Tuesday, March 8, 2022

Minnesota’s "Shadow Prison" for "Sex Offenders", report published in The Crime Report

 UPDATE: It seems there was a glitch in the system at The Crime Report that got fixed, so it is back online. But, just in case, the article is a few months old now so i'll keep this here. At first it was suspected the MSOP had something to do with it but apparently not. Still, since it is been up a while, I'm reporting it here. 


Minnesota’s ‘Shadow Prison’ for Sex Offenders

By Derek W. Logue | September 28, 2021

In a landmark 1997 decision, Kansas v. Hendricks, the U.S. Supreme Court upheld civil commitment for those convicted of sexual offenses while allowing lower commitment standards used in the past.

In his concurring opinion, then-Justice Anthony Kennedy stated:

We should bear in mind that while incapacitation is a goal common to both the criminal and civil systems of confinement, retribution and general deterrence are reserved for the criminal system alone…If, however, civil confinement were to become a mechanism for retribution or general deterrence, or if it were shown that mental abnormality is too imprecise a category to offer a solid basis for concluding that civil detention is justified, our precedents would not suffice to validate it.

In the years following Hendricks, states have turned civil commitment centers into expansions of state prisons, detaining people long beyond the end of their court-issued sentences and detaining them indefinitely.

Many stay incarcerated until death. Nowhere is this more evident than in the state of Minnesota.

The Minnesota Sex Offender Program (MSOP) was initially established in the early 1990s as a civil detention program for anyone convicted of a crime diagnosed with a “psychopathic personality,” but the program shifted focus specifically to those convicted of sexual offenses within a couple of years.

Following the high-profile murder of Dru Sjodin in 2003, the program was expanded from 100 beds to roughly 700 across two facilities in Moose Lake and Saint Peter. Governor Tim Pawlenty symbolically passed a moratorium in 2006, but for the first 20 years of the program, no prisoners had ever “graduated” and earned a conditional release from the MSOP.

A class action lawsuit against the MSOP struck an early victory in the 2015 Minnesota District Court ruling Karsjens v. Jesson, Judge Donovan Frank declared the program unconstitutional in an as-applied challenge and ordered many changes to the program, including providing a clear pathway to release.

This ruling was overturned on appeal to the Eighth Circuit, but it opened the door for a handful of releases from the MSOP. Between 2012 and 2021, Minnesota has granted only 14 full discharges and allowed 28 former MSOP prisoners to live outside the walls of the program on conditional release.

At least 88 prisoners “graduated” by death.

Minnesota has the highest per-capita civil commitment population. California, a state with seven times the population of Minnesota and the largest civil commitment program in America, only detains about 200 more prisoners than Minnesota does.

Not content with the trickle of releases and an unclear path for release, the civil detainees at the Minnesota Sex Offender Program and their loved ones have tried many innovative ways to raise awareness of their plight. A coalition of MSOP prisoners and their loved ones formed “Voices of OCEAN” (Overcoming Corruption Encouraging All Nations) to coordinate protests and awareness campaigns both inside the and outside the confines of the MSOP.

In 2021, MSOP conducted two hunger strikes while their loved ones organized a series of “Honk-Ins” in front of the Moose Lake and St. Peter facilities in a show of solidarity, and protesting at the residence of Department of Human Services (DHS) Commissioner Jodi Harpstead.

OCEAN members have derided the program as “Minnesota’s Shadow Prison” or “M$OP.”

On July 18, OCEAN hosted a conference and rally at the State Capitol building.

While the event attracted legal reformist groups like Women Against Registry and Once Fallen and representatives from five Midwestern states, the message of reform was largely ignored by lawmakers and the Minneapolis/St. Paul news media.

The Voices of OCEAN and other legal reformists were also largely excluded from the August 2, 2021 legislative hearing on the direction of the MSOP; victim advocates and civil commitment advocates were invited to the event while OCEAN was relegated to pre-submitted written testimony.

The mainstream media seems only interested in the shock value of the protests, and the Minnesota legislature only seem interested in treating the plight of the OCEAN members as a political football.

The price of speaking out against the injustices of the MSOP has come at a price for those still detained within the MSOP. As noted on the #EndMSOP and Voices of OCEAN Facebook pages, the detainees have been punished in many ways in efforts to deter the prisoners from participating in peaceful demonstrations.

The MSOP staff would only consider those rejecting water as well as food to be “hunger strikers,” which led to a faster decline in the health of the hunger strikers. Staff members have labeled engagements in protest activities or possession of protest materials as “counter-therapeutic,” leading to disciplinary hearings, banishment to the punitive “Omega Unit,” and implying protesting conditions of confinement will lead to a revocation of treatment progress. Often, these actions come without warning and without explanation.

A 2011 evaluation from the Minnesota Office of the Legislative Auditor concluded that the program was costly, lacked reasonable alternatives to civil commitment at a high-security facility, unnecessarily detains people who are actually not considered a risk to society, experienced frequent disruptions in staff and leadership, and lacks a clear pathway for progression in the program.

The Auditor recommended exploring lower cost alternatives, changes in commitment standards and sentencing policies, and providing actual treatment. Ten years later, little has changed.

There has not been an endgame to the embattled “Minnesota Sex Offender Program.”

Minnesota will spend $96 million on the MSOP in 2021, or $393 per day per inmate ($143,445 per prisoner in 2021). The COVID-19 pandemic and the subsequent economic crisis should make the legislature reconsider its unwavering support of this controversial program.

The MSOP is not sustainable as it exists today. There is no better time to take the message of MSOP reform seriously than right now.

Derek W. Logue is a Nebraska registrant and activist for the rights of returning citizens, and founder of the sex offense education and reform website OnceFallen.com.

Saturday, February 26, 2022

Sticks and Stones part 2

Last weekend, I wrote a brief rant about how trolls attacked a fellow anti-registry activist group. These trolls flooded the page with insults while demanding we speak with them on our position. 

It is funny how people have the audacity to attack someone then demand their victims sit down with them and discuss why they oppose the attackers' viewpoints. They obviously are too STUPID to realize their trolling, making threats, and making harassing messages in violation of real-world, existing cyberharassment law is one of the key reasons why we fight against the registry. 

So in desperation, the trolls try to appeal to personal ego. 

1. "What are they hiding?" 

Nothing. Every anti-registry group and advocate with a public website prominently displays our mission statement. Many of us also use our real names, and even if we don't, we have the right to free and anonymous speech, much like the trolls who mostly use screen names to hide their identies. (I assume it is because tey KNOW that what they have been doing can land them in prison.) My name is on my website, yet the trolls make a spectacle out of trying to reveal my identity, because they're so stupid they didn't realize for days that I had a contact page on my website. 

2. "Why won't they tell us what they stand for?"

First, see Question #1. Second, you're too lazy to research. It takes more than a 45 second TikTok video to learn about a complex subject. Third, most in the opposition cannot carry a rational debate and resort to name calling. I'm not going to waste my time debating someone who calls me foul names and expects me to take their abuse. No, fuck you. 

Trolls lack even basic reading comprehension. One such troll, for example, was in an interracial relationship, so I merely asked how she'd feel if someone used racially insensitive language regarding her or her significant other after repeatedly asking her to stop disrepecting me, and the obvious response was "OMG ur a rassis." Trolls are incapable of critical thinking. This is the "No Child Left Behind" class all grown up. 

You come to one of my pages to make stupid comments, I flag it for spam and move on. I don't like arguing with idiots. 

Oftentimes, this is accompanied by claims of cowardice. It is not cowardice to block idiots who waste my time. I'm only interested in talking with intelligent people. No one, not even the trolls, would like conversatioms where the only remarks are insults. 

I've heard it all before. Over a decade and a half of hearing the same lame comments from mentally deficient people has desensitized me to your words. It does, however, motivate me to continue my work to ABOLISH the registry. 

