Amicus Curiae Brief — Packingham v. North Carolina, 137 S. Ct. 368 (2016) (No. 15-1194)

No. 15-1194

IN THE

Supreme Court of the United States

LESTER GERARD PACKINGHAM,

Vv.

Petitioner,

STATE OF NORTH CAROLINA,

Respondent.

On Writ of Certiorari to the

Supreme Court of North Carolina

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

JEFFREY T. GREEN

Co-Chair, Supreme Court

Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

1660 L Street, N.W.

Washington, D.C. 20036

JONATHAN D. HACKER

(Counsel of Record)

DEANNA M. RICE

KIMYA SAIED*

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

jhacker@omm.com

*Admitted only in California;

supervised by principals of the

firm

Attorneys for Amicus Curiae

a ne

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .................0...02... 1

INTRODUCTION AND SUMMARY OF

FEENEY EONS SORE UNE ees ee SO I ORO 5

A. The Sentencing Process Already Serves

The Objectives Underlying Many

Collateral Consequence Laws....................66.. 7

B. Unlike The Sentencing Process, Many

Collateral Consequence Laws Impose

Restrictions Absent Any Consideration

Of The Specific Offense Or The

Individual Convicted Of It .....................0..... 10

C. Many Collateral Consequence Laws

Create Strict Liability Offenses, Which

Pass Constitutional Muster Only If

They Are Carefully Drawn To Advance

Public Safety Objectives.......................0s0000es 13

CONCLUSION ............... 1 liebsi sede seiihaliniticienscebianaiael 16

i

TABLE OF AUTHORITIES

Page(s)

CASES

Elonis v. United States,

le is SE CR iis gicacccnnnnsvandnnnnsdnemencsounens 14

Liparota v. United States,

i hs coesanieimmnoetetoonsctininins 14

Morissette v. United States,

ss seaneneuneiene 14

Pennsylvania ex rel. Sullivan v. Ashe,

a cainimanionngneesnnineions 10

Reno v. ACLU,

ee cnn snissinemntpieiaate 15

Staples v. United States,

Be ic oicintanicnnnciinnentsineieciliviieonns 14

Turner Broad. Sys. v. FCC,

ER a ae AP 15

United States v. Balint,

ELI ORD ier TCS 15

United States v. Dotterweich,

I a a emetaieie 14, 15

Williams v. New York,

I i are 10

STATUTES

a ne ein cetiadieiimnecicncen viediin Amipeiansasnschnesiiacipiniiiian 9

ke | _Ss rE emer passim

N.C. Gen. Stat. § 14-208.6(4).....ccccccccceseeeseee 12, 13, 16

iii

TABLE OF AUTHORITIES

(continued)

OTHER AUTHORITIES

ABA, National Inventory of Collateral

Consequences of Conviction,

www.abacollateralconsequences.org/

Aharonson, Ely, Determinate

Sentencing and American

Exceptionalism: The Underpinnings

and Effects of Cross-National

Differences in the Regulation of

Sentencing Discretion, 76 L. &

Contemp. Probs. 161 (2013) ...................

Chin, Gabriel, The New Civil Death:

Rethinking Punishment in the Era of

Mass Conviction, 160 U. Pa. L. Rev.

FP iiisnitedasnmmasinescimnechininksneanensetne

Daskal, Jennifer C., Pre-Crime

Restraints: The Explosion of

Targeted, Noncustodial Prevention,

99 Cornell L. Rev. 327 (2014).................

Gwin, Judge James S., Juror Sentiment

on Just Punishment: Do the Federal

Sentencing Guidelines Reflect

Community Values?, 4 Harv. L. &

i. » g Ape, Seen

Page(s)

iv

TABLE OF AUTHORITIES

(continued)

Kaiser, Joshua, Comment, Revealing

the Hidden Sentence: How to Add

Transparency, Legitimacy, and

Purpose to “Collateral” Punishment

Policy, 10 Harv. L. & Pol’y Rev. 123

Mayson, Sandra G., Collateral

Consequences and the Preventive

State, 91 No’> Dame L. Rev. 301

N.C. Court System, Punishment Grids,

http://www.nccourts.org/

Courts/CRS/Councils/spac/

Sentencing/Punishment.asp...................

