Tuesday, December 30, 2008
The case of Gonzales v. Duncan, No. 06-56523 (9th Cir. Dec. 30, 2008) (available here).
Cecilio Gonzalez was convicted by a jury of failing to update his annual sex offender registration within five working days of his birthday, in violation of California Penal Code § 290(a)(1)(D). Because of his prior criminal convictions, he received a sentence of 28 years to life imprisonment under California's “Three Strikes” law. On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.
The California courts have characterized the state’s registration requirement as a regulatory offense, a “most technical violation” that “by itself, pose[s] no danger to society.” People v. Cluff, 105 Cal. Rptr. 2d 80, 81, 86 (Cal. Ct. App. 2001). In a case materially indistinguishable from this one, the California Court of Appeal concluded that a Three Strikes sentence of 25 years to life imprisonment for violating the registration requirement was “grossly disproportionate to the offense” and violated the Eighth Amendment. People v. Carmony, 26 Cal. Rptr. 3d 365, 368-69 (Cal. Ct. App. 2005). Although our standard of review is more deferential, we too conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). We therefore reverse the district court’s denial of Gonzalez’s petition and remand with instructions to grant the petition for a writ of habeas corpus.
The fact that a federal circuit court has found a non-capital prison sentence unconstitutionally excessive is big new in itself.
BOISE, Idaho (AP) - The Idaho Court of Appeals has overturned a state court order banning a convicted sex offender from being within 100 feet of any minor, including his two young children.
The appellate court ruled last week the no-contact order imposed on Brian C. Cobler went too far, violating his parental rights. The no-contact order included letters, phones and e-mails.
Cobler was arrested in 2006 and convicted of having a three-month sexual relationship with a 17-year-old girl. He was sentenced to serve a minimum of 2 years in prison.
In his decision earlier this month, Idaho Court of Appeals Chief Judge Sergio Gutierrez says denying Cobler his rights as a parent "oversteps the authority of the state."
A law is set to take effect in Georgia Thursday that requires sex offenders to hand over Internet passwords, screen names and e-mail addresses.
Georgia joins a small band of states complying with guidelines in a 2006 federal law requiring authorities to track Internet addresses of sex offenders. But the state is among the first to take the extra step of forcing its 16,000 offenders to turn in their passwords as well.
A federal judge ruled in September that a similar law in Utah violated the privacy rights of an offender who challenged it. That ruling applied to only one offender who had a military conviction
on sex offenses but was never in Utah's court or prison system.
No one in Georgia has challenged the law yet. But critics say it threatens the privacy of sex offenders and places an additional burden on law enforcement officials.
Read this bill here (as passed version): http://www.legis.state.ga.us/legis/2007_08/sum/sb474.htm
This means, of course, that the state can now read the private emails of citizens who are supposed to be living legally in freedom after they serve their punishment for a previous crime. It also means that the state can access all of these citizens' online financial and business activity! This is yet another inane and clearly unconstitutional law which must be defeated !
Saturday, December 27, 2008
Texas Voices, an organization fighting for fair sex offender law reform, has found an ally of sorts at the Texas capitol: a Dallas lawmaker who wants to relax the state's tough sex offender registration laws.
"Some offenses don't rise to the level" of needing registration, Rep. Roberto Alonzo, D-Dallas, said recently.
He's filed a bill, http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=HB190, that would give certain first-time sex offenders the ability to petition the courts to shorter their registration periods, or to have their registration completely waived . The vast majority of sex offenders in Texas must register on the state's Department of Public Safety website for life.
The bill is being hailed by Mary Sue Molnar, the mother of a convicted sex offender who is one of Texas Voices key organizers. "I have to tip my hat to him," Molnar said of Alonzo. "It's a very good start."
Molnar and her group have spent months meeting with lawmakers in an effort to find someone willing to carry a bill that would roll back some of the state's toughest sex offender laws.
The group never met with Alonzo. Alonzo said he filed his bill at the request of a Dallas judge who was fed up with low-risk offenders brought in on technical violations tying up the court's docket.
Texas Voices was founded earlier this year by several registered sex offenders and their family members who were incensed by the state's lifetime registration laws. The group now has hundreds of members, and tailors its message at those who committed non-violent offenses when they were in their late teens or early 20s with compliant victims a few years younger than themselves. The Houston Chronicle and San Antonio Express-News ran a recent article about the group's efforts.
Tuesday, December 23, 2008
An effort to create uniform nationwide standards for how to keep track of sex offenders has stalled largely because states being asked to comply with the new federal guidelines can't or won't pay the costs.
After Texas legislators convene in January, they'll have to decide whether to comply with a new federal law that came without funding, or to stick with existing state statutes. Chances are good the Lone Star State won't be alone if it fails to meet a July 2009 deadline; so far, not a single state has complied with the Adam Walsh Child Protection and Safety Act.
California officials estimated compliance would cost the state more than $21 million, according to Allison Taylor, executive director of the Texas Council on Sex Offender Treatment. The as-yet-undetermined price tag for Texas could also run into the millions.
If states don't comply, they'll lose 10 percent of some federal grant money. In Texas, not complying could cost about $700,000, while complying will cost millions more.
That may make the decision simple, said Sen. Florence Shapiro, R-Plano, long an advocate of strong sex offender laws.