I am tired of professional victimhood being used as an excuse to lash out at others. Get some therapy and GTFOH. 

PS: I see my personal stalker is still crying at my latest victory over the Book Crime Family. Ha ha, keep seething, loser!

Saturday, February 19, 2022

"Sticks and Stones"

 Remember as children, we often heard the expression, "sticks and stones may break my bones, but words will never hurt me?" As children, we never really believed it. 

As an adult, however, I grew to understand that words hurt only so long as you allow them to hold power over you. 

I was reminded of this as I volunteered a clean up a troll attack on the social media page this past week. While the barrage of trolling comments were new to this group, it ws nothing new to me. As a vocal advocate of abolishing the public sex offense registry and a person on the registry myself, I've endured numerous attacks over the years. I've dealt with many vigilantes, both individually and entire groups. I've had my share of 3am phone calls, death threats, people who create websites dedicated to me, and personal stalkers. I've had specific threats, and I've even had trolls publish maps and pictures of my residence. And most of thse vigilante douchebags know they will face little to no repercussions. 

If you are going to be a bold activist, you must develop thick skin. I spent a few minutes each day for a week deleting comments and banning the offenders. I take pleasure in it, too, because over the years, the worst thing you can do to an online troll is delete their messages, since trolls revel in responses. They believe if you respond to them in any way, they are "winning."  

It takes less time to ban someone that it takes for that person to spend hours spamming a social media page. Nasty emails get flagged for spam. Nasty messages get ignored and swept away. 

It gets easier to do in time because there are honestly few new comments. Here are a few examples (not verbatime but many comments sound more or less like this):

"Woodchipper go brrr" -- And lame, uneducated trolls go "Durrrr." 

"If you are against the registry you must be on it." -- Well, in my case, I am, so "No Shit Sherlock", but many activists are not, and a growing number of legal experts oppose the registry, and they don't have loved ones on the registry. I guess it must take a working brain to figure out that a government blacklist 

"Pedifile" -- The least you cabn do is spell the term right. Idiots spell this term like it is something you pull out at the mail salon to scrape callouses. 

"I hope you get raped" -- Sometimes said in conjunction with prison "Gen Pop" or "Bubba" comments. It seems a bit ironic that people promote rape to say erape is bad. Did I say ironic? I meant MORONIC. 

**posts picture of my registry flier** -- Not that it is ever enforced, but the registry does state misusing the registry to harass, threaten, intimidate, or attack those on the registry, so they are engaging in criminal activity, so it is the same as the "I  hope you get raped" comments. 

**speaks in memes, emojis, and the same lame, highly overused GIFs like blinking man or girl with goofy confused expression** -- They cannot form their own opinions and speak like a human. Not worth my time.  

"Accept your punishment" -- You are admitting the registry is punishment. That actually benefits us since the ultra-conservative SCOTUS feels otherwise. 

"You'll never see me coming" -- You're right, because you never show up. 

"Expect Us." -- Anonymous isn't even a thing anymore. At best, these losers will try a DDOS attack that'll get fixed within a few minutes since ISPs have improved detecting attempted DDOS attacks. 

People have been led to believe that if they say mean things to me, I'll quit opposing the registry. Well, it hasn't happened in the 16 years. Far more powerful people, like the Ron and Lauren Book Crime Family, tried and failed, and now they're about to get sued into oblivion. 

Trolls, don't waste my time. I've heard it all before. Insulting dead members of my family, or my manhood, or my sanity, or encouraging suicide, or calling me names, or attempting to annoy me into submission is simply fueling me to press on with my message of total abolishment of the sex offense registry. 

And when the current gang of internet gangsters finally tires of being deleted and move on to the next gripe of the day, I'll still be here, just like the internet, "doing my thing," just as I have done since 2004. So the trolls can kiss my ass. 

Friday, January 7, 2022

The OnceFallen.com Annual Report 2021

 OnceFallen.com Annual Report 2021

New Contact Statistics

Summary: This year, I had more new contacts than any other year. Many were prisoners, which is unsurprising since I respond to prisoner inquiries and print out some materials for them. Around March, I was added to the FairShake network’s list of resources, which caused a massive spike in new contacts in 2021. 

OnceFallen major accomplishments:

  • Your Life on The List: Edition 2 released: It took longer than expected by the 2nd Edition made many improvements over the 1st edition and is up for sale at Amazon.com
  • St. Paul MN, Rally Against the MSOP Civil Commitment Program: Helped organize and volunteered at the outdoor event at the Minnesota State Capitol in July
  • New, more mobile-friendly website: I had to raise money to pay someone to create the new website but not it is more user-friendly. 
  • Most ever new contacts: New contacts in 2021 shattered the previous records set in 2020. 
  • Media appearances: OnceFalen got three OpEds in The Crime Report, and was feaured in the Voloch Conspiracy (WaPost legal blog) in March (in regards to my victory over the evil Florida State Senator Lauren Book), as well as CBS4 in Denver (regarding the SOMB proposed rule change), the latter of which led to inclusion in numerous media outlets. 


Total New Contacts 2021 – 667 (476 in 2020, +191, 40%)

Reasons for initial contact, in order of most to least common reasons for first contact. Please note, this is only for INITIAL contact, and in the case of prisoners, it may begin with a “general info” contact followed by a later resource request:

  • Housing Leads (132): Requests for housing information
  • Sex offense Laws (96): Inquiries about many aspects of sex offense laws, from registration to residency restrictions to fees to GPS and related laws. 
  • Assorted questions (91): Various topics including resource sharing, website issues, harassment issues, and even contact from vigilantes
  • ICoN Inquiry (84): Requests for being added to the Informational Corrlinks Newsletter (ICoN or various questions about the ICoN)
  • General Info (73): This category is for people who have inquiries that are broad in nature (“what can I expect as a Registered Person?”) or those who were not sure what they needed when making initial contact. These are usually handled by phone calls. 
  • “Your Life on The List” Book (34): First contacts asking specifically about the book, including requests for a free copy.
  • State-Specific Laws & Resources (34): Requests specific to a specific state
  • Activism advice (31): General discussions on activism or specific discussions of activism projects 
  • Legal Advice/Lawyer referrals (26): I don’t provide either, (advice is only lawman advice and I make them aware of that), but I try to offer advice when I can find it. 
  • Supervision/Probation/Parole Issues (24): Issues related to being “on paper”
  • Prisoner Needs (15): I don’t offer certain services to prisoners; in some cases I can merely provide a list of prisoner-specific resources. 
  • Various 50 State Guides printouts (12): I have offered prinouts of the AtwoZee 50 state travel guide and the relief from registry spreadsheets from the CCRC to prisoners, but with the release of my registry survival guide, I receive fewer initial requests for these guides than in the past.
  • Employment issues (10): Various issues regarding finding and keeping a job 
  • Media contacts (4): Requests for interviews

Locations: 483 of the 667 inquiries gave a location. Six were outside the USA (3 UK, and one each from Ukraine, Germany, and another nation he did not specifically state for privacy reasons)

Because Fairshake added me to their prisoner resource list, there was a massive spike of new inquiries from a single state—Wisconsin. 42 US States, DC, and Puerto Rico had at least one contact each—I made no known contact with anyone from AK, HI, ME, NM, ND, RI, VT, and WY in 2021. 

