Thursday, February 18, 2016

The Death of Justice Scalia Intensifies Extreme Rhetoric

In nearly 3 decades on the Supreme Court, Scalia became famous for his dissents. This sparked an ongoing debate over how the courts should interpret the Constitution. Scalia took a hard stand against issues such as abortion, gay rights, affirmative action and religion.

"He was a fundamentalist in both his faith and his constitutional interpretation"
- former Solicitor General, Paul Clement

Scalia naturally sparked many heated debates, often resulting in extreme rhetoric that became counterproductive for both sides. Despite public opinion, Scalia stood consistent in his beliefs and his interpretation of the Constitution. No matter what was happening in the nation, Scalia was always clear about where he stood.

As a Nation, we have enough on our plate with the election coming up. Scalia’s death will only intensify all the extreme rhetoric we've been hearing since last summer. The President is going to nominate his replacement but the Republican majority U.S. Senate has to "advise and consent".  The Senate majority is going to want to stall until after the election and then have the new President withdraw the nomination of whomever Obama nominates and submit another nomination.

"Advise and consent" is the language in the Constitution referring to the Senate's role when the President nominates someone to the U.S. Supreme Court.

Scalia was a good man and a brilliant justice but he was also very, very conservative. He believed the Constitution should be interpreted through the meaning of the language used when it was written and modern usage should play no role. He was always "tough on crime" but very collegial.  Scalia’s unlikely friendship with Justice Ruth Bader Ginsburg was a great example. Despite their standing as the intellectual giants of the left and right, Ginsburg and Scalia had formed an uncommon bond on a court where close friendships outside of chambers is rare.

"In an era of endlessly raging culture wars,
tolerance has become something of a lost art. Instead,
we dig in our heels and declare sides."

With the passing of Justice Scalia, the upcoming elections will now be more polarized than they already are. Voters are not just fighting for a president but also for control of the U.S. Senate and Supreme Court. Democrats have the best chance in years to retake the chamber, because 24 Republican incumbents are up for reelection. In an era of congressional gridlock, Democrats believe that an Obama nominee could rebalance the court. However, the Republicans are ready to fight to the death to protect the conservative principles which they believe this Country is founded upon. With the GOP's pledge to thwart any Obama nominee, the Supreme Court will become one of the major issues in this presidential race. Hopefully, both Democrats and Republicans will remember the example of the collegiality set by Justice Scalia and Justice Ginsburg and temper their differences with respect for one another. For that is the lubricant which permits the workings of democracy to operate smoothly.

Andrew Lloyd is a member of the bar of the US Supreme Court, the California Federal District Court and the California State Bar. He is currently practicing criminal defense law in Orange County Califiornia.

Tuesday, January 12, 2016

Sex Offender Certificate of Rehabilitation

A California Court of Appeal issued a decision this week that expands eligibility for registrants to apply for a certificate of rehabilitation. The decision, People v. Tirey, states that a registrant who was convicted of PC 288(a) and who completed parole 13 years ago is eligible to apply for a certificate.
“This is an important decision for many registrants,” stated attorney and CA RSOL vice president Chance Oberstein. “It will significantly expand the number of registrants who can apply for a certificate of rehabilitation.”

In this case, the appellate court clarified that it was not making a decision whether Tirey would obtain a certificate. Instead, that decision is to be made by a trial court.

According to the Court, equal protection principles were violated when Tirey was declared ineligible to apply for a certificate. These principles have the possibility of being applied to convictions for similar sex offenses such as PC 288 and 288.5. In its decision, the Court rejected all arguments offered by the Attorney General who had requested a rehearing of the original case.

“A certificate of rehabilitation currently is the only realistic method for registered citizens to be removed from the sex offender registry,” stated Oberstein.

The decision to grant a certificate of rehabilitation is a discretionary decision by a state judge who faces re-election. In order to maximize the possibility of obtaining a certificate, registrants must provide the court with a psychological evaluation as well as letters of support.

Judge Thompson disagreed with the court’s ruling and in his dissent stated that the court’s decision “will allow thousands of serious sex offenders to escape their lifetime parole and sex offender registration obligations.”     ..Source.. by CA-RSOL

Judge Thompson's opinion is indicative of public opinion. Although judges are supposed to be more informed, the fact of the matter is they are not informed about the psychological processes and statistics behind sex offenders.

The California sex offender’s registry was enacted in 1947 and made it retroactive to 1944. We have been registering people for 72 years, which is longer than any other state. The media coverage of these registered sex offender's has created additional unnecessary fear from both the public and the judicial system. The idea of what a sex offender is like is shaped by the media. The problem with this opinion or the dissent in this opinion is that it reflects the way judges feel. Judges who face election adopt this mindset when reading through a psychological evaluation and the effort an offender has made to rehabilitate themselves.

California Court of Appeal, certificate of rehabilitation,  
Sex crimes, California criminal law, sex offender registry, Orange county criminal defense,
Attorney Andrew Lloyd