"Seven hundred thousand on the one hand vs. $20 million on the other hand? It's pretty easy to resolve," she said. "Our laws are strong, and we don't need to comply." The implementation cost may be the biggest obstacle, but it is far from the only one.
She agreed that financing is a "really large issue" but said "there is some hysteria out there, unnecessary hysteria."
In addition, some states disagree with the federal provisions for registration of juvenile offenders, retroactive registration and rating offender risk levels.
Another sticking point for Ms. Shapiro is how far back the federal law reaches in requiring registration. Texas requires registration for sex offenses dating to the 1970s. But she is troubled by the requirement that an offender who completed his sentence and then reoffends with a nonsex crime could be forced to register.
Finally, Ms. Taylor said the federal requirement that offenders be assigned a risk level based on a conviction instead of an evaluation may be a deal breaker for Texas.
In the last year or so, Texas, like many states, has moved to "dynamic risk assessments" to determine the danger to the public, she said, but "if you are basing registration on risk level to the community, you would not be in compliance."
The federal government has provided for two one-year extensions, meaning final compliance wouldn't be required until 2011.
"We want to be tough on crime," he said, "but we don't want to be absurd."
Monday, December 22, 2008
The Home Office's attempts to keep tabs on convicted sex offenders have been dealt a blow at London's High Court after a human rights challenge by an 11-year-old Wigan boy. Under current legislation, anyone convicted of a sexual offense and sentenced to more than 30 months in prison must remain on the Sex Offenders Register for life. It means they have to notify the authorities of any change of address or name, and any foreign travel they undertake.
But today Lord Justice Latham, sitting with Mr Justice Underhill and Mr Justice Flaux, said the fact there was no mechanism for reviewing such registration under the 2003 Sexual Offences Act was "incompatible" with the European Convention on Human Rights.
The judge asked whether it was right an offender who "can clearly demonstrate that he presents no risk, or measurable risk of re-offending" should be "precluded from obtaining a review of the notification requirements?"
He said: "I find it difficult to see how it could be justifiable under the Human Rights Act to deny a person who believes himself to be in that position an opportunity to seek to establish it."
He said there will now have to be a debate about what an offender should have to prove in order to be discharged from notification requirements, and when he should be allowed to make an application to the Home Office.
The successful judicial review challenge – in which lawyers argued that the Article 8 right to privacy was being violated and lifetime registration without review was disproportionate – centred around two cases:
The boy was just 11 when he raped another youngster. He was handed a 30-month youth custody sentence at Liverpool Crown Court in October 2005 for two counts of rape and a number of other serious offenses.
The restrictions on foreign travel on the Sex Offenders Register meant the boy was unable to go on a family holiday to Spain last year and there were also concerns that the presence of his name on the Sex Offenders Register would interfere with his ambitions to be a Rugby League player.
Angus Aubrey Thompson, from Newcastle, was jailed for five years in 1996 for two indecent assaults on a girl and other offences of assault occasioning actual bodily harm. He was released on licence in 2000 and has not been in trouble since.
But he has suffered a series of heart attacks and is stricken by arthritis, and believes the stress of being indefinitely on the Sex Offenders Register and continued police involvement in his life has contributed to his ill health.
The High Court ruling that the lack of review provisions in the reporting regime for sex offenders violates the Human Rights Convention will almost certainly force a change in the law.
(Now, if only the United States Justice system can be as intelligent as is the UK London High Court)
An expected $3 million shortfall through 2010 means fewer juvenile sex offenders will be evaluated and treated as efforts to build a new center have been scrapped. More kids will be crowded together if a long-term lockup center is closed. And funds will be chopped from a slew of community programs including one that gives police a place to take arrested juveniles if their parents can't be found right away.
The budget downturn will force them to eliminate $600,000 pegged for the center and restart the process of finding land in a time when the number of young sex offenders is exploding.
In the mid- to late-1990s, an estimated 7 to 10 percent of the juvenile offender population was in for sex crimes. The number has now doubled to 20 percent, Maldonado said, and there are many more offenders among the nearly 10,000 kids taken in annually by the Department of Child and Family Services and the courts. In addition to losing the prospect of an assessment center, Valley Mental Health last year cut contracts providing mentally ill juvenile sex offenders much-needed psychiatric help. Without treatment alternatives, young offenders tend to land in lock-ups more often, he said.
As a clinical social worker, Butters said he once treated a 16-year-old boy who fit a fairly typical mold for young offenders -- exposure to pornography in pubescent stages and being slightly socially awkward or bored. The young man has since gone on to graduate from college, is married, has a child and plans to study law so he can help kids in similar situations.
"If you treat them, they probably won't do it again," Butters said
(Oh, really? I thought the standard myth is that sex offenders cannot be cured .. hmm...)
, citing studies that show treated kids re-offend less than 10 percent of the time. "We want them to get on with their lives rather than put a scarlet letter on their forehead."
(the scarlet letter is being branded on the foreheads of all sex offenders, not just juveniles)
Treatment for the most common young offenders involves individual and group visits to therapy programs, but one of the major components is simply preoccupying the kids.
Over the next two years, Juvenile Justice plans to eliminate $3.7 million from community programs, ranging from group homes to psychiatric hospital treatment. It will also eliminate $3 million from holding facilities, such as the Decker Lake Detention Center, which could force the department to cram twice as many juveniles into cells. Other proposed cuts include supervision and diversion programs for juveniles.