States ranked from most to least inquiries: Wisconsin (129), Florida (41), Texas (38), Ohio (33)Illinois (20), California (19), Pennsylvania/Virginia (14 each), New York (13), Georgia (12), Minnesota (11), Louisiana (9), Alabama/Missouri/Washington State (8 each), Arkansas/Tennessee (7 each), Arizona/Colorado/Michigan (6 each), Indiana/Kansas/Kentucky/Oregon (5 each), Deleware/Iowa/North Carolina/New Jersey/Oklahoma/South Carolina (4 each), Connecticut/Massachusetts/Utah (3 each), Idaho/Nebraska/Nevada/Puerto Rico/West Virginia (2 each), DC/Mississippi/Montana/New Hampshire/South Dakota (1 each)

Initial Contact Type from most to least common: Corrlinks (265), email (211), letter/postal mail (114), phone (79), text (19), Facebook (6), LinkedIn (2), Support forum (1)

New contacts by month; January (66), February (73), March (87), April (50), May (65), June (69), July (39), August (54), September (48), October (34), November (48), December (43)

Corrlinks Informational Newsletter (ICoN) subscribers: Stats for this were complicated by a new development. At the end of 2021, I have 1196 total contacts in Corrlinks, but of those, 385 are state prisoners (nearly all from Wisconsin), and because it costs extra to send email to state prisoners, these 385 do not receive monthly newsletters. That leaves 811 federal and CCA prisoners receiving the newsletters. In 2020, there were 637 subscribers, so this is an increase of 174 subscribers, or 27.3%.

Letter Stats: OnceFallen received 337 total requests by mail (note than many were repeat requests), which is 52 (18.25%) more than last year. 

Financial Resources & Expenses

OnceFallen did conduct a fundraiser to pay for a new, more modern and mobile-friendly website in March 2021. The expense for this new website plus the cost of converting the website to a new server totaled about $1200. However, the new service costs just under half of the old Yahoo Small Business service I was using, so annual website fees are now only about $60 a year, a far more manageable amount than the $144 a year Yahoo was charging me. 

The only other major expense was the trip to St. Paul MN as part of the July rally against the MSOP civil commitment program, but since St. Paul is a relatively short distance from Nebraska and the hotels were reasonable, travel expenses were under $700 for two representatives. Other typical expenses for OnceFallen.com include stamps, envelopes, paper, and other office supplies. 

Financial support increased slightly over 2020 numbers, and OnceFallen.com ends the year with enough to cover any immediate needs in the coming months, and the website fees are paid through September, so there is no need to fundraise. Furthermore, with ACSOL planning a major event in 2023 in DC, OnceFallen.com is not currently planning any major event for 2022 unless something I feel is an emergency situation arises. 

Website Data: I can no longer accurately report website usage data. However, with the site now mobile friendly, usage likely went up as the site became more accessible. 

Thursday, November 25, 2021

The need to change the offensive term "sex offender" is gaining traction, but Registered Persons need the guts to rise up against the hate

My name is Derek Logue, and I refuse to accept the offensive label society tries to force upon me. 

For the past few days, I've taken a bit of heat over a comment I made at the Colorado SOMB meeting on 11/19/2021, which was republished  by CBS 4 Denver. I had stated, “Referring to me by a label for something I did half my life ago is inappropriate and downright offensive.”

First, a message to my haters -- Let me be clear, I don't care if you are upset by my statement or my existence, or, to use the Internet vernacular, IDGAF. Furthermore, using my past or the various derogatory labels in an effort to cause me distress or harm isn't going to work. After 15 years of speaking out against the offensive label, I've seen and heard it all from Internet gangsters, trolls, right wing horse-paste lickers, QTards, and folks trying to be the next viral sensation, so it is going to take more than a few nasty emails, calls, and social media posts to silence me. 

What the haters ARE doing is proving my point AND the point of the Colorado SOMB made at last week's meeting, i.e., the negative impact of the label of "sex offender." 

Those of us who are on the registry need to be more vocal, however. It takes bravery. It takes guts. It takes the willingness to defend yourself even if the words aren't "safe for work." 

A few years ago, legendary boxer Mike Tyson was conducting a routine interview when this reporter decided to throw up Tyson's registry status in his face. Tyson wasted no time expressing his feelings about the reporter's actions:

I think those of us on this government blacklist needs to be more like Iron Mike when it comes to dealing with idiots who continue to try to throw the past up in our faces. Of course, based on my 15 years of experience, most of those who say nasty things online don't take it any further. 

For starters, you can go to the Colorado SOMB and tell them why the phrase "Adults who commit sex offenses" is not really an improvement over the term "sex offender." (Personally, I chose client" as the alternative.) Let the haters waste their time whining on social media while we work on actual change. Stop relying on NARSOL and ACSOL to do the talking for you. Stop cowering in a corner. We ALL have a responsibility to do our part. 

Friday, October 29, 2021

"Registered Persons" and "Registered Citizens" or a similar term should be in the dictionary

 The Cincinnati Enquirer website's headline story of the morning is, "Merriam-Webster (finally) recognizes Goetta, adds word to the dictionary." 

For the sake of those who have never been to Cincinnati, Goetta is a food item as unique to the Cincinnati Metro area as the famed Cincinnati Chili. Goetta is primarily composed of ground meat (pork, or sausage and beef), pin-head oats and spices. It is often served up into patties, primarily at breakfast, but could be served in sandwiches, burgers, or even pizza. Goetta even gets its own "Glier's GottaFest" every year around late August. 

It seems silly to finally recognize a food item that that has been around for well over a hundred years (the idea was brought by German immigrants in the 1800s), while also adding more recent inventions like "dad bod", "copypasta", and "FTW" (although they failed to mention the more vulgar and favored use, opting to claim it means "for the win" rather than "F**k the World.")

But when it comes to ways to define those convicted of sexual offenses, most people still use the derogatory phrase "sex offender" or one of the more offenseive "P" words. 

In my own writing, I've currently settled on using the terms Registered Person, Registered Citizen, or simply Registrant. Over the years, we've also used ex-sex offender, former offender, or Persons Forced to Register (PFR). It would be to our benefit to come up with a consistent word or phrase to describe people forced to register and listed on a publicly accessible registry. That term must be used consistently and added to the dictionary. 

Unfortunately, when I write letters to the editor, terms I use are sometimes changed to "sex offender," which I feel detracts from the message. 

So what term do YOU prefer? Comment below. 

Saturday, September 25, 2021

Kansas Supreme Court Justice Eric Rosen issues scathing dissent of ruling that upheld lifetime registration for juvenile registrant

Dissenting opinions rarely make headlines, but the dissent by Kansas Supreme Court Justice Eric Rosen is an amazing read and worth sharing. This judge gets it. You may it useful in future battles against the registry. It is more amazing given the fact that while KS Supre Court Justices are appointed, voters elected to retain Rosen in the 2020 election. 

ROSEN, J., dissenting: For more than 15 years I have been a proud member of a court that has historically taken an unyielding stand against the degradation of rights guaranteed by our Constitution. See In re Adoption of Baby Girl P., 291 Kan. 424, 242 P.3d 1168 (2010); In re Adoption of G.L.V., 286 Kan. 1034, 190 P.3d 245 (2008) (protecting rights of natural parents); State v. Ryce, 303 Kan. 899, 368 P.3d 342 (2016), adhered to on reh'g 306 Kan. 682, 396 P.3d 711 (2017) (striking down as unconstitutional statute criminalizing refusal to submit to testing of bodily substances  deemed to have been impliedly consented to); In re L.M., 286 Kan. 460, 470, 186 P.3d 164 (2008) (upholding juveniles' constitutional right to jury trial). Even in the era of Jim Crow and Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), this court protected civil rights against forces of discrimination. See, e.g., Board of Education v. Tinnon, 26 Kan. 1, 22-23 (1881) (power to divide city into districts does not include power to divide city according to race, color, nationality, or descent); Webb v. School District, 167 Kan. 395, 403-04, 206 P.2d 1066 (1949) (creation of special school district carved out to exclude African-American children was impermissible subterfuge for segregation). 

Today, I feel none of that pride. Today, the court eschews the United States Constitution and the citizens it stands to protect for reasons I cannot comprehend. Today, I dissent. 

