters of marriage and family in a way
that required heightened scrutiny. Miller at 711.
In C.M., a juvenile was adjudicated delinquent for sex offenses. The
juvenile filed a writ of mandamus challenging the constitutionality of the
Community Notification Act. State v. C.M., 746 So.2d 401 (Ala.Crim.App. 1999).
The Court of Criminal Appeals directed the Trial Court to rule on the
constitutionality of the act. The Circuit Court ruled the act violated the Ex Post
Facto Clause but did not violate the Equal Protection Clause. The State
appealed. The Court of Criminal Appeals held:
1.
Retroactive application of the Community Notification Act
provisions prohibiting juveniles from returning to their home
in which another minor lived violated the juvenile’s right to
Equal Protection, and violated the Ex Post Facto Clause;
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2.
Retroactive application of the Community Notification Act
provision requiring community notification violated the Ex
Post Facto Clause; but
3.
Retroactive application of provisions requiring juvenile sex
offenders to register with law enforcement did not violate the
Ex Post Facto Clause. C.M. at 410.
Several other State sex offender statutes have been found
unconstitutional. These cases are recited in State v. Meyers, 923 P.2d 1024,
1037-1038 (1996).
For example, the California Supreme Court found its registration statute to
be a form of punishment. The California Supreme Court then found the
registration requirement to be cruel and unusual punishment. In re Reed 663
P.2d 216 (1983) cited in Meyers at 1038-1039.
Alaska’s sex offender laws violated the prohibition against Ex Post Facto
legislation because the law included a provision providing for public
dissemination of information concerning sex offenders whose convictions
predated the registration act. Rowe v. Burton, 884 F.Supp. 1372 (D.Alaska
1994). Rowe at 1380 cited in Meyers at 1039. The Court reasoned as follows:
1.
Public dissemination provisions, which would subject the
registrants to public stigma and ostracism affecting both their
personal and professional lives, imposed an affirmative
disability or restraint causing a punitive affect;
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2.
Registration was not a concept which the Court perceived to
be imbued by history with a punitive connotation;
3.
The act was premised on knowingly wrongful conduct of the
registrant and therefore the scienter factor was present,
indicating punitive effect although that factor was to be given
only light weight;
4.
While the registration requirement by itself may have
imposed only a minimum burden, the public disclosure
mechanism could have both a deterrent and retributive
effect;
5.
Little weight is given to the factor of whether the behavior to
which the sanction applied was already a crime; and
6.
The law had an alternative non-punitive purpose but the
public dissemination feature of the law left open the
possibility that the sanction may be excessive in relation to
its legitimate non-punitive affect. Meyers at 1039; citing
Rowe at 1378-1379.
In Doe v. Pataki, 919 F. Supp. 691 (S.D.N.Y. 1996), the Federal District
Court granted an injunction against retroactive application of the notification
provisions of New York’s Megan’s Law. In determining that the public notification
provisions were punitive, the Court relied upon the Mendoza-Martinez factors
finding that the public notification provisions:
1.
Have traditionally been viewed as punitive;
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2.
Serve a traditional punishment goal deterrence;
3.
Impose an affirmative disability or restraint;
4.
Are triggered by behavior that is already a crime; and
5.
Have already led to excessively harsh results. Pataki at
700-701 cited in Meyers at 1040.
The Kansas registration statute addressed in Meyers did not restrict the
offender’s movements within the community. The act only required registration.
Meyers at 1041.
The Kansas disclosure provisions, however, made more burdensome the
punishment for a crime after its commission, thus the disclosure provisions
violated the constitutional prohibition against Ex Post Facto laws. Meyers at
1043. The Court upheld the registration requirements but held the disclosure of
the registration information violated the Ex Post Facto Clause. Meyers at 1044.
Kansas v. Hendrix, 521 U.S. 346 (1997), is distinguishable because the
simple fact of a conviction was not sufficient to authorize civil commitment under
the Kansas law. The Kansas law permitted civil commitment of persons who had
committed or had been charged with a sexually violent offense only after a
hearing showing the mental abnormality or personality disorder which made the
person more likely to engage in predatory acts of sexual violence. Smith v. Doe
at 113 Justice Stevens dissenting. Furthermore, a conviction was not a predicate
for a civil commitment. Therefore, using Kansas v. Hendrix to support an
argument that the Alabama statutes do not violate the Ex Post Facto law is
misplaced. A sanction that:
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1.