NACDL, Collateral Damage: America’s

Failure to Forgive or Forget in the

War on Crime—A Roadmap to

Restore Rights and Status After

Arrest and Conviction (May 2014),

https://www.nacdl.org/reports/ ...............

Nat'l Emp’t Law Project, 65 Million

“Need Not Apply”: The Case for

Reforming Criminal Background

Checks for Employment (March

2011), http://www.nelp.org/page/-

/65_Million_Need_Not_Apply.pdf?

gael Ne SRR es eA I a ee

Page(s)

Vv

TABLE OF AUTHORITIES

(continued)

Pinard, Michael, Reflections and

Perspectives on Reentry and

Collateral Consequences, 100 J.

Crim. L. & Criminology 1213 (2010)......

Shames, Alison, Vera Institute of

Justice, Sentencing Within

Sentencing, 24 Fed. Sent’g Rep. 1

CEPR, TS Bo Pivcscdcsssececoveintesetinatuaieiscasemiueaa

Smyth, McGregor, Holistic Is Not a Bad

Word: A Criminal Defense Attorney’s

Guide to Using Invisible

Punishments as an Advocacy

Strategy, 36 U. Tol. L. Rev. 479

Sohoni, Tracy WP, The Effect of

Collateral Consequence Laws on

State Rates of Returns to Prisons

(2013), https://www.ncjrs.gov/

The Sentencing Project, A Lifetime of

Punishment: The Impact of the

Felony Drug Ban on Welfare Benefits

(2015), http://sentencingproject.org/

wp-content/uploads/2015/12/A-

Lifetime-of-Punishment.pdf ...................

Page(s)

vi

TABLE OF AUTHORITIES

(continued)

The Sentencing Project, Fact Sheet—

Trends in U.S. Corrections (2015),

http://sentencingproject.org/

doc/publications/inc_Trends_in_Corr

ections_Fact_sheet.pdf.......................

Travis, Jeremy, Invisible Punishment:

An Instrument of Social Exclusion,

in Invisible Punishment: The

Collateral Consequences of Mass

Imprisonment (Marc Mauer & Meda

Chesney-Lind eds., 2002) ............

U.S. Dep’t of Justice, Office of the

Pardon Attorney, Civil Disabilities

of Convicted Felons: A State-by-State

Survey (2d ed. 1996),

https://www.ncjrs.gov/pdffiles 1/pr/19

U.S. Sentencing Commission,

Guidelines Manual (Nov. 1, 2016),

http://www.ussc.gov/sites/

default/files/pdf/guidelines-manual/

2016/GLMFull.pdf

Page(s)

pets varctadnvenen 5

i

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

The National Association of Criminal Defense

Lawyers (““NACDL”) submits this brief as amicus cu-

riae in support of petitioner. !

INTEREST OF AMICUS CURIAE

NACDL is a nonprofit voluntary professional bar

association that works on behalf of criminal defense

attorneys to ensure justice and due process for those

accused of crime or misconduct. NACDL was found-

ed in 1958. It has a nationwide membership of many

thousands of direct members, and up to 40,000 with

affiliates. NACDL’s members include private crimi-

nal defense lawyers, public defenders, military de-

fense counsel, law professors, and judges. NACDL is

the only nationwide professional bar association for

public defenders and private criminal defense law-

yers.

NACDL is dedicated to advancing the proper, ef-

ficient, and just administration of justice. NACDL

files numerous amicus briefs each year in the U.S.

Supreme Court and other federal and state courts,

seeking to provide amicus assistance in cases that

! Pursuant to Rule 37.6, counsel for amicus curiae states

that no counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief.