I agreed with the majority of the court in Doe v. Thompson, 304 Kan. 291, 327-28, 373 P.3d 750 (2016), when we concluded lifetime registration constituted punishment for adult offenders. And I certainly believe it constitutes punishment for N.R., who was 14 years old when he committed the acts for which he was adjudicated an offender and placed on probation—not an adult convicted of a high-level felony and sent to prison—and for which our Legislature has retroactively imposed a life sentence. 

I will initially consider the requirements and burdens that the Kansas Offender Registration Act (KORA) places on individuals and the negative impacts that ensue from registration. I will then explain why I do not consider this court's opinion in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016), a case with which I disagree in any event, to be constraining precedent in the present appeal. I will point out the differences between public access to juvenile adjudications and public access to sex-offender registries. I will point out the dramatic imbalance between the public benefit of offender registration for juveniles and the lifetime punitive effect that such registration has on juveniles. And I will reiterate the special circumstances of juvenile behavior that distinguishes it from similar behavior committed by adults. I will conclude that registration is plainly punitive in nature, even if not in intention, and the registration statute, as applied to this appellant, is an unconstitutional ex post facto violation.

The Ex Post Facto Clause in the United States Constitution prohibits states from "pass[ing] any . . . ex post facto Law." Article I, section 10. A law violates this prohibition when it "'increase[s] the severity of [the] punishment'" after the crime was committed. State v. Todd, 299 Kan. 263, 278, 323 P.3d 829 (2014) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 67 L. Ed. 2d 17 [1981]). The first step in analyzing whether legislation violates this constitutional directive is determining whether it constitutes punishment. In making this assessment, this court applies the "intenteffects" test. Under this framework, we deem legislation punishment when it is punitive either in purpose or effect—even if the Legislature intended a "regulatory scheme this is civil and nonpunitive." To assist with this analysis, this court has turned to the factors utilized by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963):

"the degree to which the regulatory scheme imposes a sanction that: (1) has historically been regarded as punishment; (2) constitutes an affirmative disability or restraint; (3) promotes the traditional aims of punishment; (4) is rationally connected to a nonpunitive purpose; (5) is excessive in relation to the identified nonpunitive purpose; (6) contains a sanction requiring a finding of scienter; and (7) applies the sanction to behavior that is already a crime." Petersen-Beard, 304 Kan. at 198 (citing Mendoza-Martinez, 372 U.S. at 168). 

The United States Supreme Court has noted that the first five factors are the "most relevant." Smith v. Doe, 538 U.S. 84, 97, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003).

The State alleged that when N.R. was 14 years old, he committed acts that, if he had been an adult, would have supported a charge for rape. N.R. pleaded guilty and was adjudicated an offender. A magistrate judge then suspended the imposition of sentence and placed N.R. on probation. The court also ordered N.R. to register as a sex offender "locally" for a period of five years. Shortly before this time expired, the Kansas Legislature enacted legislation requiring N.R. to register for life. N.R. acknowledges that the Legislature intended KORA be civil and nonpunitive but argues the requirement he register for the rest of his life is punitive in effect when applied to him. 

KORA requires N.R. to register—in person—at least four times per year. When he is experiencing homelessness, he must register every 30 days and describe every place he has slept and frequented since the last registration and every place he intends to sleep and frequent until the next registration. K.S.A. 22-4905. He must also register in person anytime he moves, experiences a change in employment status, alters his school attendance, uses temporary lodging for seven or more days, or if any of the following things commence, change, or terminate: name, telephone number, identifying physical characteristics, occupation, employer, driver's license, identification card, vehicle information, professional licenses, designations, certifications, treatment for "mental abnormality or personality disorder," email addresses, online identities, personal web pages, travel documents, or name and telephone number of probation officer. K.S.A. 2020 Supp. 22-4905(h); K.S.A. 2020 Supp. 22-4907. If N.R. manages to keep up with these requirements, much of this information is posted on an easily accessible offender registration website that members of the public may peruse at their leisure. K.S.A. 2020 Supp. 22-4909. If N.R. fails to fulfill the requirements, he can be prosecuted and sentenced to years of prison time, even though he was never confined in a juvenile correctional facility when he was adjudicated an offender for the underlying offense. K.S.A. 2020 Supp. 22-4903; K.S.A. 2020 Supp. 21-6804

N.R. presented evidence that these onerous requirements have wrought havoc on his attempts to move beyond his adjudication and function within his community. To be brief, registration has caused him to experience homelessness, created barriers to substance abuse treatment, forced him apart from his family, created insurmountable financial strain, severely compromised his mental health, and put his life in danger. Countless jurists, scholars, and social scientists have confirmed how common these burdens are to those required to register. See E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997) (registration causes registrants and families "profound humiliation and isolation," jeopardizes employment and housing, destroys relationships, and spurs "'vigilante justice,'" frequently enough "that registrants justifiably live in fear"); Tewksbury, Exile at Home: The Unintended Collateral Consequences of Sex Offender Residency Restrictions, 42 Harv. C.R.-C.L. L. Rev. 531, 533 (2007) (offender registrants report several collateral consequences, "including employment difficulties, relationship problems, harassment, stigmatization, and persistent feelings of vulnerability"); Prescott, Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism, 48 Conn. L. Rev. 1035, 1056-57 (2016) (registration causes difficulty with finding employment, securing housing, and maintaining relationships); Zevitz & Farkas, Sex Offender Community Notification: Assessing the Impact in Wisconsin, 9 (Washington D.C.: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, 2000) (77% of offender registrants reported "being humiliated in their daily lives, ostracized by neighbors and lifetime acquaintances, and harassed or threatened by nearby
residents or strangers").

The suggestion that these requirements and their effects are not punitive is simply wrong. But today's majority shrugs its shoulders and tosses these realities aside. It points out that a previous majority of this court held mandatory lifetime registration for adult offenders did not constitute punishment for purposes of a cruel and unusual punishment analysis. Slip op. at 8 (citing Petersen-Beard, 304 Kan. 192). It takes the untenable position that, although the State action may be burdensome, it is not technically "punishment" and is therefore permissible. This position is at odds with authority holding that State action need not be intended to be punitive in nature for it to violate constitutional protection. See, e.g., Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (indifference to prisoner needs may create constitutional claim); Trop v. Dulles, 356 U.S. 86, 95, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (even clear legislative classification of statute as "non-penal" does not alter fundamental nature of plainly punitive statute); see also Ingraham v. Wright, 430 U.S. 651, 684, 97 S. Ct. 1401, 51 L. Ed. 2d 711 (1977) (White, J., dissenting) (state actions that are so cruel that they are
not permitted as penal acts must not be permitted in non-penal contexts). 

The majority avoids mentioning that, instead of meaningful analysis, much of the Petersen-Beard decision consisted of string cites to federal cases in which courts considered whether other state registration schemes were punitive. See Petersen-Beard, 304 Kan. at 214 (Johnson, J., dissenting) (observing that majority looks to federal caselaw even though "[o]rdinarily, any analysis of a Kansas legislative act would not begin with a consideration of merely persuasive federal authority when there are decisions of this court on point"). Then, it considers whether there is anything different about N.R.'s circumstances that would make mandatory lifetime registration punitive for him. It ultimately concludes the registration requirements are not so onerous as to constitute punishment for N.R. Slip op. at 17. Such a stunning conclusion leaves one at a loss as to what, if any, condition KORA could create that the majority would consider onerous. 

In its first point, the majority rejects N.R.'s claim that the registration requirements cause an affirmative disability or restraint by making it difficult for him to find employment and housing and subjecting him to shame and ostracization in his community. The majority reasons that these consequences come from his juvenile adjudication, and those court records are already public, so the registration adds no disability or restraint. Slip op. at 12. The majority relies entirely on the United States Supreme Court decision in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003), to come to this conclusion. Slip op. at 11. In Smith, the Court concluded that mandatory lifetime registration requirements under Alaska's registration scheme for an adult offender added no affirmative disability or restraint because the offender's conviction was already public. 538 U.S. at 101.