"We are very concerned about public safety first and foremost," Maldonado said. "We want to isolate sex offenders, and we spend time and energy in treating all of those kids and affording them opportunities for treatment."
(isolating sex offenders is the worst thing you can do; studies prove that sex offenders have a higher risk of re-offending when they are isolated from society)
Low funding means only 235 of the nearly 2,000 sex offenders imprisoned in August were receiving treatment as of November.
U.S. Department of Justice : Sex Offender (SORNA) Guidelines
U.S. Department of Justice : FAQ's
Congressional Research Service (2007): Identification of sex offenders on U.S. passports
Although the Secretary of State is not authorized to identify a passport holder as a sex
offender on their passport, Title I of the Adam Walsh Child Safety and Protection Act of
2006 (42 U.S.C. §§ 16901 et seq.), the Sex Offender Registration and Notification Act
11 (SORNA), established uniform standards and guidelines for state, territorial, and tribal sex
offender registries and mandated the Attorney General to establish a national sex offender
registry, public website, and communitynotification program and to establish guidelines and
regulations to implement these activities. The statute provides for three tiers of sex offenders
depending on the seriousness of the offense of which the person was convicted and includes
certain juvenile offenders and also foreign convictions which were obtained in accordance
with sufficient safeguards for fundamental fairness and due process for the accused.
Community notification must be made bythe appropriate official in each state, territorial or
tribal jurisdiction to law enforcement,school,and housing agencies; any agency responsible
for conducting employment related background checks under § 3 of the National Child
Protection Act of 1993 (42 U.S.C. § 5119a); social service entities responsible for protecting
minors in the child welfare system; volunteer organizations in which contact with minors or
other vulnerable individuals might occur; and anyorganization, company, or individual who
requests such notification pursuant to procedures established by the jurisdiction. The
Attorney General, in consultation with the Secretary of State and the Secretary of Homeland
Security, is required to establish and maintain a system for informing relevant jurisdictions
about persons entering the United States who are required to register under SORNA
SORNA supersedes the former federal sex offender registry and notification law, the
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act
and related statutes...
A range of constitutional issues could arise with regard to the identification of a person
as a sex offender on his/her passport, similar to those which have arisen in the context of sex
offender registries and community notification requirements. During congressional
consideration of the Adam Walsh Child Safety and Protection Act, potential constitutional
concerns were noted as was the state compliance exemption for provisions held by State
Supreme Courts to be inconsistent with State constitutions. The federal sex offender
registration and community notification law has recently been upheld by a few federal district
courts against various challenges on ex post facto, procedural due process, substantive due
process, federalism,anddelegationgrounds. These cases concerned criminal charges under
18 U.S.C. § 2250, added by§ 141(a)(1) of SORNA, brought against sex offenders who failed
to register after moving interstate after the date of enactment of SORNA. The cases dealing
with ex post facto challenges generally follow Smith v. Doe, a U.S. Supreme Court decision
upholding a State sex offender registry, discussed below
One should note that the SORNA penalty for violating the requirement to register or update registry
information after traveling in interstate commerce, i.e., after moving to another state to live,
work, or attend school, also applies to travelingin foreign commerce, although the U.S. laws
cannot mandate registration in a foreign country.
Since passports fall solely within the jurisdiction of the Federal Government, the state case
law or considerations necessary for state registration/notification laws would be irrelevant
to passport guidelines. Although the registry and notification federal case law may be
relevant by analogy to the passport context and may indicate possible constitutional issues,
it is uncertain how the courts may treat legal issues that may arise for a passport
In addition, there is no fundamental right to a passport; revocation, restriction, or
impingement of a passport does not constitute an infringement of the constitutional right to
ConstitutionalFights will conduct further research into this topic and we will be submitting application for a U.S. Passport in the name of a registered sex offender to obtain a passport. We will report the results within the next month on this blog.
Update January 2009: Passport was issued to our test subject.
Saturday, December 20, 2008
The case is United States v. Edward Myers, No. 08–60064–CR– Zloch (S.D. Fla. Dec. 9, 2008). Judge William Zloch’s Final Order of Dismissal is 82 pages of thorough Commerce Clause analysis. In its conclusion, the court found that "Section 16913 [42 U.S.C. § 16913] transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling case law." The court goes on, "Section 2250 [18 U.S.C. § 2250] also exceeds that grant of power made to Congress under the Commerce Clause." The court delves into the Commerce Clause jurisprudence, analyzing the evolution of the case law and application of Lopez, Morrison, Raich, and Scarborough to SORNA. Here are some highlights:
1) "Nothing links the registration of sex offenders with interstate commerce."
2) Section 16913 does not regulate any activity—rather, it regulates a status, that of being a sex offender.
3) Section 2250 does not criminalize travel for an unlawful purpose, nor does it criminalize failing to register during travel. Jurisdictional element of "interstate travel" is indefinite, requiring only that the person travels/has traveled in interstate commerce at some point. No purpose attached to travel and travel is divorced from the failure to register.
4) Section 2250 is not aimed at travel at all.
5) In dicta, the court does classify Section 2250 as "simply an administrative regulation of persons who are supposed to register under § 16913" and cites Smith v. Doe, which is not the most helpful approach for an Ex Post Facto challenge. This characterization of the SORNA and citation to Smith v. Doe is not a real strike against the opinion though, as many defenders are doing an excellent job meeting these challenges already.