No person or entity other than amicus curiae, its members, or

its counsel has made a monetary contribution to the prepara-

tion or submission of this brief. Both parties have provided

blanket consent to the filing of amicus briefs in support of ei-

ther party or neither party.

2

present issues of broad importance to criminal de-

fendants, criminal defense lawyers, and the criminal]

justice system as a whole. NACDL has a particular

interest in this case as NACDL is committed to com-

batting the proliferation of collateral consequences

that deprive convicted persons of fundamental rights

without a sound basis in law.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The provision at issue in this case, North Caroli-

na General Statute § 14-202.5, makes it a felony for

persons on the state’s sex offender registry to “ac-

cess” any social networking website, if the person

knows that individuals under the age of 18 are per-

mitted to use the site. In relevant part, the statute

defines a “social networking Web site” as one that

“flacilitates the social introduction between two or

more persons for the purpose of . . . information ex-

changes,” allows users to create “personal profiles,”

and provides users “mechanisms” for communica-

tion. N.C. Gen. Stat. § 14-202.5(b).

Petitioner J.R. Packingham was convicted under

§ 202.5 for posting a message on Facebook praising

God for the dismissal of a traffic ticket. The Su-

preme Court of North Carolina upheld petitioner’s

conviction against his constitutional challenge, hold-

ing that any burden imposed on petitioner’s First

Amendment rights was no greater than necessary to

further the government’s interest in protecting chil-

dren.

Section 202.5 is one of a growing number of fed-

eral and state laws that effectively impose criminal

punishments outside the normal, individualized

3

criminal sentencing process, categorically stripping

citizens of constitutional rights with little or no ef-

fort to tailor the restraints they mandate to the ob-

jectives they purport to serve. These punishments in

many instances would not survive due process re-

view even if they were explicitly imposed as actual

sentences on identified individuals for specific crimi-

nal conduct. As “hidden sentences”? mandated for a

broad range of conduct, with no necessary connection

to the conduct they punish, the due process violation

is all the more palpable, and all the more intolerable.

A recent NACDL report catalogs and critiques

the trend toward expanding criminal punishment

outside the sentencing process, even though the sen-

tencing process has not proved to be in any way defi-

cient in identifying punishments that “fit the crime.”

See NACDL, Collateral Damage: America’s Failure

to Forgive or Forget in the War on Crime—A

Roadmap to Restore Rights and Status After Arrest

and Conviction (May 2014). This case presents an

opportunity for the Court to clarify the constitutional

limitations on these hidden sentences—not just the

First Amendment-based limitations on the govern-

ment’s power to punish speech that make speech-

restrictive laws like § 202.5 particularly vulnerable

to constitutional challenge, but the more general

limitations that constrain the government’s power to

impose any criminal punishment.

2 See Joshua Kaiser, Comment, Revealing the Hidden Sen-

tence: How to Add Transparency, Legitimacy, and Purpose to

“Collateral” Punishment Policy, 10 Harv. L. & Pol’y Rev. 123,

126-27 (2016).

3 https://www-nacdl.org/reports/.

4

Collateral consequence laws like § 202.5 raise

multiple concerns about whether the punishments

they mandate comport with basic due process. First,

NACDL is unaware of any evidence—much less valid

findings—that the normal criminal sentencing pro-

cess cannot fully serve the governmental interests

underlying the extra-sentencing punishments im-

posed by collateral consequence laws. If sentencing

itself already serves the government’s objective, then

extra-sentence punishments will be difficult to justi-

fy as necessary and appropriate to serve the same

objectives.

Second, unlike criminal sentences, which are es-

tablished for specific crimes and usually are cali-

brated to the particular facts of the offense and the

individual convicted of it, collateral consequence

laws generally operate categorically, mandating pun-

ishments for large groups of people convicted of a

wide range of offenses involving vastly different con-

duct. For instance, some states broadly bar all per-

sons deemed “sex offenders” from entering libraries

in order to protect children, even if the offender’s

own sex-related crime involved only adults and indi-

cates no greater risk to children than any other

crime.

