Categorical Exclusion on the Way Out? / Supreme Court Update

Supreme Court Update:
Cert granted in Kisor v. Wilkie.
Question presented: Should the Supreme Court overrule Auer v. Robbins & Bowles v. Seminole Rock & Sand Co., which directs courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation?

Opinion issued in United States v. Stitts; United States v. Sims
Held: (1) The term “burglary” in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation. The decision of the Sixth Circuit Court of Appeals is reversed.

(2) Sims case is vacated and remanded to the Eight Circuit Court of Appeals to determine if the Arkansas burglary statute is overbroad.

Recently the Arizona Supreme Court struck down a ban on those accused of statutory rape from being given bail, going so far as to find the provision of the state constitution in conflict with the federal constitution. Though facing heavy criticism for doing so, the Court should be applauded for protecting the individual against the mob. And it did so in a way that could have much broader impact than just bail.

As most of the fear mongering over the case revolves around misrepresenting what the Court held, we’ll start with what was actually done. First, the case ONLY addresses sexual conduct with minors under 15, not all sex crimes; so, this only fully applies to those accused of statutory rape of a pubescent minor. Finding that such offenders were not the “worst sexual predators” that the lawmakers claimed to target, the Court found the state’s evidence inapplicable to them and unconvincing on its merits. While there was no bar on denying any individual bail, that decision had to the defendant’s individual characteristics, not the nature of his crime. All the doom and gloom is hysterics, not fact, the case is quite limited.

That said, the Court noted that, even under the State’s numbers, there was no reason to believe the “worst of the worst”, convicted rapists, would reoffend on bail. Using the highest number provided, 5.6% of rapists commit ANY sex offense within three years of release from prison. Of those released on bail, only 3% committed crimes at all, few being sex offenses. This provided no real evidence to deny bail categorically. The Court went further, stating that McKune v. Lile was incorrectly decided, as the study in that case showed 7.7%, not 80% recidivism rates.

Though this case is not the first to raise an eyebrow about the true statistics of sex offenders, it is the first major court to hold that categorical bans on certain groups of criminals cannot be based on faulty numbers. What is common sense to average people is groundbreaking for the judiciary-a person may not be detained on untrue assumptions.

Yet, this assumption is the underlying basis of every law regarding sex offenders, such as the registry, residential restrictions, public safety factors and so forth. So, what, was decided in this case could just as easily be applied to any of the multitude of other categorical denials imposed by the law. Depriving someone of bail and incarcerating them is not different in any meaningful way than denying someone freedom for violating the registry laws. Categorically denying bail is the same error as categorically denying parole, probation, release from supervision, etc.

Even a small step in the right direction is something. It can be used as basis to doll back more illegitimate rules. It is no magic, immediate reversal. But, just as it did not get built up overnight, the wall will not be torn down overnight either. This is a powerful tool to speed up that process though.

#BackSoSoon is a blog dedicated to helping sex offenders successfully reintegrate back into society. Our Corrlinks address is and our website is for all those wishing to read our articles on the outside.

Leave a Reply