6) The court goes so far as to suggest that Scarborough and the "minimal nexus test" have been called into question by United States v. Jones, 529 U.S. 848 (2000).
The court emphasizes that Congress "has no power to regulate a person simply because at some earlier time he has traveled in interstate commerce." The opinion is worth a read if you have a SORNA and/or Commerce Clause issue.
While providing Congress with the power to regulate sex offenders in the manner attempted by SORNA would admittedly aid Congress in its goal to protect the public, it is not among Congress’s enumerated powers. Congress has never been accorded the general police power it has sought to exercise in SORNA. See Lopez, 514 U.S. 596-98 (Thomas, J., concurring); Cohens v. Virginia, 19 U.S. (6 Wheat.) at 426. Cases are legion that note
that the federal government does not have the residual power held by the states. E.g., Lopez, 514 U.S. at 584-602 (Thomas, J., concurring). With statutes like those at issue here, Congress’s desire to aid in the protection of society against sexual predators is understandable and laudable. However, “the powers of the
legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). Specifically, the grant of power made under the Commerce Clause is limited. Lopez, 514 U.S. at 552-553 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at
189-95). Therefore, the statutes challenged herein cannot be upheld. Section 16913 transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling case law. Section 2250 also exceeds that grant of power made to Congress under the Commerce Clause. It is in no way a regulation of persons in interstate commerce but an exertion of a general police power through an illusory and impermissible jurisdictional nexus. Thus, the Court declares that § 16913 is unconstitutional in that Congress lacks the power to enact the same under the Commerce Clause. Because an unconstitutional law is no law at all, Defendant Edward Myers shall go hence without day.
Read Judge Zloch's Ruling here.
Friday, December 19, 2008
A Sex offender has won a groundbreaking ruling that his "indefinite" placement on the sex offenders register with no right of review breached his human rights.
The test case of Angus Thompson came before three judges at the High Court in London.
Lord Justice Latham, Mr Justice Underhill and Mr Justice Flaux said the current system denied him the chance to prove in a review he no longer posed a risk of reoffending.
The judges ruled that Thompson was entitled to declarations that the scheme was incompatible with his right to private and family life under the European Convention on Human Rights.
But he added: "I find it difficult to see how it could be justifiable in Article 8 terms to deny a person who believes himself to be in that position an opportunity to seek to establish it."
Lawyers had argued that Thompson should be entitled to attempt to come off the register and stop having to notify the police of his personal details, including whether he intended to travel abroad.
Pete Weatherby, appearing on behalf of Thompson, argued that he should be entitled to periodic reviews.
Thompson was sentenced in November 1996 to five years in jail on two counts of indecent assault on a female and other offences of actual bodily harm. The court heard he has since been released and he has not been in any more trouble.
Gastonia, N.C., 12.19.2008
A new state law will keep registered sex offenders from attending some churches. The law prohibits sex offenders from being within 300 feet of a child care center, and that apparently includes nurseries that are operated during church services.
Rev. Ben Robertson of All Saints Episcopal Church in Gastonia told the Gaston Gazette that the church should be open to everyone, even sex offenders. But Gaston County deputy sheriff Shane Farmer says the law is clear. If a convicted sex offender "is within 300 feet of that nursery, then he or she is in violation."
While the state law does not specifically mention churches, Farmer says the law doesn't exempt churches. He told the Gaston Gazette that the law "definitely puts limitations" on church attendance for registered sex offenders.
Is there really ANYONE out there who still believes that these laws are not unconstitutional??
SACRAMENTO, CA - The California Sex Offender Management Board released a report Thursday that shows a dramatic increase in homelessness among sex offenders on parole. The report, titled "Homelessness Among Registered Sex Offenders in California: the Numbers, the Risks, and the Response," shows an 800 percent increase in transience among sex offenders when residency restrictions under Jessica's Law are actively enforced.
California voters approved Proposition 83, or Jessica's Law, in 2006. It prohibits convicted sex offenders from living within 2000 feet of schools and parks. "When you draw circles, 2000 foot circles around schools and parks particularly in dense urban areas it becomes really difficult to figure out a place they can live," said Sex Offender Management Board Chair Suzanne Brown-McBride. "So many folks are forced to be transient."
Along with her post on the Sex Offender Management Board, Brown-McBride is also the Executive Director of California Coalition Against Sexual Assault. "As a victims' advocate, the thing that I care most about is making sure I can do everything I can to make sure an offender will not re-offend," said Brown-McBride.
The report found that homelessness increases the risk that a sex offender may re-offend.
"When offenders are transient, it's difficult to stay in contact with your supervisor. It's difficult to be in treatment, it's difficult to hold a job, all of those things we know stabilize offenders," said Brown-McBride. "When they (sex offenders) are successful in the community, it means that we're safer."
The report concludes that laws forcing sex offenders to go homeless are not in the best interest of public safety.
"Policymakers should take steps to ensure that there are stable and appropriate housing options available for sex offenders," said Brown-McBride. Lawmakers in Iowa, which has similar residency restrictions for convicted sex offenders, will consider several bills aimed at easing those restrictions.
"It's easy to say I don't care if a sex offender is homeless, but you should care because it's about public safety," said Brown-McBride.
