Additional Liberty Restrictions violate the Constitution
Jeffery S. Nichols v. William Lee, et al
Mr. Nichols is challenging that Tennessee's Public Sex Offender Registry, their secretly imposed sentence of Community Supervision for Life ("CSL"), and method of GPS Monitoring for Life, as applied, violates his constitutional rights.
In sum, Mr. Nichols claims are:
1. The current Sex Offenders Registry that was enacted in 2004 and its ever-increasing plethora of liberty restrictions that are being applied to him, even though the time of his crimes are 2002, violates his constitutional protection against the ex post facto application of laws. In sum,
Claims A & B
Facts: Mr. Nichols' sex offenses were in 2002. Then in 2004, the General Assembly repealed SOMA - the prior Sex Offender Registry Act - and replaced it with a new Act, which continues in amended form today.
Argument: In a similar, controlling, case the federal court of appeals 6th Circuit has ruled that Sex Offender Registry restrictions added after the time of the defendant's offenses could not be applied retroactively.
Claims C - E
Argument: Mr. Nichols was not told by the court of the additional sentence of Community Supervision for Life prior to entering his plea, and by the time he found out the state had amended his judgments adding said sentence, without his knowledge or consent, he had no adequate avenue to challenge such as unconstitutional. To clarify, Mr. Nichols is not challenging the legality of the sentence itself. Instead, he is challenging the state's deviant manner in which they applied it. The state knowing applied this sentence in a manner to subvert Mr. Nichols' constitution rights and bar him from access to the court to challenge such.
Claim F & G
Argument: Mr. Nichols argues that by adding the sentence of CSL and its ever-increasing liberty restrictions, and GPS ankle monitoring for life to his custodial prison sentence, without his consent, violates his constitutional rights in that it increases his sentence after the entry thereof and it changes the conditions of his plea.
Currently, Mr. Nichols' Motion for Preliminary Injunction is pending. This is where Plaintiff Nichols is requesting that the court grant him relief from all the Registry, CSL and GPS Monitoring restrictions that are unnecessary, detrimental, unconstitutional, and have created an inhumane hardship on him until a final decision is made by the court in this case.
Further, the Defendants, Governor Lee and others, have filed a Motion to Dismiss part of claims brought by Plaintiff Nichols is also pending. In sum, the Defendants argue that there are federal procedures that bar this court, or any court, from ruing on the constitutionality of these claims.
For more information go to the footnotes at the bottom of this page and click on "Lawsuit" to see an explanation of, and download, the actual official court pleadings in this case, Jeffery S. Nichols v. William Lee, et al, in the U.S. Middle District Court of Tennessee.
In a similar Tennessee case, the Court ruled favorably:
“Tennessee officials continue to flout the Constitution’s guarantees", Judge Trauger wrote in her ruling. "The Federal District Courts of this state have repeatedly concluded that the same analysis applies"…"to Tennessee’s own (Sex Offender Registry), [which has] very similar scheme and polices. Tennessee officials have continued to impose the state’s repeatedly held to be unlawful policy on others, similarly situated individuals” despite rulings," she said.
Governments are prohibited from giving more punishment for a crime that was committed previously under the Ex Post facto of the U.S. Constitution clause, according to The Associated Press.
A judge must decide that the law being implemented retroactively is penal to find a clause violation.
Judge Trauger said the violation doesn’t depend on the plaintiff’s hardship, but rather the punitive nature of the law.
Trauger also cited a prior ruling where another federal judge in the same District ruled that two men should be removed from the sex offender registry. The judge determined enforcing laws created after the committed crimes were unconstitutional.
Myth vs Fact
Myth - Most sexual assaults are committed by strangers.
Fact - Most sexual assaults are committed by someone known to the victim or the victim's family, regardless of whether the victim is a child or an adult.
The Public registry doesn't reduce sex crimes
The Public Sex Offender Registry is ineffective at reducing new sex crimes.
The Public Sex Offender Registry is ineffective at reducing new sex crimes.
The Public Sex Offender Registry is ineffective at reducing new sex crimes.
Modern scientific studies and fact-based evidence has shown that the Tennessee Sex Offender Registry's is based on uncorroborated myths. Its extensive burdens are excessive in relation to the laws purported public safety goals. There are two salient points to consider: l) research refutes the State's assumption about recidivism rates that supposedly justify the extreme burdens; and (2) the Registry is not a good tool to protect the public, it has created an increased unconstitutional punishment, and changes the conditions of guilty pleas.
In recent Sixth Circuit case the Appellate Court stated that they had "significant doubt on Sex Offender recidivism being "frightening and high." They based their statement on an empirical study that found sex offenders are less likely to recidivate than other sorts of criminals. (See 1, source at end of article)
A 2019 Bureau of Justice Report, on recidivism rate of prisoners released in 30 states in 2005 that were rearrested within 9-years following their release, shows that those with rape charges recidivism rate of committing another sexual offense at , and the recidivism for those with other sexual charges of committing a new sex crime at . (See 2)
The Tennessee's own TBI study showed that Sex Offenders success rate upon release from prison is twice that of those with other offenses. (See 3)
Further, the Registry is not based on the dynamics, and fact-based evidence, of new sexual assaults. For instance, in general, 90% of all sexual assaults are committed by a first-time offender, a person the victim knew, in the privacy of a residence.