There is a glaring oversight with the majority's reasoning: it pays no attention to the difference between N.R.'s juvenile record being "open for public inspection" and registration on a sex offender database. There are, in fact, very consequential differences. To discover that N.R. was adjudicated for a sex offense through his juvenile record, one must travel to the courthouse, pay a fee, and look up his file on the public database. Alternatively, one can enter personal information into the Kansas Bureau of Investigation's (KBI) website to create an online account, pay a fee, and then look up N.R.'s record. In either case, one must at least know N.R.'s name to complete the search. The KBI website will also ask for N.R.'s birth date. I suspect most people are unaware they can do either of these things. In contrast, any person with internet access can look to see whether N.R. is on the sex offender registry without creating an account and without cost. In fact, one need not even know N.R.'s name to find him on the registry. Anyone can plug in an address and see the names and locations of registered sex offenders in any area they wish. People can find N.R. without looking for him. 

In Thompson, this court noted the problem with relying on the 2003 Smith decision to hold that registration is akin to having a public criminal record. We observed that the Smith Court described the Alaska registration system as a "passive" one and compared it to "physically visiting 'an official archive of criminal records.'" Thompson, 304 Kan. at 321 (quoting Smith, 538 U.S. at 99). Such a description, we explained, is "antiquated in today's world of pushed notifications to listservs and indiscriminate social media sharing." Thompson, 304 Kan. at 321 And we pointed out that, since Smith, the Supreme Court has "recognized the vast amount of data that is currently available to most citizens on their smartphones and that 'a cell phone [can be] used to access data located elsewhere, at the tap of a screen.'" (Quoting Riley v. California, 573 U.S. 373, 397, 134 S. Ct. 2473, 189 L. Ed. 2d 430 [2014].) Other scholars have advanced similar criticisms. See, e.g. Carpenter, A Sign of Hope: Shifting Attitudes on Sex Offense Registration Laws, 47 Sw. L. Rev. 1, 25 (2017) ("[w]hen Smith was decided in 2003, the Internet's impact may not have been as well known or understood. So much so that the Court in Smith concluded that providing a name, address, and conviction on a public registry was tantamount to that same information being made available in a court-created public document"). 

It is clearly much simpler to get to N.R.'s adjudication from his registration than from his public record. But, even more disabling than this easy access is the fact that, once N.R.'s name is registered, he is officially on the list. To the public, being on the sex offender registry is a severe and serious marker; the government has deemed the people on this list so dangerous they need to be accounted for and identified to those around them. A law review article opines that "[s]ex offenders have supplanted insanity acquittees as the most despised segment of the American population." Cucolo & Perlin, "They're Planting Stories in the Press": The Impact of Media Distortions on Sex Offender Law and Policy, 3 U. Denv. Crim. L. Rev. 185, 207 (2013). The authors note that people so labeled are "[r]egularly reviled as 'monsters' by district attorneys in jury summations, by judges at sentencings, by elected representatives at legislative hearings, and by the media" and that "correctional officers rate sexual offenders as more 'dangerous, harmful, violent, tense, bad, unpredictable, mysterious, unchangeable, aggressive, weak, irrational, afraid, immoral and mentally ill' than other prisoners." 3 U. Denv. Crim. L. Rev. at 207-08. Another article explains "[a]s a result of the media's depiction of a one-dimensional 'sex offender' in broadcast news and newspaper articles, the general public has conceptualized what it believes to be the prototype of this 'monstrous imminent evil'—a male who violently attacks young children who are strangers." Cucolo & Perlin, "The Strings in the Books Ain't Pulled and Persuaded": How the Use of Improper Statistics and Unverified Data Corrupts the Judicial Process in Sex Offender Cases, 69 Case W. Res. L. Rev. 637, 644 (2019). This kind of stigma is debilitating; N.R. attested to the ostracization and death threats to which he's been subject since his registration. 

These shocking barriers to N.R.'s ability to move beyond his juvenile adjudication and live a life outside the shadow of that event undoubtedly add an affirmative disability and restraint to N.R.'s life beyond what "public access" to his juvenile record does. The Legislature has constructed a scheme that equates to an effective banishment. This court has acknowledged this before. State v. Myers, 260 Kan. 669, 695, 923 P.2d 1024 (1996) (KORA imposes affirmative disability or restraint because "[u]nrestricted public access to the registered information leaves open the possibility that the registered offender will be subjected to public stigma and ostracism" making it "impossible for the offender to find housing or employment"). And scholars have noted this reality for other registrants. See Prescott, Portmanteau Ascendant: Post-Release Regulations and Sex Offender Recidivism, 48 Conn. L. Rev. 1035, 1055 (2016) ("most agree that carrying the label 'sex offender' is an order of magnitude more difficult to surmount" than "[c]riminal records alone"). The majority's quick dismissal of N.R.'s arguments—without any actual analysis of what registration means for him against the internet of today and the instantaneous access to information via social media—is callously dismissive and grossly blind to realities of the present day. 

Next, the majority summarily dismisses N.R.'s argument that "public dissemination of his information" is excessive in relation to its purpose. It concludes that the analysis regarding whether the public dissemination adds an affirmative disability or restraint resolves this claim, too. Slip op. at 12-13. In doing so, it ignores the crux of the question this factor presents: Is there an acceptable balance between the punitive effects of registration on N.R.'s life and registration's contribution to public safety? The answer is no. 

The majority notes that the requirements N.R. faces are imposed in the name of public safety. But studies have shown that, in contrast to what the Supreme Court said in 2003, the risk of recidivism among sex offenders is not "frightening and high." Smith, 538 U.S. at 103 (quoting McKune v. Lile, 536 U.S. 24, 34, 122 S. Ct. 2017, 153 L. Ed. 2d 47 [2002]). It is, in fact, remarkably low. A Department of Justice study looked at the criminal records of 272,111 released prisoners in 15 states over a designated period of time. Bureau of Justice Statistics, Recidivism of Sex Offenders Released from Prison in 1994 1 (2003). It found that only 5.3 percent of sex offenders in the study were arrested for a new sex offense and only 3.5 were convicted. Bureau of Justice Statistics at 1, 2. In contrast, the overall rearrest rate for non-sex offenders was 68 percent. Bureau of Justice Statistics at 2. 

As scholars could have predicted, the registries appear to have had little effect on recidivism rates. A 2011 study found "little evidence to support the effectiveness of sex offender registries." Agan, Sex Offender Registries: Fear Without Function? 54 J.L. & Econ. 207, 208 (2011). Many commentators have written about the failings of these registries. See, e.g. Huffman, Moral Panic and the Politics of Fear: The Dubious Logic Underlying Sex Offender Registration Statutes and Proposals for Restoring Measures of Judicial Discretion to Sex Offender Management, 4 Va. J. Crim. L. 241, 257 (2016) ("a
large majority of lawmakers acknowledge that strict legislative initiatives have led to no appreciable reduction in sexual misconduct"); Caldwell et al., An Examination of the Sex Offender Registration and Notification Act as Applied to Juveniles, Evaluating the Ability to Predict Sexual Recidivism, 14 Psychol. Pub. Pol'y & L. 89, 91 (2008) (citing multiple studies to support the notion that "[e]xtant research has not supported the effectiveness of sex offender registration and notification at reducing recidivism with adults").

And research reveals that registries, by and large, give us information we do not need. In his article "Sex Panic and Denial," Corey Rayburn Yung explains that "[f]amily members, friends, or other persons known to the victim commit approximately 93 percent of sexual offenses against children . . . ." Yung, Sex Panic and Denial, 21 New Crim. L. Rev. 458, 465 (2018). Thus, "[t]he prototypical fear-based myth . . . that there are a plethora of convicted sex offenders lurking in the bushes ready to attack any passing child or other victim" is false. 21 New Crim. L. Rev. at 465. If nearly all former juvenile offenders are not lying in wait to accost a stranger, then I can see no reason to publicly brand all of them for the rest of their lives as if they are. 