Paroled sex offenders are fitted with GPS devices in California. "But GPS is not the same thing as having a stable place where you can check on them and be around them," said Brown-McBride. "We're going to have to figure out some other solution."
the Sex Offender Management Board will make recommendations to legislators in January. "Some of that may involve rethinking the restrictions," said Brown-McBride. "It may involve thinking about loitering restrictions instead of residency restrictions."
To view the full report, click here.
This is what you get when you ostracize sex offenders from society. Again it proves that isolating sex offenders actually endangers communities , contrary to popular scare tactics of residency restrictions.
Thursday, December 18, 2008
Legislation designed to protect elderly people crashed and burn in the Ohio Senate. The Ohio bill called for care facilities to notify residents when registered sex offenders move into the homes.
After unanimous support in the house, the bill died this week in front of Senator Tim Grendell's Criminal Justice Committee in the Senate. Grendell said he wanted to know what kinds of facilities would be next.
Perhaps the Ohio Legislature is now finally worried about how much trouble they got into by passing Senate Bill 10 (Adam Walsh Act Laws), which is being challenged in every county of the state (over 3,000 legal court cases). Perhaps they finally are beginning to wake up and understand that they have to abide by our Constitution?
Tuesday, December 16, 2008
Today was exposed the ultimate lie behind the abduction and murder of Adam Walsh in 1981.
The man police now officially blame for his death was neither a sex offender nor a child molester. Ottis Toole died in prison more than a decade ago with no criminal history of sex offenses. He was a serial murderer. And furthermore, there has never been a shred of evidence of any sexual assault of Adam Walsh.
The ultimate lie exposed is that even with today's draconian sex offender registration laws, the murder of Adam Walsh would not have been prevented because Mr. Toole would not have been a registered sex offender at the time.
On December 16, 2008 The Hollywood Police Department in Florida, announced that Ottis Toole was found to be guilty of the kidnapping, death and decapitation of Adam Walsh. They have since closed the case. No sexual assault was alleged.
Yet Adam's father, John Walsh gained fame on the back of his son's murder, and through subjecting his bitter hatred toward sex offenders of any degree. His rise to fame has come at the expense of imposing much pain into the families of hundreds of thousands of Americans who have committed sex offenses, most of which are not violent or predatory in nature.
And in the meanwhile, John Walsh admitted on CNN's Larry King show on July 15, 2003 that he had a sexual addiction problem:
"WALSH: I couldn't deal with it. .. you know, women can be an addiction, and you have to deal with it...
KING: So you understand men who have that problem?
WALSH: Oh, I had it for years and didn't think I had it.
KING: Everyone was shocked that you so freely admitted it when the story broke, because most guys in that situation -- show me the proof, or, you know, give me the DNA.
WALSH: I think you've got to be a man about it. You've got to step up to the plate. If you've made a mistake, apologize for it, admit it. If you did something wrong and you hurt somebody, admit it. I don't get the denials. Look at what it did to other people that denied it.
I made a mistake. I made a lot of mistakes. And I hurt -- but, you know, that's the way I was raised, if you do something wrong, you know, stand up, be a man and admit it. And I admitted it, and I apologized, and I'm doing the best I can. "
I guess the grace of redemption only applies to Mr. Walsh...
Monday, December 15, 2008
WASHINGTON — Sex offender registries are often inaccurate and incomplete, undermining public knowledge about some of the nation's most reviled criminals, Justice Department investigators warn.
The national sex registry is missing information on 22 percent of state-level sex offenders, the federal investigators found. Even as sex registry information becomes more widely accessible via the Internet, investigators sound alarms about the databases used to monitor the nation's 644,000 registered sex offenders. The concerns coincide with more fundamental questions about whether the stigmatizing registries go too far.
Sex offender records are "inconsistent and incomplete", investigators concluded.
"Neither law enforcement officials nor the public can rely on the registries for identifying registered sex offenders, particularly those who are fugitives," investigators noted.
"We found that the registries that make up the national sex offender registration system, the FBI’s National Sex Offender Registry (NSOR) and OJP’s National Sex Offender Public Registry (NSOPR) portal, are inaccurate and incomplete and cannot be relied upon by law enforcement or the public for identifying registered sex offenders."
"In addition, the public cannot rely on the NSOPR portal as a complete and accurate registry to identify registered and non-compliant sex offenders in their communities. We believe that, when implemented, the SORNA guidelines will improve the quality of data in the sex offender registries, but will not correct all of the problems we noted."
View Justice Department Report here (PDF file).
What is quickly brushed over in this report is the inaccuracies. Incorrect information is often posted, listing home addresses of non-sex offenders as being the home of a sex offender, and exposing these families to harm. Incorrect information about an offender's crime is often listed on these registries. And the most dangerous offenders are the fugitives mentioned who are not even registered. Therefore, these registries are largely ineffective and dangerous.
Flsenate.gov (PDF file) : Fiscal, Policy, and Legal Considerations Regarding State Compliance with the Adam Walsh Act.
In 2007, the Florida Legislature enacted legislation to revise Floridas laws to comply with SORNA (SB 1604 and some provisions of SB 1004, the Cybercrimes Against Children Act of 2007). SB 1604 adopted many, but not all, of the requirements of SORNA
If legislators decide not to substantially implement SORNA then Floridas registration/notification laws can be shaped by legislators without the need to consider whether those laws will substantially implement SORNA and ensure full JAG funding. The JAG funding penalty to ensure SORNA compliance is only federal leverage if a state determines that it must have full JAG funding. Legislators would be free to determine which, if any, SORNA requirements to adopt, and could even reconsider and remove SORNA requirements previously adopted, depending on their determination of the states best interests.