Third, collateral consequence laws are often strict

liability offenses—like § 202.5—that impose criminal

punishment for specified acts even when the defend-

ant intended no harm. Strict liability offenses tradi-

tionally have been limited to regulatory crimes,

where the proscription is designed to protect public

health and safety. To justify a collateral conse-

quence law on public safety grounds, the law must

be carefully drawn to advance that specific regulato-

5

ry purpose. Many such laws, including § 202.5, are

not so circumscribed and thus cannot be defended as

merely advancing a rational public welfare objective.

ARGUMENT

The vast expansion of the nation’s criminal jus-

tice system over the last 40 years has produced a

corresponding increase in the number of people with

a criminal record. Between 1980 and 2014, the

number of Americans incarcerated in state and fed-

eral prisons quintupled,4 and one recent study esti-

mates that 65 million people—roughly one in four

adults in the United States—have a criminal rec-

ord.5

For many people who have been convicted of a

crime, “the most severe and long-lasting effect of

conviction is not imprisonment or [a] fine.” Gabriel

Chin, The New Civil Death: Rethinking Punishment

in the Era of Mass Conviction, 160 U. Pa. L. Rev.

1789, 1791 (2012). Rather, it is the collateral conse-

quences that follow from the conviction and persist

even after their sentence has been served. I/d.; see

Sandra G. Mayson, Collateral Consequences and the

Preventive State, 91 Notre Dame L. Rev. 301, 315

(2015) (collateral consequences may “dwarf an of-

fender’s actual sentence in severity or significance”).

4 See The Sentencing Project, Fact Sheet—Trends in U.S.

Corrections (2015), http://sentencingproject.org/

doc/publications/inc_Trends_in_Corrections_Fact_sheet.pdf.

5 Nat'l Emp’t Law Project, 65 Million “Need Not Apply”: The

Case for Reforming Criminal Background Checks for Employ-

ment, at 27 n.2 (March 2011), http://www-nelp.org/page/-

/65_Million_Need_Not_Apply.pdf?nocdn=1.

6

There are approximately 48,000 laws and rules in

U.S. jurisdictions that restrict opportunities and

benefits based on criminal convictions. See ABA,

National Inventory of Collateral Consequences of

Conviction, (hereinafter “ABA Inventory”)

www.abacollateralconsequences.org/map/.® These

collateral consequences affect “virtually every aspect

of human endeavor, including employment and li-

censing, housing, education, public benefits, credit

and loans, immigration status, parental rights, in-

terstate travel, and even volunteer opportunities.”

NACDL Report at 12. They bar individuals with

criminal records from holding “public positions, from

teachers and law euforcement officers to school bus

drivers and garbage collectors,” and from working in

professions “that require licenses—including not on-

ly doctors and lawyers, but also barbers, bartenders,

plumbers, and beauticians.” Kaiser, supra, at 133.

They deprive people of their rights to vote, to serve

on a jury, and to keep and bear arms, and render

them ineligible to enlist in the armed forces. Id. at

138; U.S. Dep’t of Justice, Office of the Pardon At-

torney, Civil Disabilities of Convicted Felons: A

State-by-State Survey, at 6-7, 14 (2d ed. 1996),

https://www.ncjrs.gov/pdffiles1/pr/195110.pdf. And

6 Some similar consequences can be activated by a mere ar-

rest. See Tracy WP Sohoni, The Effect of Collateral Conse-

quence Laws on State Rates of Returns to Prisons, at 6 (2013),

https://www.ncjrs.gov/pdffiles1/nij/grants/247569.pdf. Others

attach even to non-criminal offenses such as disorderly conduct.

See, e.g., McGregor Smyth, Holistic Is Not a Bad Word: A Crim-

inal Defense Attorney’s Guide to Using Invisible Punishments as

an Advocacy Strategy, 36 U. Tol. L. Rev. 479, 482 (2005) (noting

that such a violation “makes a person presumptively ineligible

for New York City public housing for two years”).

