Sex Offender 2003 Landmark 6-3 Decision Smith Vs Doe Is It Ripe For Challenge

 By Seeking Justice, alas

Looking at the Smith decision, there's still three on the court that dissented against the framework of Sex Offender Registration Act in it's construction agreeing of it's penal nature. Ginsburg in dissent as follows: "Satisfied that the Act is ambiguous in intent and punitive in effect, I would hold its retroactive application incompatible with the Ex Post Facto Clause, and would therefore affirm the judgment of the Court of Appeals".
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, and Thomas, JJ., joined. Thomas, J., filed a concurring opinion. Souter, J., filed an opinion concurring in the judgment. Stevens, J., filed a dissenting opinion. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined.



The newly appointed Justice Gorsuch, who is a Defense Attorney, may bring the court to a balance to overturn the key punishment components of the Sex Offender registration;

Is it time and ripe to challenge the landmark decision that paved the way to the ever increasing license to abate the constitution freedoms of those subject to Sex Offender Registration. Could Justice Thomas be persuaded to side with the challenge agreeing that this legislation is punitive after his dissent noted in UNITED STATES v. KEBODEAUX , decided 2013


THOMAS, J., dissenting in Kebodeaux Cite as: 570 U. S. ____ (2013)

Stating "Finally, the Court asserts that the Wetterling Act is reasonable because it “took state interests into account by, for the most part, requiring released federal offenders to register in accordance with state law,” and its requirements are “reasonably narrow and precise.” Ante, at 10. But the degree to which the Wetterling Act or SORNA accommodates State interests and intrudes on the lives of individuals subject to registration is irrelevant because the Supremacy Clause makes federal law supreme.  See Art. VI, cl. 2.  “As long as it is acting within the powers granted it under the Constitution, Congress may impose its will on the States.” Gregory v. Ashcroft, 501 U. S. 452460 (1991). The fact that the Wetterling Act and SORNA may be “narrow” and “[take] state interests into account,” ante, at 10, is “not a matter of constitutional necessity, but an act of legislative grace.” Comstock, 560 U. S., at 178 (THOMAS, J., dissenting).  These factors have no place in deciding whether a law “Execut[es]” an enumerated power.

Continuing he adds; "The Court not only ignores the limitations on Congress’ power set forth in the Constitution, but it also ignores the limits that it marked just three years ago in Comstock. In that case, this Court held that Congress has power under the Necessary and Proper Clause to enact 18 U. S. C. §4248, which authorizes the Federal Government to civilly commit “sexually dangerous persons” beyond the date it lawfully could hold them on a charge or conviction for a federal crime. Comstock, 560 U. S., at 142.  The Court rebuffed the assertion that it was conferring a general police power on Congress by asserting that §4248 was “limited to individuals already ‘in the custody of the’ Federal Government.” Id., at 148. The Solicitor General even conceded at oral argument that “the Federal Government would not have . . . the power to commit a person who . . . has been released from prison and whose period of supervised release is also completed” because “at that point the State police power over a person has been fully reestablished.” Tr. of Oral Arg. in United States v. Comstock O. T. 2009, No. 08–1224, p. 9.  The Court and the Government today abandon even that meager restriction, which itself lies far beyond the constitutional limits.  Kebodeaux was no longer in federal custody when Congress enacted SORNA, yet the Court disregards the fact that, even under Comstock, release from prison and supervised release terminates any hold the Federal Government might otherwise have and “fully reestablishe[d]” the State’s police power over that individual.- Concluded-

Smith vs Doe action was brought under 42 U.S. C. §1983, seeking to declare the Act void as to them under, inter alia, the Ex Post Facto Clause, U.S. Const., Art. I, §10, cl. 1. The District Court granted petitioners summary judgment. The Ninth Circuit disagreed in relevant part, holding that, because its effects were punitive, the Act violates the Ex Post Facto Clause.

Us Supreme Court Held: Because the Alaska Sex Offender Registration Act is nonpunitive, its retroactive application does not violate the Ex Post Facto Clause. Pp. 4—18.

    (a) The determinative question is whether the legislature meant to establish “civil proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361. If the intention was to impose punishment, that ends the inquiry.

If, however, the intention was to enact a regulatory scheme that is civil and non- punitive, the Court must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State’s intention to deem it civil. E.g., ibid. Because the Court ordinarily defers to the legislature’s stated intent, id., at 361, only the clearest proof will suffice to override that intent and transform what has been denominated a civil remedy into a criminal penalty. See, e.g., ibid. Pp. 4—5.

The characteristics of the Act (civil remedy)  overtime has become increasingly punitive and in the courts opinion, such purpose and or effect left an open door to override the intent from the civil remedy into a criminal penalty. By the nature of the increasingly overbroad state and municipal infringements of the rights of sex offenders and the multiple split decisions in various jurisdictions concerning the constitutional infringements by these additional restrictions. However, the open door leans toward the court's intervention or override legislatures stated intent of the providing proof that intent has become a criminal penalty.

This will take skilled constitutionalist such as Norman Pattis and others to draft the challenge of  the increased infringements of our rights to demonstrate that the intent has become punitive with criminal penalty in the framework of the intent of the legislation not just in the penalty of failure to  register.