It is uncertain if non-compliance with SORNA could be used as state leverage for Congress to reconsider at least those requirements that have generated the most debate or controversy, but it seems intuitive that Floridas decision not to comply with SORNA would be of significant concern and importance to Congress and the U.S. Department of Justices Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART), which administers the SORNA standards. Florida has one of the largest pools of registered sex offenders in the country, so Floridas non-compliance with SORNA might call into question whether the AWA can, in fact, establish "a comprehensive national system for the registration" of sex offenders (SORNA 102), one of its declared purposes.
While states are free to choose not to substantially implement SORNA, non-compliance will result in a 10 percent reduction in Byrne Justice Assistance Grant (JAG) funding. All states are currently under time constraints to comply with SORNA. The implementation deadline is July 27, 2009, but the U.S. Attorney General has the authority to grant up to two 1-year extensions of the implementation deadline. The Florida Department of Law Enforcement (FDLE) has indicated it intends to file for a one-year extension as it is unclear at this time whether the Legislature intends to substantially implement SORNA.
States are beginning to look at whether they can afford to comply with SORNA. However, it is impossible to definitively state what it would cost Florida to comply with SORNA and what Florida stands to lose based on the reduction of 10 percent JAG funding for not complying with SORNA. This is because of uncertainty about future JAG funding, how the JAG funding penalty would be applied, and the availability and duration of grant funding.
State action necessary for compliance with SORNA (including statutory changes) is not entirely clear. Failure to comply with SORNA puts a state at risk to lose 10% of Byrne grants, which all of the states use to pay for such things as drug task forces, anti-gang units, police overtime, and
other law enforcement activities. But funding for this formula grant program in fiscal
2009 has been cut from its $520 million fiscal 2008 appropriation level to zero and
replaced with a $200 competitive grant program. While it is unclear how this change will
affect the penalty provisions of SORNA, Maryland could risk the loss of between zero
and about $200,000 for noncompliance.
But, Maryland would spend $9,112,724 to implement these laws. See statistics.
DAYTON: As the county tries to find $2 million in budget cuts, the sheriff's office in Dayton is preparing to lay off anywhere from five to 23 deputies.
Chief Deputy Mike Nolan in the Montgomery County sheriff's office said the cuts will take effect Jan. 1.
With the recession squeezing tax revenues, communities around Ohio are slashing jobs and services, and first responders are finding they're not immune from cutbacks.
Columbus and Toledo are looking at hiring no new police officers or firefighters to replace those who are retiring.
The cost of implementing the Federal Adam Walsh Act (SORNA) laws in Ohio in 2009 is:
18.6 million dollars.
In exchange for implementing these sex offender registration laws before the 2009 deadline, Ohio will receive $622,383 (the 10% of Byrne Funding). This is the reason for states like Ohio for rushing to enact these laws. The federal government is blackmailing states by threatening the loss of the 10% Byrne funds if they fail to enact these laws by July 2009. In return, states will spend at least 30 times more to enforce the laws (Ohio will spend $18.6 million in order to avoid the $622,383 funding loss). And the result ?... laying off sheriffs is only the beginning. And this all is making our state safer?? Great work, guys !
See the statistics for yourself at http://constitutionalfights.blogspot.com/2008/09/what-will-it-cost-states-to-comply-with.html
"A growing controversy about registered sex offender websites"
"Increasingly they are being used for acts of vigilantism and even murder. And even registry advocates are getting concerned."
We have been shouting this from the rooftops for a year now and only now are officials realizing this might be a problem?
"Reigniting debate over sex offender registries."
"Half of all registered sex offenders have been harassed
in person and 1/4 have received threatening calls and emails".
How many murders and acts of violence will be allowed as a result of these registries before our society finally demands their removal?
Utah must change the listings on its sex-offender registry to eliminate data about a victim's age and gender following a Utah Supreme Court ruling issued Friday.
The high court concluded that providing information about possible "targets" the offender might seek in the future suggests that the offender still remains a danger to the community, but it provides no court hearing for the individual to contradict that contention.
The ruling emerged from the case of Steven Arthur Briggs, who was found guilty of sexually abusing a 9-year-old girl in 1986 and served 15 years in prison. He refused to register as a sex offender after being released from prison. Briggs appealed his case and argued that Utah's sex offender registry unfairly labels all sex offenders as predators even when they have had no history of repeat crimes, which subjects them to such things as possible public humiliation, physical danger and discrimination in housing and employment.
Briggs said publishing that information in the online registry without a hearing before a judge to prove he is not a current risk violates his constitutional right to due process.
The Supreme Court rejected other claims made by Briggs — such as his argument that his constitutional rights would be violated if he is required to register, and that the information included such things as his address, how he looks and any prior convictions.
But the high court said the parts of Utah law that require publication of Briggs' primary and secondary "targets" do breach his right to due process as it is done without providing him with a court hearing where he can show otherwise. In Briggs' case, the high court reversed portions of a ruling by a trial court and sent that part of the case back to the lower court.
Tuesday, December 9, 2008
North Carolina's intentions to further protect communities by strengthening the state's laws against sexual offenders will do very little to keep people safer, ineffectively target people who are least likely to reoffend and ultimately may increase the chances that the most troubled offenders will recommit sexual crimes.