7

through provisions like § 202.5, individuals convicted

of certain types of crimes—like those categorized as

“sex offenses”—-may find themselves subject to laws

broadly restricting their freedom of movement, resi-

dency, and employment, Jennifer C. Daskal, Pre-

Crime Restraints: The Explosion of Targeted, Non-

custodial Prevention, 99 Cornell L. Rev. 327, 362

(2014), and denying them lawful access to everyday

websites like Amazon, Google, and The New York

Times, Pet. App. 33a, 51a.

These collateral consequences can have a pro-

found impact on the lives of those to whom they ap-

ply. A single individual with a criminal conviction

may be subject to more than 2,000 such restrictions

upon reentry. Kaiser, supra, at 157. And while

some collateral consequences are temporary, most

are not. See id. at 148. The stakes are extraordinar-

ily high for the millions of individuals who are sub-

ject to these post-conviction restraints, and this

Court’s guidance is needed to ensure that such pro-

visions do not exceed constitutional bounds.

A. The Sentencing Process Already Serves

The Objectives Underlying Many Collat-

eral Consequence Laws

Although collateral consequences “technically re-

side outside of the criminal] justice system,” Michael

Pinard, Reflections and Perspectives on Reentry and

Collateral Consequences, 100 J. Crim. L. & Crimi-

nology 1213, 1218 (2010), many are plainly punitive

in character, see Chin, supra, at 1830. “Taking away

someone’s right to vote because they were convicted

of a crime,” for example, “does not serve any non-

punitive, regulatory purpose, such as making society

8

safer or protecting against voter fraud.”. NACDL

Report at 34; see also id. at 14 (observing that many

common collateral consequences, including the loss

of voting and other civil and judicial rights, “serve no

public safety purpose at all”). Provisions denying

those convicted of drug offenses access to public ben-

efits like food stamp programs likewise appear to be

motivated primarily (or entirely) by a desire to pun-

ish that group. See The Sentencing Project, A Life-

time of Punishment: The Impact of the Felony Drug

Ban on Welfare Benefits, at 1 (2015).7 Such provi-

sions, in effect, amount to “invisible ingredients in

the legislative menu of criminal sanctions.” Jeremy

Travis, Invisible Punishment: An Instrument of So-

cial Exclusion, in Invisible Punishment: The Collat-

eral Consequences of Mass Imprisonment 15, 17

(Marc Mauer & Meda Chesney-Lind eds., 2002).

Punishing wrongdoing is of course an important

governmental objective, but fulfilling that objective

is generally the office of the criminal sentencing pro-

cess. The sentence imposed for a particular individ-

ual and offense reflects a judgment about what re-

strictions and penalties are necessary to achieve sen-

tencing’s traditional purposes: deterrence, incapaci-

tation, rehabilitation, and retribution. See Judge

James S. Gwin, Juror Sentiment on Just Punish-

ment: Do the Federal Sentencing Guidelines Reflect

Community Values?, 4 Harv. L. & Pol’y Rev. 173,

176-77 (2010). Indeed, in the federal system, judges

are expressly instructed to “impose a sentence suffi-

cient, but not greater than necessary” to achieve the

7 http://sentencingproject.org/wp-content/uploads/2016/12/

A-Lifetime-of-Punishment. pdf.

9

aims of sentencing: “to reflect the seriousness of the

offense, to promote respect for the law, and to pro-

vide just punishment for the offense,” “to afford ade-

quate deterrence to criminal conduct,” “to protect the

public from further crimes of the defendant,” and “to

provide the defendant with needed educational or

vocational training, medical care, or other correc-

tional treatment in the most effective manner.” 18

U.S.C. § 3553(a). The same principle underlies sen-

tencing at the state level. See Alison Shames, Vera

Institute of Justice, Sentencing Within Sentencing,

24 Fed. Sent’g Rep. 1, 1 (Oct. 2011) (observing that

“in most states, the imposition of a sentence is a reg-

ulated process,” and—“in all cases—sentence severi-

ty is reviewable by a higher court, to ensure that a

judge does not impose a penalty that is more than

necessary to achieve the accepted goals”).