Finally, N.R. argues that KORA's registration requirements are excessive because they were imposed as a result of a juvenile adjudication. N.R. claims that, as a juvenile, he was "less culpable and less predatory than adults," and "less likely to reoffend and more amenable to treatment than adults." Consequently, he argues, imposing the same registration requirements to him as the scheme would impose on a convicted adult offender is excessive. For support, N.R. cites cases from this court and the United States Supreme Court that identify differences between child offenders and adult offenders. See State v. Dull, 302 Kan. 32, 52, 351 P.3d 641 (2015) (juvenile offenders have a "diminished moral culpability" compared to an adult offender); Miller v. Alabama, 567 U.S. 460, 471, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012) ("juveniles have diminished culpability and greater prospects for reform"); Graham v. Florida., 560 U.S. 48, 69, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (same); Roper v. Simmons, 543 U.S. 551, 569-70, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005) (juveniles have "'lack of maturity and an underdeveloped sense of responsibility,'" "are more . . . susceptible to negative influences and outside pressures," and "character" "is not as well formed" so "personality traits . . . are more transitory, less fixed"). 

N.R.'s argument brings the punitive effect of his lifetime registration requirement sharply into focus. If he is less culpable than his adult counterpart, and he is less likely to endanger the public, treating him as if he is just as menacing is indefensible. Social scientists and scholars have confirmed that juvenile offenders are distinct from adult offenders. A report compiled by Human Rights Watch explains:

"It is axiomatic that children are in the process of growing up, both physically and mentally. Their forming identities make young offenders excellent candidates for rehabilitation—they are far more able than adults to learn new skills, find new values, and re-embark on a better, law-abiding life. . . .
. . . .
"Adolescent thinking is present-oriented and tends to ignore, discount, or not fully understand future outcomes and implications. Children also have a greater tendency than adults to make decisions based on emotions, such as anger or fear, rather than logic and reason. And stressful situations only heighten the risk that emotion, rather than rational thought, will guide the choices children make. Research has further clarified that the issue is not just the cognitive difference between children and adults, but a difference in 'maturity of judgment' stemming from a complex combination of the ability to make good decisions and social and emotional capability.
. . . .
"MRI (magnetic resonance imaging) images of the anatomy and function of the brain at different ages and while an individual performs a range of tasks reveal the immaturity of the portions of children's brains associated with reasoning and emotional equilibrium. . . .
. . . . 
"Moreover, the fact that young people continue to develop into early adulthood suggests that they may be particularly amenable to change. . . . Both criminologists and development experts agree that '[f]or most teens, these [risky or illegal] behaviors are fleeting. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem behavior that persist into adulthood.'" Human Rights Watch, Raised on the Registry: The irreparable Harm of Placing Children on Sex Offender Registries in the US 25-27 (2013), available at https://www.hrw.org/report/2013/05/01/raised-registry/irreparable-harm-placingchildren-sex-offender-registries-us#.

A recent study confirms this assessment. It considered 106 different analyses of recidivism rates among juvenile sex offenders between 1938 and 2014. The most recent data set, captured between 2000 and 2015, reported a mean recidivism rate for juveniles of 2.75 percent. Caldwell, Quantifying the Decline in Juvenile Sexual Recidivism Rates, 22 Psychol. Pub. Pol'y & L. 414 (2016). A 2008 study assessed the effects of federal registration requirements on juvenile offenders. It observed that they were "based on the assumption that juvenile sex offenders are on a singular trajectory to becoming adult sexual offenders." But the authors of the study concluded "[t]his assumption is not supported by [the study's] results, is inconsistent with the fundamental purpose of the juvenile court, and may actually impede the rehabilitation of youth who may be adjudicated for sexual offenses." 14 Psychol. Pub. Pol'y & L. at 105. 

The research demonstrates that lifetime registration for a juvenile offender has no rational connection to its purported purpose. This is true for N.R., who committed acts when he was 14 years old for which he was adjudicated an offender—not criminally prosecuted and convicted of a high-level felony, as an adult would have been—and placed on probation. Our justice system did not deem N.R. too dangerous to be outside the confines of a correctional facility; based on the facts before it, the court treated him like the developing, reformable juvenile he was. But the Kansas registration scheme takes no heed of this detail. It subjects N.R. to lifetime registration, which amounts to potentially 80 or so years of quarterly (at least), in-person registration that has and will continue to wreak havoc on N.R.'s life. For the rest of his days, he is branded a sex offender for all to see. This is in light of the reality that N.R. is highly unlikely to reoffend. This means that lifetime registration for N.R. is unrelated to a nonpunitive
purpose, and, consequently, grossly excessive. 

These observations provide more than enough to establish that lifetime registration has a punitive effect on N.R. The remaining Mendoza-Martinez factors that the Supreme Court has considered significant in deciding whether legislation is punitive strengthen this conclusion. Blasting N.R.'s name, identifying characteristics, and location across the internet with a bright red "sex offender" designation is akin to historical public shaming and humiliation tactics. See Smith, 538 U.S. at 116 (Ginsburg, J., dissenting) ("public notification regimen, which permits placement of the registrant's face on a webpage under the label 'Registered Sex Offender,' calls to mind shaming punishments once used to mark an offender as someone to be shunned"); People in Int. of T.B., 489 P.3d 752, 767 (2021) (registration for juvenile resembles traditional punishments of humiliation and shaming, especially in "era of social media").

Although not part of the majority analysis, this factor demands our collective attention because the impact of shame and humiliation cannot be overstated. As one set of authors have explained, "'Shame is bordered by embarrassment, humiliation, and mortification, in porous ways that are difficult to predict or contain," and is one of the most important, painful, and intensive of all emotions.'" Perlin & Weinstein, "Friend to the Martyr, a Friend to the Woman of Shame": Thinking About the Law, Shame and Humiliation, 24 S. Cal. Rev. L. & Soc. Just. 1, 7 (2014) (quoting Massaro, The Meaning of Shame: Implications for Legal Reform, 3 Pyschol. Pub. Pol'y & L. 645, 648 [1997]; Svensson et al., Moral Emotions and Offending: Do Feelings of Anticipated Shame and Guilt Mediate the Effect of Socializing on Offending? 10 Eur. J. Criminology 2, 3 [2012]). And "humiliation is the emotional experience of being lowered in status, usually by another person. There is the associated sense of powerlessness." Cucolo & Perlin, Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases, 28 U. Fla. J.L. & Pub. Pol'y 291, 292 (2017). It is "'the rejection of human beings as human, that is, treating people as if they were not human beings but merely things, tools, animals, subhumans, or inferior humans.'" Bernstein, Treating Sexual Harassment with Respect, 111 Harv. L. Rev. 445, 489 (1997) (quoting Margalit, The Decent Society 121 [1996]). I cannot ignore such a punitive effect. 

The registration requirements also serve the traditional punitive aims of retribution and deterrence. As I've noted, the registration scheme offered no individual assessment of N.R.'s risk of recidivism or general danger to society. Because these requirements "punish a juvenile for his past conduct without regard to the threat—or lack thereof—that the juvenile currently poses," they are, by nature, retributive. People in Int. of T.B., 489 P.3d at 768 (citing Smith, 538 U.S. at 109 [Souter, J., concurring]); see also Thompson, 304 Kan. at 325 ("such arbitrariness is inherently retributive"). As far as deterrence, even the Supreme Court in Smith acknowledges that the registration requirements could have a natural deterrent effect. 538 U.S. at 102. This court noted the same in Myers. 260 Kan. at 695 ("Registration has an obvious deterrent effect.")

