IN THE CIRCUIT COURT OF LAUDERDALE COUNTY, ALABAMA
STATE OF ALABAMA
PLAINTIFF
V.
CASE NO. CC
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.; 15-20-21 et
seq.; 15-20-23 et seq.; and 15-20-26 et seq. unconstitutional on the following grounds:
1.
On December 12, 1989,
s, the defendant pled
guilty to sex abuse in the 1st degree. On December 12, 1989, the Court
adjudged the defendant guilty of said offense. On January 26, 1989, the Court
sentenced the defendant to serve 6 months. On January 8, 1990, the Probation
and Parole Officer filed a delinquency charge against Mr. Defendant because
he failed to report to the Probation Officer as directed. On April 5, 2001, the
Court discharged the defendant from probation.
2.
On or about January 22, 2008 the Lauderdale County Sheriff’s
Department arrested the defendant. The State of Alabama charged the defendant with
establishing a prohibited residence and failing to register.
3.
The March 2008 Lauderdale County Grand Jury indicted the defendant
and charged him with violating Alabama Code §15-20-23 (failing to register within 30
days) and Alabama Code §15-20-26 (establishing a residence where a minor resides).
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4.
The defendant must now maintain 2 households. The defendant has been
ostracized from the community. The defendant is unable to direct the upbringing of his
child. The defendant is not allowed to live with his own biological son. The defendant
has been forced to live with relatives.
Memorandum of Law in Support of Motion to Declare Alabama Code §1520-20.1 et seqq. Unconstitutional
I.
History of Alabama Code §15-20-20.1 et seq.
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:
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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); §15-20-24(d); §15-2025.1(d); §15-20-25.2(d); §15-20-25.3(g); §15-20-26(h); §15-20-26.1(g);
§15-20-26.2(a); and §15-20-23.1.
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 §15-20-23(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 §15-2023(b)(2) and §15-20-21(10).
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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 §15-20-23(b)(3).
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 §15-20-26(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
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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 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;
5.
Whether the behavior to which it applies was already criminal;
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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 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.
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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 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).
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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 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
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§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 nonaggravated 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 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.
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Smith at 90-91. This case did not address the living restrictions which are at issue in Mr.
Defendant’ 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.
By requiring the defendant to live separate and apart from his family, the
Alabama Sex offender laws are akin to placing the defendant in prison or work release.
Placing the defendant in work release prevents the defendant from living with his family.
The Alabama statutes effectively place the defendant in confinement and its effect,
whether intended or not, is punitive and restrains liberty.
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 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
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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.
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 biological child. 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
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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 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.
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 precluding an offender from living with his own
biological child retroactively. Alabama Code §15-20-26(c).
If the act prohibits an offender from living with his biological family, when the
alleged victim is not his own children, the act should not have retroactive application. If
this consequence is a valid and appropriate restriction, it should not be applied
retroactively.
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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 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.
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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 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
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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 Lauderdale
County resident convicted sex offender can barely live within the city limits of Florence.
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 Lauderdale
County. The defendant can barely live in Lauderdale County under the current status of
the law.
Alabama Code §15-20-26(c)(4) residency restrictions preclude Mr. Defendant
from living with his own biological child because Mr. Defendant’ alleged victim was
under the age of 12. Mr. Defendant cannot afford to pay for 2 households. At the time
Mr. Defendant entered into the marriage relationship and had a child, he could legally
live with his child and assumed he would only be required to pay for 1 household.
Retroactive application of this law requires Mr. Defendant to financially support 2
households and live separately and apart from his biological child which is a direct
violation of his Liberty Interest guaranteed by the 5th and 14th 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
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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 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.
Furthermore, even if the sex offender complies with all of the notification and
notice requirements of the Code, the sex offender cannot stay in the same hotel room with
his child if he is categorized as Mr. Defendant.
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 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).
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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.
The statute is unconstitutionally vague. For example, under the current status of
the Community Notification Act, a person cannot be hospitalized in Lauderdale 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. Defendant 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).
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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 Lauderdale
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.
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
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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
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.
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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 rational-relationship 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 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
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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 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.,
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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, 123-24, 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 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 1342-1343. Fundamental rights protected by
Substantive Due Process are protected from certain State actions regardless of the
procedures the State uses. Moore at 1343.
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In Moore, the Court held that no fundamental rights protected by the United
States Constitution had been affected by the Sex Offender Act, therefore, a rational basis
test applied to the substantive Due Process and Equal Protection claims. Moore at 13411342. A statue is considered constitutional under the rational basis test when there is any
reasonably conceivable set of facts that could provide a rational basis for it. Moore at
1346.