Given that the criminal sentencing process exists

solely to serve society's interest in punishing wrong-

doing, it should be exceedingly difficult to justify a

regime of extra-sentence punishments absent sub-

stantial evidence that the sentencing process is defi-

cient in some material respect. At the very least, the

substantial overlap between sentencing objectives

and the purposes animating collateral consequence

laws should prompt close scrutiny of post-sentence

restrictions, including careful evaluation of whether

and how they serve any distinct interest not already

fully vindicated in the sentencing process.

10

B. Unlike The Sentencing Process, Many

Collateral Consequence Laws Impose Re-

strictions Absent Any Consideration Of

The Specific Offense Or The Individual

Convicted Of It

While many collateral consequence laws share

sentencing’s aims, they are typically far less precise

than the traditional sentencing process in how they

go about advancing those goals.

Not only does the criminal sentencing process

generally serve society interest in punishing

wrongdoing (as just discussed), it does so by identify-

ing a punishment that is tailored to the particular

offense and offender involved. The criminal sentenc-

ing process “is designed to impose punishment that

is proportionate to the offense.” Chin, supra, at

1830. It is a “bedrock principle of our sentencing ju-

risprudence .. . that the severity of the criminal

sanction should be limited by the seriousness of the

offense and relevant attributes of the offender.”

Travis, supra, at 35. Generally speaking, the more

serious and blameworthy a defendant’s conduct, the

more severe the penalty imposed. And it is not

enough that the punishment fit the crime—it also

“should fit the offender.” Williams v. New York, 337

U.S. 241, 247 (1949); see Pennsylvania ex rel. Sulli-

van v. Ashe, 302 U.S. 51, 55 (1937) (“For the deter-

mination of sentences, justice generally requires

consideration of more than the particular acts by

which the crime was committed and that there be

taken into account the circumstances of the offense

together with the character and propensities of the

offender.”). To ensure that it does, the sentencing

process is largely individualized, taking into account

ll

the particular facts and circumstances of the crime

and the particular attributes of the defendant.

To be sure, over the last several decades, there

has been a shift at both the state and federal levels

toward structured sentencing schemes aimed at

normalizing sentences across defendants. See Ely

Aharonson, Determinate Sentencing and American

Exceptionalism: The Underpinnings and Effects of

Cross-National Differences in the Regulation of Sen-

tencing Discretion, 76 L. & Contemp. Probs. 161, 162

(2013). But even where the range of available sen-

tences is constrained by statute or guidelines, ordi-

nary criminal sentences are still at a minimum at-

tached to specific crimes that share common attrib-

utes. And sentencing tables, “with charge severity

on one axis and prior criminal record on the other,”

are “concrete expressions’ of the principle that pun-

ishment should be tailored to both the offense and

the offender. Travis, supra, at 35.8

In stark contrast to the crime- and offender-

specific approach that prevails in the ordinary crim-

inal sentencing context, collateral consequence laws

often deprive people with criminal records of funda-

mental rights absent any individualized assessment

of their conduct or even the general characteristics of

the offense committed. Such laws place categorical

restrictions on individuals convicted of a diverse ar-

8 Such tables are used both in federal sentencing, see U.S.

Sentencing Commission, Guidelines Manual, Ch. 5, Pt. A, at

420 (Nov. 1, 2016), http://www.ussc.gov/sites/default/files/pdf/

guidelines-manual/2016/GLMFull. pdf, and in many states, in-

cluding North Carolina, see N.C. Court System, Punishment

Grids, http://www.nccourts.org/Courts/CRS/Councils/spac/

Sentencing/Punishment.asp.

12

ray of offenses, making no effort to match the pun-

ishment to the crime.

For example, many collateral consequences are

triggered whenever someone has been convicted of a

“felony,” regardless of whether the conviction was for

armed robbery, arson, or tax evasion. Such provi-

sions include laws depriving millions of people of

their rights to vote and possess a firearm. NACDL

Report at 34-35; see also Travis, supra, at 35 (“A fel-

on convicted of the lowest felony loses his right to

vote, as does a serial murderer.”). Other restrictions

apply to those convicted of “crimes involving moral

turpitude” or “crimes of violence,” categories that

likewise encompass a diverse range of conduct, from

fraud to rape and extortion to murder. See ABA In-

ventory (database including numerous such provi-

sions).

Even restrictions like § 202.5 that apply only to a

group of individuals convicted of the same general

type of offense (e.g., “sex offenses”) still reach an as-

sortment of underlying offenses involving widely

varied facts. See N.C. Gen. Stat. § 14-208.6(4). In

Oklahoma, for example, registered sex offenders

range from persons convicted of violent sexual as-

saults to those convicted of indecent exposure, but

regardless of the crime committed, all persons

deemed “sex offenders” are “prohibited from living

with a minor child; living within 2000 feet of any

school, childcare center, playground, or park; loiter-

ing within 500 feet of any school, childcare center, or

park; working in any capacity with children; engag-

ing in ice cream truck vending; or living in a resi-

dence with another convicted sex offender.” Daskal,

supra, at 349-50 (footnotes omitted); see also Travis,

13

supra, at 35 (“A teenager convicted of statutory rape

for consensual intercourse with his underage girl-

friend, as well as a repeated child molester, may be

subject to life-time registration.”).? Such broad, cat-

egorical restrictions are the norm for these types of

laws.

The expansive, often indiscriminate reach of col-

lateral consequences represents an abandonment of

the fundamental principle underlying the sentencing

process—-that punishment should be calibrated to

match the characteristics of the crime.

C. Many Collateral Consequence Laws Cre-

ate Strict Liability Offenses, Which Pass

Constitutional Muster Only If They Are

Carefully Drawn To Advance Public

Safety Objectives

The extraordinary breadth of many collateral

consequence laws also raises constitutional concerns

because such laws are typically strict liability offens-

es that impose criminal punishment for specified

acts even when the defendant intended no harm.

Section 202.5, for example, criminalizes merely ac-

cessing a social networking site—broadly defined—

without any consideration of whether the person

who violated the restriction intended criminal activi-

® If such a teenager later moved to North Carolina, he

would be subje -t to both registration and § 202.5’s restrictions,

as North Carolina’s registration requirements extend to indi-

viduals convicted of a registrable offense elsewhere, even if the

same offense would not trigger registration had it been commit-

ted in North Carolina, see N.C. Gen. Stat. § 14-208.6(4), and

§ 202.5 broadly applies to everyone subject to registration un-

der North Carolina law, see id. § 14-202.5(a).

14

ty. Under that law, an otherwise innocent exercise

of free expression and religious liberty on Facebook

becomes the basis for a Class I felony. See N.C. Gen.

Stat. § 14-202.5(e).

Strict liability offenses are not favored in Ameri-

can law. Ordinarily, “a guilty mind is a necessary

element in the indictment and proof of every crime.”

Elonis v. United States, 135 S. Ct. 2001, 2009 (2015)

(quotation omitted); see Morissette v. United States,

342 U.S. 246, 250-51 (1952). That principle is so im-

portant that even where a criminal statute does not

expressly include an intent element, this Court has

applied a “background assumption” that the legisla-

ture did not intend to dispense with it if “to interpret

the statute [without an intent requirement] would be

to criminalize a broad range of apparently innocent

conduct.” Liparota v. United States, 471 U.S. 419,

426 (1985).

The Court has recognized a narrow exception to

the general mens rea rule for regulatory crimes,

where the proscription is designed to protect public

health and safety. See Morissette, 342 U.S. at 254;

see also Staples v. United States, 511 U.S. 600, 607

(1994) (“Typicelly, our cases recognizing such [strict-

liability public welfare] offenses involve statutes that

regulate potentially harmful or injurious items.”).

“In the interest of the larger good,” such provisions

“put[] the burden of acting at hazard upon a person

otherwise innocent but standing in responsible rela-

tion to a public danger.” United States v. Dotter-

weich, 320 U.S. 277, 280-81 (1943); see United States

v. Balint, 258 U.S. 250, 252 (1922).

15

It is not enough, however, for the government

simply to cite public safety as the justification for a

post-sentence deprivation of constitutional rights.

The government must do more than merely identify

an interest that is “important in the abstract.”

Turner Broadcasting Sys. v. FCC, 512 U.S. 622, 664

(1994). It must show that restrictions on constitu-

tional rights “in fact alleviate” the cited harm “in a

direct and material way” and are appropriately tai-

lored to advance the objectives they purport to serve.

Id. “(T]he mere fact that a statutory regulation of

speech was enacted for the important purpose of pro-

tecting children from exposure to sexually explicit

material does not foreclose inquiry into its validi-

ty.... [T)hat inquiry embodies an overarching

commitment to make sure that Congress has de-

signed its statute to accomplish its purpose without

imposing an unnecessarily great restriction on

speech.” Reno v. ACLU, 521 U.S. 844, 875-76 (1997)

(quotation omitted). Thus, even collateral conse-

quence laws that advance legitimate public welfare

interests must be drawn with an eye toward that

purpose.

Section 202.5 and many similar collateral conse-

quence laws, however, impose restrictions far more

expansive than reasonably necessary to advance any

public safety objective. As the facts of this case well

demonstrate, § 202.5 reaches conduct that presents

no threat to public safety and has nothing to do with

the state’s valid interest in protecting minors. That

provision applies to individuals convicted of an array

of underlying offenses, many of which do not involve

any contact with minors. See N.C. Gen. Stat. § 14-

208.6(4). And it is far from clear that application of

16

§ 202.5 to individuals convicted of crimes involving

only adult victims does anything to achieve the law’s

objective of protecting children.

Section 202.5 is by no means unusual in its over-

reach; many collateral consequence laws are likewise

far too expansive to be fully justified on public wel-

fare grounds. B!anket firearm bans applicable to

anyone convicted of a felony (which exist under both

federal and state law) illustrate the point. While

some circumstances may well justify certain re-

strictions on firearm possession, “there is no evi-

dence that prohibiting an individual with a fraud

conviction from possessing a firearm advances public

safety.” NACDL Report at 35. Similarly, while ban-

ning some people who have been convicted of certain

types of sex offenses from public housing may ad-

vance legitimate public safety goals, under current

law “those convicted of public urination in California

are barred for life from public housing,” even while

individuals “convicted of more serious violent offens-

es are not.” NACDL Report at 33. Such results be-

tray the mismatch between the public welfare aims

many collateral consequence laws purport to ad-

vance and their actual effects.

The salutary objective of protecting public wel-

fare is not a free license for government restriction of

constitutional rights and liberties. The sweeping

scope of many collateral consequence laws confirms

the need for meaningful judicial checks to ensure

that such provisions do not exceed constitutional

limits.

CONCLUSION

The judgment below should be reversed.

17

Respectfully submitted,

JEFFREY T. GREEN JONATHAN D. HACKER

Co-Chair, Supreme Court (Counsel of Record)

Amicus Committee DEANNA M. RICE

NATIONAL ASSOCIATION OF KIMYA SAIED*

CRIMINAL DEFENSE O’MELVENY & MYERS LLP

LAWYERS 1625 Eye Street, N.W.

1660 L Street, N.W. Washington, D.C. 20006

Washington, D.C. 20036 (202) 383-5300

jhacker@omm.com

*Admitted only in California; super-

vised by principals of the firm

Attorneys for Amicus Curiae

December 22, 2016