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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0655%3A16. Public record. Not legal advice.