My colleagues may be comfortable to keep their heads in the sand and blindly "follow" a 2003 Supreme Court case that considers a different registration scheme and offers an outdated analysis. But when I look at the research and the arguments, I see the truth before us: lifetime registration for a 14-year-old offender is, unmistakably, punishment. My conclusion is not out of line with caselaw from other parts of the country. Across the nation, courts are creeping out of the shadow of Smith and declaring registration requirements punitive. See Does #1-5 v. Snyder, 834 F.3d 696, 705 (6th Cir. 2016) (Michigan's registration scheme punitive because it "severely restricts where people can live, work, and 'loiter,' . . . categorizes them into tiers ostensibly corresponding to present dangerousness without any individualized assessment thereof, . . . requires time-consuming and cumbersome in-person reporting" and is "supported by—at best—scant evidence that such restrictions serve the professed purpose of keeping Michigan communities safe"); People v. Betts, No. 148981, 2021 WL 3161828, at *12 (Mich. 2021) (Michigan registration requirements punitive because they publicize wealth of information, encourage social ostracism, impose state supervision, serve to deter, are retributive because they offer no individualized assessment, and are excessive because their efficacy is unclear at best); Starkey v. Oklahoma Dep't of Corr., 305 P.3d 1004, 1030 (Okla. 2013) (Oklahoma's registration scheme punitive because its "many obligations impose a severe restraint on liberty without a determination of the threat a particular registrant poses to public safety"); Doe v. Dep't of Pub. Safety & Corr. Servs., 430 Md. 535, 568, 62 A.3d 123 (2013) (registration scheme as applied to offender violated state constitution's ex post facto clause because it had "essentially the same effect . . . as . . . probation" and imposed "shaming for life"); Wallace v. State, 905 N.E.2d 371, 379-84 (Ind. 2009) (Indiana's registration scheme punitive in effect because it creates "significant affirmative obligations," and "severe stigma," encourages "vigilante justice," resembles shaming punishments, probation, or parole, sometimes requires a finding of scienter, promotes deterrence and retribution, applies to already criminal behavior, and is excessive in relation to purpose because there is no individual assessment of risk). And in a case that is notably reminiscent of the one before us, the Supreme Court of Colorado recently held that lifetime registration for a juvenile offender, who was twice adjudicated an offender for sexual offenses, was punitive and violated the prohibition against cruel and unusual punishment. People in Int. of T.B., 489 P.3d 752 (Colo. 2021). The court was particularly swayed by the reality that "lifetime sex offender registration for juveniles does not bear a rational connection to, and is excessive in relation to, [the registration scheme's] nonpunitive purposes of protecting the community and aiding law enforcement." T.B., 489 P.3d at 768. The court came to this decision after noting that juvenile offenders have a high capacity for reform. T.B., 489 P.3d at 768. 

I do not suggest that N.R.'s offense was inconsequential or should be overlooked. But I do suggest that we must follow our constitutional imperatives. N.R. is—very clearly—being punished by the Legislature's "civil scheme." The majority's refusal to acknowledge this is inexplicable. To put it plainly, in the words of my recently retired colleague, the majority's holding is "wrong-headed and utterly ridiculous. . . . [I]n the real world where citizens reside, registration is unequivocally punishment." State v. PerezMedina, 310 Kan. 525, 540-41, 448 P.3d 446 (2019) (Johnson, J., dissenting).

Consequently, I would hold that N.R.'s lifetime registration requirement violates the Ex Post Facto Clause because it was enacted and imposed after N.R. committed the actions that led to his adjudication.


State of Kansas v. Davidson, No. 119,759 (KS Sup Ct, 9/17/21) -- This ruling was issued the same day and involved an adult registrant, and is also worth noting:

ROSEN, J., dissenting: Consistent with my longstanding opinion that the Kansas offender registration requirements are punitive, I dissent from today's decision. My observations regarding the punitive aspects of KORA are once again explained, this time in greater detail, in my dissent in State v. N.R., 314 Kan. __ (No. 119,796, this day decided).

As I pointed out in my dissent in State v. Stoll, 312 Kan. 726, 737-38, 480 P.3d 158 (2021), I stood with the majority of this court and its position that the registration requirements constitute punishment in State v. Redmond, 304 Kan. 283, 371 P.3d 909 (2016), State v. Buser, 304 Kan. 181, 371 P.3d 886 (2016), Doe v. Thompson, 304 Kan. 291, 373 P.3d 750 (2016), and State v. Charles, 304 Kan. 158, 372 P.3d 1109 (2016). When this holding was overturned, I joined two of my colleagues in dissent in State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127 (2016). In State v. Shaylor, 306 Kan. 1049, 1053, 400 P.3d 177 (2017), State v. Meredith, 306 Kan. 906, 914, 399 P.3d 859 (2017), and State v. Huey, 306 Kan. 1005, 1010, 399 P.3d 211 (2017), my colleagues and I reiterated our fervent opinion that these requirements are punitive. See also State v. Perez-Medina, 310 Kan. 525, 541, 448 P.3d 446 (2019) (Johnson, J., concurring and dissenting); State v. Marinelli, 307 Kan. 768, 796, 415 P.3d 405 (2018) (Rosen, J., dissenting); State v. Rocheleau, 307 Kan. 761, 767, 415 P.3d 422 (2018) (Beier, J., dissenting). 

I opine in N.R, and emphasize it here, that it is time for this court to join the ranks of the many other courts that have rightfully recognized the punitive nature of registration requirements. Slip op. at 38 (citing Does #1-5 v. Snyder, 834 F.3d 696, 705 [6th Cir. 2016]; People v. Betts, No. 148981, 2021 WL 3161828, at *12 [Mich. 2021]; Starkey v. Oklahoma Dep't of Corr., 305 P.3d 1004 [Okla. 2013]; Doe v. Dep't of Pub. Safety & Corr. Servs., 430 Md. 535, 568, 62 A.3d 123 [2013]; Wallace v. State, 905 N.E.2d 371, 379-84 [Ind. 2009]).

Today, I dissent alone. But I stand firm in my belief that the oppressive and onerous requirements of offender registration are punitive. This case presents just another prime example. Consequently, I conclude the retroactive application of the registration requirements to Davidson violated the Ex Post Facto Clause. See Shaylor, 306 Kan. at 1053 (Beier, J., dissenting). I would reverse Davidson's conviction.

Sunday, August 1, 2021

"Victim Culture" at the Tokyo Olympics: There's nothing brave about it

I casually watch and follow the olympics. It is interesting to watch sports that I didn't even know existed (3 on 3 basketbal is a thing now? The US won their first Fencing Gold? Okay, that's cool, en garde and whatnot.)

But just about every story in the past week was about Simone Biles, a cocky gymnist who self-styles herself as a "GOAT" (Greatest of All Time for thoose unfamiliar with the term) to the point she had it put on her gymnast attire, decided to tap out after a poor performance at the games. Personally, I just see it as just another athlete who buckled under the pressure and couldn't take the prospect of losing after hyping herself up as some kind of hero. 

But i wouldn't be discussing it here if it was not for the excuses made for her shortcomings, and it is something I've been harping on for years. 

When a person achieves victim status, you achieve an exalted status. You're even more exalted if you are famous. Obviously Simone Biles is famous for being a black gymnast who won some medals, which is apparent rare in that sport, it seems. But apparently, she's also became known as an alleged victim Larry Nassar, who allegedly used his status as a sports doctor to abuse young women. Apparently this didn't stop Biles from competing in the past, but this time it is different. 

It didn't take long for those who worship at the alter of Our Lady of Perpetual Victimhood to start making excuses for Biles after she tapped out of the competition. 