Hence, many of the Registry's burdens, like the Residence, Employment and Financial Burdens do not reduce the risk of new sexual assaults. These burdens actually create anxiety from the fear of homelessness and unemployment that could increase the risk of recidivism.
While other countries and state have found the Registry to be unconstitutional, Tennessee's legislation continues fight to keep the Registry and its numerous burdens, to show that they are tough on crime, with no concern for the constitution they are violating, the increased recidivism it's causing, and the misuse of resources that could be used to really reduce new sex crimes.
Canada's Supreme Court, the country that most closely resembles that of the United States, ruled on October 30,2022, that the mandatory sex offender registry is unconstitutional. Mandatory listing on Canada's sex offender registry is, for some offenders, an unjustified infringement on their liberty that is not rationally connected to the goal of preventing sexual crimes.
A number of state supreme courts have applied the intent-effect test and concluded that their Registries constitute punishment, and their retroactive application violates the Ex Post Facto Clause. See 4, states)
The State of Tennessee has organized their arguments against challenges that the state's Registry is unconstitutional with uncorroborated generalities, which worked in the past. But in recent years, some Courts have taken a stand to protect the constitution, by enforcing the rights it supposed to protect.
Specifically, Tennessee's federal courts have enforced the findings of the Sixth Circuit Court of Appeals in both the 2006 and 2011 cases (See 5) that found Michigan's Registry constituted punishment, because Michigan's SORA mirrors that of Tennessee's.
Thus, it's clear the Registry and its extensive burdens are excessive in relation to the laws purported public safety goals, unconstitutional, and inhumane. Just consider this, the United States is the only country in the world with a public Sex Offender Registry, which clearly demonstrates that all other countries realize the inhumanity and ineffectiveness of such.
Article Sources / Reports & Publications
The Public Sex Offender Registry is ineffective at reducing new sex crimes.
The Public Sex Offender Registry is ineffective at reducing new sex crimes.
The Public Sex Offender Registry is ineffective at reducing new sex crimes - Sources:
1.
Citing Lawrence A. Greenfield, Recidivism of Sex Offenders Released from Prison in 1994 (2003).
2.
Bureau of Justice Statistics, Recidivism of State Prisoners released in 2005 data collection, 2005-2014.
3.
Tennessee's Attorney Memos, June 2, 2008, page 1 & 2.
4.
Some examples are: State v Williams. 952 NE2d 1108, 1112-14 (Ohio, 2011); Wallace v State. 905 NE2d 371,384 (Ind. 2009); Doe v State. 111 A3d 1077,1100-1102 (NH, 2015); In re Taylor. 343 P3d 867, 869 (Cal, 2015); Commonwealth v Baker. 295 SW3d 431,447 (Ky, 2009); State v Pollard, 908 NE2d 1145, 1147-1148 (Ind. 2009); Starkey v Oklahoma Dept of Corr, 305 P3d 1004, 1029-1030 (OH. 2013); Commonwealth v Muniz, 164 A3d 1189, 1213 (Pa. 2017), cert den Pennsylvania v Muniz, 138 S.Ct 925 (2018); Doe v Dep't of Public Safety & Corr. Servs. 62 A3d 123,124,143 (Md. 2013); State v Letalien, 985 A3d 4, 26 (Me. 2019); Doe v State, 189 P3d 999, 1017 (Alaska, 2008). See also State v Peterson-Beard, 377 3d 1127, 1145-49 (Kan. 2016) (Johnson" J., dissenting); Riley v. NJ State Parole Bd., 32 A3d l90, 244 (NJ Super Ct App Div, 2011) (holding that the affirmative disabilities and restrains imposed by New Jersey's sex offender monitoring act were sufficient, by themselves, to hold that their retroactive application violated the Ex Post Facto Clause, with other factors providing additional support); Commonwealth v Cory, 911 NE2d 187,197 (Mass. 2009); State v Strickland, 2009-Ohio-5242, No 2008-L-034, 2009 WL 3255305, at 9 (Oct. 9, 2009) (holding that Ohio's sex offender classification system is "clearly punitive in nature")
5.
In Smith, 538 US at 92,94,96-97,99, 104-105, as the Sixth Circuit did in Does 1-5 v Snyder, 834 F3d at 706, and as the United States Solicitor General did RECEIVED by MSC 2/8/2019 11:39:01 AM 7 when it filed its amicus in Does I, WL 2929534 at 11 n 2. Examining the effects in the aggregate, the registry's 2006 and 2011 amendments constitute punishment.
Reports & Publications:
2015 - "Frightening and High": The Supreme Court's Crucial Mistake about Sex crime Statistics
2017 - Claims of "frightening and high" recidivism rates, endorsed by the Supreme Court, have no basis in fact in
2017 - When Junk Science about Sex Offenders infect the Supreme Court
2016 - Bad Data: How government agencies distort statistics on sex-crime recidivism
2016 - Collateral Consequences and Effectiveness of Sex Offender Registration and Notification: Law Enforcement Perspectives
2016 - Sexual Offenses against Children: Sentencing Principles and Trends in Eight Jurisdictions
2014 - A Comparison of the Predictive Properties of 9 Sex Offender Risk Assessment Instruments
2014 - Can a Sex Offenders ever be seen as an Ex-Offender? Exploring the barriers facing released sex offenders attempting to successfully rehabilitate into the community
Click here to see these reports at CURE-SORT: