Sunday, June 24, 2012

Registration is not Punishment for a Crime

Most jurisdictions do not require a finding of new criminal conduct or that the targeted individual poses a current threat to public safety as a predicate to imposing the "duty" of registration. They instead rely solely upon the mere existence of a prior judgment of criminal conviction and the archaic presumption that said judgment was adjudicated in accordance with due process of law.

When presented with ex post facto challenges to ex-felon registration laws, the Supreme Court agreed with supporters that such laws were intended to be non-penal civil regulations and, therefore, did not impose additional punishment for a prior offense. See, Smith v. Doe, 538 US 84 (2003). After being assured that offenders are not required to appear and register in person, the Court focused on the stigmatizing effect of publishing registrants' data on a sex offender website, which it found acceptable because their criminal records were already publicly available at the local court house.

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 "duty" on the individual to supply law enforcement with public safety information on a regular basis, monitor that information, determine any material deviation and report any such change within a [48] hour margin of error, at their own expense, for a term of years or for life. See, e.g., NRS 179D.441. Registrants are therefore on call around a 48 hour clock, 7 days a week, 365 days a year, in perpetuity.

Registration is Valuable

Government could have assigned all data collection tasks to law enforcement or private enterprise but did not do so, the cost would have been enormous. Instead, government imposed a duty on the convicted felon to supply the desired data for free. Registrants are therefore 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 ex-felon's data from government websites and redistributed it for profit making purposes. E.g. A neighbor no longer needs to drive to the courthouse or hire a private investigator to perform a criminal background check on an individual. Law enforcement uses the data for crime prevention, detection and prosecution. The act of supplying data and the data itself are therefore of considerable economic value to government and the general public.

Registration is Compensable

Article 14 of the Forced Labour Convention of 1930 entitles workers to cash remuneration for 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 is compensable).

Subjecting another to forced labor or services by threat of harm or restraint is a Category B Felony under NRS 200.463 . We therefore assert that wages for the services here should be commensurate with the cost of those services to government if provided by law enforcement 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 [ ].” We estimate that value to exceed $250,000 per year, per individual, as the approximate cost to government of acquiring the desired data through the alternative means of hiring additional officers or private detectives to track ex-felons around a 48 hour clock.

A law that does not allow for compensation is not civil.

Ex-felons can have no civil duty without civil rights.