Danielle Campoamor of "The Cut" writes: 

Biles traveled to Tokyo to compete after a years-long delay due to COVID-19, and not just to help her team rake in the medals: She came for fellow survivors. Earlier this spring, Biles revealed that she was dedicating her performance to sexual-assault survivors — she told Today anchor Hoda Kotb, “I feel like if there weren’t a remaining survivor in the sport, they would’ve just brushed it to the side”— as well as “Black and brown girls over the world,” as she told the New York Times in a phone interview. “At the end of the day, I am not representing USA Gymnastics.”

Biles is, in fact, the only victim of former Team USA gymnastics doctor Larry Nassar — who was sentenced to 175 years in prison after more than 140 girls and young women he had abused came forward — representing Team USA. And while Biles went on to tell Kotb that the abuse she endured caused her to sleep “so much because, for me, it was the closest thing to death without harming myself,” she still felt she had an obligation to return...

By choosing to withdraw from the overall team-final competition and the individual all-around gymnastics final to focus on her mental health and prioritize her well-being, Biles reminded the nearly one in five women and one in 75 men who are victims of sexual assault that our stories, our bodies, and our minds do not need to be sacrificed at the altar of social justice. That it’s okay if we know deep in our bones that we can’t do what is required of us; that pushing through would cause us harm; that the pain, physical or not, simply is not worth it."

If Biles didn't have her heart in it, then she should've bowed out in the first place and allowed someone else to step up. But the funny thing about victim status is that you're celebrated for your failures as much as your successes. Had Biles competed and actually earned the medal she got for being there, I'm sure Danielle Campoamor would have wrote a story about how she "overcame the abuse" to win. 

But Biles choked, as even the so-called "GOATs" do. Tom Brady lost Super Bowls. LeBron James lost at NBA Finals. And Simone Biles would have lost at the Olympics had she not taken the easy way out. She could not be truly brave and say that she quit. Admitting you can't do something takes more courage than making bullshit excuses for something that was obvious to everyone but blind loyalists and sports hero worshippers.

But Biles is being celebrated for choosing to quit, with her supporters using victim status as the reason for being brave. That sends the wrong message. 

Too many people spend time playing the victim, be it BLM, MeToo, Conservative Christians, or those whining about having to wear masks in Walmart. These folks whine about perceived diminished rights but would cheer if the rights of their opponents are diminished. Despite what right-wingers claim, what we call "cancel culture" existed long before the term existed and both sides are guilty of it. But "Cancel Culture" is just a symptom of the larger cancer that is "Victim Culture." 

A self-professed GOAT like Simone Biles should not need such pathetic excuses for failure. Own up to the fact today was not your day and move on, or next time, stay out of the way and let someone better do the job. Stop playing the victim. 

Sunday, May 30, 2021

An Obituary and Judicial Bias

 A prisoner who has been writing me for a while asked me if the obituary of his sentencing judge, which boasted of being "Known for giving long sentnces for sex offenders" or "especially tough on those convicted of domestic, sex or child abuse", is evidence of judicial bias. 

Intrigued, I asked to see the newsclip; once he sent it to me, I scanned and copied it, which is posted above. 

It is quite amazing to know that judges can be extremely biased and get away with it. In a 2012 interview with NPR, Steven Lubet, professor of law at Northwestern University, explained to listeners what constitutes Judicial Bias:

LUDDEN: So how do you define judicial bias?

LUBET: The courts define bias as favoritism or an inclination to favor one party to the litigation or one of the lawyers. So they exclude things like predisposition to have a certain view of the law. It needs to be personal, or directly in favor or against one side of the case.

LUDDEN: So you can't read bias in their whole history of decisions from the bench.

LUBET: Well, typically you can't read bias through their whole history of decisions. And another factor, which is directly relevant to the Zimmerman situation, is that it needs to come from something outside the case itself. This is called, sometimes, the extrajudicial source rule. So if a judge got mad at Mr. Zimmerman for something that happened in the course of the case, that would not be bias.

LUDDEN: Huh. Interesting. Now, the - is it true that the definition, though, or the parameters for deciding bias can vary from state to state?

LUBET: There is a general approach that most states follow, which is called - the issue is whether there is a reasonable question about the judge's impartiality. But some states have adopted different rules.

LUDDEN: And then what about state versus federal courts?

LUBET: A reasonable question about impartiality is the rule in federal courts...

LUDDEN: OK. Is there a most common list of allegations, a most common reason people might suggest this or allege this?

LUBET: Well, the most common one, of course, is some sort of financial relationship. That happens fairly often, and usually judges just step aside on, you know, of their own accord when something like that shows up. There's also the situation where a judge might have a relative - say the judge is sitting in criminal cases and has a child or a spouse who works for the public defender or the prosecutor or the probation department.

LUDDEN: OK. And then who decides? I mean, is it always the judge who recuses him- or herself? Is there someone who decides for them whether this is a legitimate concern and they should not hear that case?

LUBET: That's a pretty sensitive issue, actually, and it differs from state to state. Almost everywhere, motions to disqualify a judge go initially to the judge herself or himself. Then, in many places, many states, the motion would be referred to another judge, which seems to make a lot of sense, doesn't it?...

So the short answer is that predisposition is not considered bias; it seems only proven acts of favoritism or bias one party over another would be considered judicial bias. Personally, I disagree from a common sense standpoint. If a person has a "predisposition" against a particular group of people, the case would be judged according to the "predisposition" of the person. What is a predisposition of not the potenial for bias? i'm not a judgr or attorney so my opinion is just that, an opinion. Still, I feel this is unethical. 

Friday, May 28, 2021

NextDoor.com is STILL denying services to Registered Persons; they claim law enforcement demands it

 In 2019, I wrote an article for SOSEN.org regarding the neighborhood-focused social media platform NextDoor.com. Considering vigilantes are known to use NextDoor.com (as illustrated by the sign from a proest in Miami-Dade), there is a valid reason for concern for those unable to check the site for potential activity. 

In 2017, NextDoor justified this act of overt discrimination, stating, “We have the added challenge that the success of Nextdoor in a community depends on our members feeling comfortable sharing personal information (both required information like their real names and addresses, as well as optional profile information–including the names and ages of their kids) with their neighbors. So if members decide they no longer feel safe sharing this information on Nextdoor, even if this belief is misguided, Nextdoor can no longer be successful in that community... Nextdoor works with with thousands of police departments and public agencies, whose willingness to work with us and to recommend Nextdoor to their constituents depends in part on our commitment to keeping our members safe. So we have to be conscious of setting policies that these partners are comfortable with. And when I asked our Agency Team the question you asked us (which partner agencies feel strongly about this policy), they responded that they wouldn’t be able to single out specific ones because they are asked about this policy in every single meeting they have with potential agency partners.” 

If government agents are using NextDoor to pass along sensitive info that is typically a violation of the terms of use policy, then this is all the more reason not to exclude anyone from NextDoor.

So here we are in 2021, nearly two full years after I wrote the SOSEN article, and nothing has really changed. Below is an email sent to a Registered Person recently, who lost their account after being able to access the site for a while:

"I'm sorry to hear about the trouble you had accessing Nextdoor."

"Unfortunately, since public records indicate that you are a registered s** o*** on the ****, our policy blocks you from using Nextdoor:"


"We understand there are many people on the s** o***** registries who do not pose a threat to their neighbors. Unfortunately, we have no way to reliably distinguish between those who do and those who do not."

"In addition, Nextdoor has partnerships with more than 500 police departments, city governments, and other public agencies, and they have made clear to us that a no exceptions policy with regard to registered sex offenders is a necessary precondition for these partnerships."

"I'm sorry that we're therefore unable to grant you access to Nextdoor."

Best, Kiefer


It is intriguing to me that Nextdoor.com claims Law Enforcement agencies are requiring the company to keep Registered Persons off their platform. I'm not sure I buy that explanation. 

There was a lawsuit in the works against Nextdoor in late 2019 but with the courts running behind schedule due to COVID, who knows then that case will be resolved in court?