The Liberty Interest at issue in this case, the interest of parents in the care,
custody, and control of their children, is perhaps the oldest of the fundamental liberty
interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262
U.S. 390, 399, 401 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the United States Supreme Court
held that the “liberty” protected by the Due Process Clause includes the right of parents
to “establish a home and bring up children” and “to control the education of their own.”
Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 69
L.Ed. 1070 (1925), the United States Supreme Court again held that the “liberty of
parents and guardians” includes the right “to direct the upbringing and education of
children under their control.” The United States Supreme Court explained in Pierce that
the child is not the mere creature of the State; those who nurture him and direct his
destiny have the right, coupled with the high duty, to recognize and prepare him for
additional obligations.” Id., at 535, 45 S.Ct. 571.
The United States Supreme Court returned to the subject in Prince v.
Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944), and again confirmed a
constitutional dimension to the right of parents to direct the upbringing of their children.
“It is cardinal with us that the custody, care and nurture of the child reside first in the
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parents, whose primary function and freedom include preparation for obligations the
State can neither supply nor hinder.” Id., at 166, 64 S.Ct. 438.
In subsequent cases, the United States Supreme Court recognized the fundamental
right of parents to make decisions concerning the care, custody, and control of their
children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972) (“It is plain that the interest of a parent in the companionship, care, custody, and
management of his or her children comes to this Court with a momentum
for respect lacking when appeal is made to liberties which derive merely form shifting
economic arrangements’” (citation omitted); Wisconsin v. Yoder, 406 U.S. 205, 232, 92
S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization
reflect a strong tradition of parental concern for the nurture and upbringing of their
children and is now established beyond debate as an enduring American tradition”);
Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have
recognized on numerous occasions that the relationship between parent and child is
constitutionally protected.”); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61
L.Ed.2d 101 (1979) (“Our jurisprudence historically has reflected Western civilization
concepts of the family as a unit with broad parental authority over minor children, our
cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753,
102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing the fundamental liberty interest of
natural parents in the care, custody, and management of their child”); Glucksberg, supra,
at 720, 117 S.Ct. 2258 (“In a long line of cases, the United States Supreme Court has held
that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’
specially protected by the Due Process Clause includes the right… to direct the education
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and upbringing of one’s children” (citing Meyer and Pierce). In light of this extensive
precedent, the Court should apply a strict scrutiny analysis because the Due Process
Clause of the 14th Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children.
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).
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
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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 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
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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;
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.
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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;
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
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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;
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
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Kansas v. Hendrix to support an argument that the Alabama statutes do not violate the Ex
Post Facto law is misplaced. A sanction that:
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).
The defendant was not required to move because he violated any residency
restrictions other than living with his biological child. This is precisely the liberty
interest addressed in Griswold and City of East Cleveland which found such housing
restrictions to be unconstitutional. The defendant is precluded from not only living with
his biological child but also from enjoying a marital relationship. His wife is denied the
same Constitutional Rights.
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.
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Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23 et seq.; and 1520-26 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 1520-26 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.
Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23 et seq.; and 1520-26 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 1520-26 et seq. are unconstitutionally vague.
Alabama Code §§15-20-20.1 et seq.; 15-20-21 et seq.; 15-20-23; and 15-20-26
unconstitutionally interfere with the parent’s liberty interest in family privacy in violation
of the Due Process Clause to the United States Constitution Amendments 5 and 14 and
Alabama Constitution Article I, §6 (1901) and the right to freely assemble in violation of
the 1st and 14th Amendments of the United States Constitution.
Application of 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 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.; 15-20-23 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).
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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 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.; 15-20-23 et seq.; and 15-20-26 et seq. unconstitutional and to
dismiss all charges. The defendant requests such other further and different relief to
which he may be entitled.
___________________________
Jeffrey B. Austin, Esq. (AUS 013)
Attorney for the Defendant
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MITCHELL, WINBORN, AUSTIN,
& MILES
102 South Court Street, Suite 600
Florence, AL 35630
(256) 764-0582
CERTIFICATE OF SERVICE
I hereby certify on this ____ day of June 2008 I have served a copy of the
foregoing upon the following by hand delivering a copy of same to the Lauderdale
County Courthouse:
Chris Connolly
District Attorney
200 South Court Street
Florence, AL 35630
CERTIFICATE OF SERVICE
I hereby certify on this _____ day of June 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
_____________________________
Jeffrey B. Austin, Esq.
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