Although only one state lawmaker voted against these tighter restrictions, other legislative members should examine the research more closely and revisit such laws in the next session.
The state's legal clampdown -- aimed at bringing North Carolina into compliance with the federal Adam Walsh Act -- went into effect Dec. 1. Among the new requirements: that people who commit certain sex offenses remain on the state's offender registry for 30 years, triple the previous length of time. Offenders must also now report a change of address to their local sheriff's department within three business days and stay at least 300 feet away from any place where minors might gather, including malls, childcare centers and churches.
Registration and notification laws were intended to encourage citizens to be proactive in protecting themselves as well as provide law enforcement with a ready pool of suspects when a sex crime is reported.
However, independent research from Marquette University and the University of Alabama has shown that these laws do little to prevent sexual crimes or mobilize citizens into action. Instead, there is evidence that they limit an offender's ability to put treatment skills to use and make it that much more difficult to successfully integrate back into society, as well as find housing and employment.
In an additional study out of Marquette University, researchers found that family members who were unconnected to the original crime are also harassed, including receiving death threats.
Even supporters of Jacob's Law, the first federal act requiring sex offender registration, have raised concerns about the legal restrictions. Among them is Patty Wetterling, the mother of Jacob Wetterling, an 11-year-old Minnesota boy who was kidnapped years ago and still missing and for whom the offender registration law was named. Wetterling and her husband co-founded the Jacob Wetterling Foundation -- now the Jacob Wetterling Resource Center -- which works to prevent sexual violence.
In a 2007 article for Human Rights Watch, Wetterling spoke out about the repercussions of the current attitudes toward sex offenders and the laws created as a result of those feelings. She cited research that showed that many of the laws may not prevent sexual attacks but instead invite the public to harass, ostracize and even commit violence against sex offenders, all of which affects their efforts to turn their lives around. Such experiences may also encourage offenders to further isolate themselves and may actually increase the chances that they will repeat their crimes. These findings are consistent with other previously cited research.
Additionally, current laws do not address the individuals who are at the greatest risk of committing a sexual offense, namely family members. According to a study from the U.S. Department of Justice, only 3 percent of children under the age of 6 who have been sexually assaulted were assaulted by strangers; most were assaulted by family members or someone known to the child.
Sunday, December 7, 2008
Elected officials and victims’ advocates say tough sex-offender laws are necessary to protect society from dangerous criminals. But some offenders and their relatives, like Kennedy, see the restrictions as overly intrusive and unnecessary. Her husband has served his time and is a danger to no one, Kennedy argues.
“In Salem, they had a witch-hunt, and in America, we’re still having a witch-hunt, and the witch-hunt is just different,” said Kennedy, a Parsonsburg nurse. “It’s the sex offender.”
Kennedy runs a blog called Sex Offenders and Their Wives, where she vents about the difficulties of living with sex-offender restrictions and debunks what she said are myths about offenders, like the high probability that they will re-offend and their imperviousness to treatment.
She also heads the Maryland chapter of the national group Reform Sex Offender Laws. (ConstitutionalFights is the Ohio Affiliate for RSOL)
She started reading about sex offender laws on the Internet and found that lots of offenders, their family members and some advocacy groups agreed the restrictions had gone too far.
Human Rights Watch released a study last year arguing that registration laws are overbroad, that registries have led to violence and harassment against registrants, and that residency restrictions “banish offenders from entire urban areas.”
Like Sandy Kennedy’s blog, offender-advocacy Web sites argue that the majority of registered sex offenders are not monsters who repeatedly kidnap and rape children — or, as Baltimore criminal defense lawyer Thomas P. Bernier put it, “some lecherous guy pulling 10-year-olds into a van.”
Many don’t pose a continuing threat to children, Bernier said; some never did in the first place.
Challenging the premise
Recent studies have shown that, at most, 20 percent to 30 percent re-offend, a lower rate of recidivism than other criminals, he said. (Actually it is under 10% - see our post on Federal Justice Department Statistics)
“There are these evil people,” said Pavlinic, who specializes in defending accused child molesters. “Those are violent sexual predators, people from whom the public has to be protected. There are a lot of people who have in the course of their life simply made a mistake, either with their own children or because of the age difference.” They “get treatment and then they never do it again,” he said.
Sandy Kennedy suggested that the government register criminals with a higher risk of recidivism, like drug dealers. She said she is not opposed to all sex offender restrictions, just the pointless ones.
Opposing the registries
“Safe,” though, was not what Sandy Kennedy felt when a local newspaper published her husband’s name.
Vigilantism is one reason some activists oppose putting offenders’ identifying information, including pictures, on Internet registries.
Paul Shannon, a founder of Reform Sex Offender Laws, said registries encourage people to target sex offenders, citing the 2006 murder of two Maine offenders by someone who found their names online. (Shannon would like to see public registries abolished; information about truly dangerous criminals should be shared among law enforcement officials, who would decide whether to alert the community.)
One of the men killed in Maine had served time for having otherwise consensual sex with his girlfriend when he was 19 and she was a few days shy of 16. “Virtually all adolescent sexuality is now criminalized,” said Shannon, who said he is not an offender or ex-offender, just a civil liberties advocate. “This is a serious attack on children and their right to grow up.”
ABC reporter John Stossel did a series earlier this year on offender laws gone overboard; among other people, he featured a man who had, had sex with his girlfriend when he was 19 and she was 15. Twelve years later, they are married with four children, but he must still register as a sex offender.
