Sunday, June 24, 2012

Registration is not Punishment for a Crime

Ex-felon registration laws most often impact those receiving lesser access to justice in the first instance --- frequently through an abuse of the law or legal process --- which could be fairly denominated Human Trafficking by another name.

The re-socialization of a one into an ex-felon begins by detaining the individual in a cage, often without timely notice or probable cause, e.g. NRS 171.206,  advising the individual he will likely never get out unless he participates in a plea bargaining process which collaterally strips him of civil and political rights without jury trial or confession of factual guilt. E.g. North Carolina v. Alford. Following release, the socially re-branded individual is informed he will be put back in a cage or killed unless he complies with ex-felon registration laws, for the benefit of others. NRS 179C.010 et seq.

When presented with an ex post facto challenge to registration laws, the Supreme Court agreed with supporters that they were civil public safety regulations that did not impose punishment for a prior offense. Smith v. Doe, 538 US 84 (2003). After being assured the individuals in Smith were not required to appear and register in person, the Court focussed on the stigmatizing effect of publishing their personal and criminal history information on a website, which it found acceptable because the ostensible offenders' criminal history was already available to the public at the local court house.

The court has yet to consider the mental, physical or economic burden of registration upon the targeted individual, the value of that conscripted public service to government or whether forcing compliance asserts a limited right of ownership over a sub-class, as though a property right of the state, defining a condition of servitude.

Registration is Laborous

Labor is defined as work of any type, including mental exertion. Black's Law, 7th Edition.

Ex-felon registration laws impose a positive "duty" on targeted individuals to supply government with data for compilation in government data banks, to monitor that data, determine any material change and timely report any change to keep the data current within a [48] hour margin of error, at the individuals own expense, for a term of years or for life. See, e.g NRS 179C.010 et seq.

The determination who must register for life and who Must register for a fixed term of years plainly found a subclass worthy of burdens that others need not endure, without safeguards of judicial trial. That was a Bill of Attainder prohibited by Art. 1, Sec. 9 of the United States Constitution (pains and penalties).

Many registrants are unemployed and homeless, subject to filth, disease and vigilantism. Some have been murdered. Compensation would foster compliance with registration laws and off-set these inhumane conditions of service.

Registration is Valuable

Government could have assigned all data collection tasks to virtuous law enforcement personnel or enlisted the services of private enterprise but did not do so, the cost would have been enormous. Instead, government imposed a duty of self-reporting on the notoriously untrustworthy ex-felon to supply critical public safety data for free, at his own expense. That is exploitation. No doubt intentional. 

Registrants are used to acquire and maintain data. They are employees as defined by 5 USC 8101(1)(B):

"an individual rendering personal service to the United States similar to the service of a civil officer or employee of the United States, without pay or for nominal pay, when a statute authorizes the acceptance or use of the service, or authorizes payment of travel or other expenses of the individual"

Private businesses scrape the supplied data from government websites and redistribute that data for profit making purposes. E.g. Community members no longer must travel to the courthouse or fund private background investigations. Law enforcement uses the data for crime prevention, detection and prosecution. Registration clearly has substantial economic value.

Registration is Compensable

Article 14 of the Forced Labour Convention of 1930 entitles workers to cash remuneration for all services they are compelled to perform:

"1. [ ] forced or compulsory labour of all kinds shall be remunerated in cash at rates not less than those prevailing for similar kinds of work either in the district in which the labour is employed or in the district from which the labour is recruited, whichever may be the higher." See also, United States v. Russell, 80 US 623, 630 (1871) (conscription of goods and services).

Subjecting another to forced labor or services by threat of restraint is a felony under NRS 200.463 and 18 USC 1589. We believe wages for the subject civil service here should be commensurate with the cost of those services to government if provided by law enforcement personnel or private enterprise. This assertion is consistent with 18 USC 1593(3) which adjusts compensation to victim's of forced labor at “[ ] the [ ] value to the defendant of the victim's services or labor [ ].”

Given that it would require at least 3 agents salaried at $70,000  to track 1 individual around a [48] hour clock and report back the necessary data, we estimate the value of the subject civil data service to exceed $200,000 per year, per individual, as the approximate cost to government of acquiring the necessary data at its own expense.

Refusing payment for accepted services is a crime and a tort. Uncivilized. Witnesses and jurors receive compensation, although not nearly enough. Military conscription is likewise under compensated. The idea ex-felons have a civic duty to perform free services while lacking civil and political rights defies reason and International Covenant on Civil and Political Rights. Registration laws were intended to foster ostracism, anti-community. Registration laws target a dis-favored subclass and, as such, cannot qualify as a normal civic duty.

We suggest that the labelling of registration laws as "civil" was simply a lie to subvert the Bill of Rights by those sworn to protect it, i.e., the ex post facto clause.

The World Bank, (pdf download) in line with the Palermo Protocol, classifies all forms of non-consensual exploitation as human trafficking.

Lock em up!