Is imposed on everyone who commits a criminal offense;
2.
Is not imposed on anyone else; and
3.
Severely impairs a person’s liberty is punishment. Smith at
113 (Justice Stevens dissenting).
Thus the Alabama Sex Offender Statutes violate Double Jeopardy and
rise to the level of cruel and unusual punishment prohibited by the 5th and 8th
Amendment of the United States Constitution and Alabama Constitution Article I,
§9 (1901) and §15 (1901).
IX.
Conclusion
Alabama has the most restrictive, restraining, invasive sex offender
residency restrictions in the United States. The Alabama Sex Offender laws as
amended in 2005 go beyond civil regulation and rise to the level of punishment
and liberty restraint which, when applied retroactively, violate the Ex Post Facto
Clause and Due Process Clause of the United States and Alabama State
Constitution.
Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23 et seq.;
and 15-20-26 et seq. violate the Due Process Clause of the 5th and 14th
Amendments of the United States Constitution and Alabama State Constitution
Article I, §6 (1901).
Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23 et seq.;
and 15-20-26 et seq. violate and unconstitutionally impinge upon the
fundamental right and liberty of parents to live with and develop and maintain a
relationship with their children.
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Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23 et seq.;
and 15-20-26 et seq. violate the Due Process Rights as guaranteed by the
United States Constitution Amendments 5 and 14, Alabama State Constitution
Article I, §6 (1901).
Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23 et seq.;
and 15-20-26 et seq. are unconstitutionally vague.
Application of Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 1520-23 et seq.; and 15-20-26 et seq. violate the Separation of Powers Clause of
the Alabama Constitution Article III, §42; Alabama Constitution Article III, §43,
United States Constitution Article I, and United States Constitution Article III.
Application of Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 1520-23 et seq.; and 15-20-26 et seq. violate the Inalienable Rights of Life, Liberty,
and the Pursuit of Happiness in violation of Alabama Constitution Article I, §1
(1901).
Alabama State Statute §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23
et seq.; and 15-20-26 et seq. violate the Equal Protection Clause pursuant to the
United States Constitution Amendment 14 and the Alabama Constitution Article I,
§1 (1901) and §6 (1901); Due Process Clause pursuant to the United States
Constitution Amendments 5 and 14 and Alabama Constitution Article I, §6
(1901); the Substantive Due Process Clause, the Procedural Due Process
Clause, Fundamental Liberty Interest pursuant to the United States Constitution
Amendments 5 and 14 and Alabama Constitution Article I, §6 (1901); Cruel and
Unusual Punishment pursuant to the United States Constitution Amendment 8
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and Alabama Constitution Article I, §15 (1901); Ex Post Facto pursuant to the
United States Constitution Article I, §9(3) and §10(1) and Alabama Constitution
Article I, §7 and §22 (1901), Alabama Rules of Criminal Procedure 14.4(a)(1)(i)(viii); 14.4(2); 14.4(3); 14.4(b); 14.4(c); 14.4(d); and 14.4(e); Double Jeopardy
pursuant to the United States Constitution Amendments 5 and14 and the
Alabama Constitution Article I, §6 (1901); Defendant’s Right to Privacy Implicit in
the Due Process Clause and other Constitutional Rights.
Wherefore, the defendant moves to declare Alabama Code §§ 15-20-20.1
et seq.; 15-20-21 et seq.; 15-20-22 et seq.: 15-20-23 et seq.; and 15-20-26 et
seq. unconstitutional and to dismiss the charge against Mr. Wallace. The
defendant requests such other further and different relief to which he may be
entitled.
___________________________
Kathryn L. Lippert, (LIP 006)
Attorney for the Defendant
1820 3rd Ave N. Ste. 102
Bessemer, AL. 35020
(205) 426-3705
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CERTIFICATE OF SERVICE
I hereby certify on this ____ day of November, 2008 I have served a copy
of the foregoing by hand delivering a copy of same to the District Attorney of
Jefferson County, Bessemer Division the Jefferson County Courthouse.
CERTIFICATE OF SERVICE
I hereby certify on this _____ day of November, 2008 that I have served a
copy of the foregoing upon the following via U.S. Mail, postage prepaid:
Mr. Troy King
Attorney General’s Office
11 South Union Street
Montgomery, AL 36130
__________________________
___
Kathryn L. Lippert
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