He said sex offenders have begun pushing back against the regulations but haven’t gotten much traction.
“Who wants to be the guy who wants to be known as out in [the] legislature championing sex offenders?” Bernier said.
Freedom to fight
Shannon, the national organization’s founder, said it’s typical for women who are close to sex offenders to advocate on their behalf. The offenders themselves don’t necessarily want to call more attention to themselves, he said. Though Kennedy worries about her safety and that of her husband, she said she needs to speak publicly in order to bring change.
“I figure he’s on the registry; how much more visible can you get?” she said. “I felt that if we didn’t want publicity, that we won’t be able to change the way things are. We were trying to keep a low [profile], not being public,” she said, “until he registered and they kind of gave us the freedom to go on out and make it known, and fight some of the injustices.”
States have a choice: They can fall in line with a federal sex offender law by enacting broad new restrictions on offenders by next summer, or risk losing federal anti-crime money. (Implementation costs are many times greater than the amount of funds states would lose in refusing to adopt these Adam Walsh Act laws - see our post : "Costs to States" for statistics )
Offenders and their lawyers say the government is improperly using the law, the Sexual Offender Registration and Notification Act, to impose restrictions on offenders convicted years ago. “The big problem we’re having here is people are being prosecuted for federal failure to register when SORNA hasn’t even been implemented in states,” said Paresh S. Patel, an assistant federal public defender in Greenbelt.
Federal defenders across the country are challenging SORNA on many grounds.
SORNA expands the number of people required to register, increases the information governments must collect about registrants and the information they can disclose to the public, and toughens penalties for failing to register.
Under the terms of the law, states must pass SORNA-compliant laws before July 27, 2009, or lose 10 percent of their funding through the Edward Byrne Memorial Justice Assistance Grant program.
Maryland received $2.2 million in Byrne money in the 2008 fiscal year.
Patel said not a single state is complying yet.
Monday, December 1, 2008
ConstitutionalFights.org is the Official State Affiliate of the RSOL
(Reform Sex Offender Laws Now! ) Organization.
As such, we are occasionally asked to undertake efforts and research
for the parent organization. The objective of this work is to further
the efforts and fights against unconstitutional sex offender laws
throughout the nation and within Ohio. Letter writing, compiling
information about state sex offender laws and statistics, posting or
distributing fliers, etc. are amongst these efforts.
Therefore, we need to establish a means to build a list of Ohio
members who would be willing to provide research and writing efforts
on behalf of the Ohio Affiliate, and for the national organization.
This list would be separate from this member list here on Yahoo
Groups, as members of this Group may or may not be interested in
working to help defeat these laws.
The primary consideration in establishing such a list would be that of
member PRIVACY! Names of members will never be posted, released or
distributed by or with the knowledge of ConstitutionalFights.
If you have a suggestion for building such a member list, please post
or contact us here, at our Yahoo Group, or at ConstitutionalFights@yahoo.com.
Are you willing to help fight these laws?
Please submit your answer above, or respond to our survey question at :
(your name will not appear in results)
DES MOINES, Iowa (AP) -- As Iowa faces a deadline to update its sex offender law to match a stricter federal one, state lawmakers may use the opportunity to get rid of a controversial 2,000-foot rule restricting where offenders can live. Under the federal law, sex offenders would have to stay on an online public registry at least five years longer, reveal more personal information about where they work and go to school, and face more supervision from law enforcement.
If Iowa doesn't comply with the federal provisions by the July deadline, the state could lose up to $450,000 for law enforcement activities. (But the cost of implementation is many times greater than this amount - see "Cost to States" post on this blog)
For some Iowa lawmakers, the federal law is providing an opportunity to toss out the state's 2,000-foot state rule that bans sex offenders from living near child care centers and schools.
Ross Loder, who lobbies for the Iowa Department of Public Safety, said the department will finalize a draft bill early this week. The Legislature reconvenes in January.
Child abuse experts contend up to 90 percent of child sexual abuse is committed by a person known to the child's family, and it's a myth that children are most vulnerable to attacks by strangers who approach them at school or other public places.
Some victim advocates and lawmakers are leery of the new federal law, called the Adam Walsh Child Protection and Safety Act. Sen. Keith Kreiman, D-Bloomfield, said the provisions would cost Iowa law enforcement more in time and money. "When you're adding additional burdens on state and local taxpayers, you'd better make darn sure what you're doing is going to result in better public safety," said Kreiman, who heads the judiciary committee in the Iowa Senate.
Ben Stone, executive director of the American Civil Liberties Union of Iowa, said the existing 2,000-foot rule is "extremely bad public policy." He urged lawmakers to be careful when applying the federal law.
"Several courts already have declared portions of the Walsh act unconstitutional, and state legislatures around the country are beginning to defy its mandates. Iowa's leaders should do the same," Stone said.
But, Loder said: "If Iowa were to stand out and say, 'We're not going to comply,' is the implication that we're going to be kind of like an island for offenders who don't want to be in this national system?" (Not if other states follow your lead, as they should)
Tuesday, November 25, 2008
Prison term imposed after he failed for second time to register as sex offender
The Georgia Supreme Court on Tuesday struck down another provision of the state’s tough sex-offender law, calling mandatory life sentences for offenders who fail to register a second time “grossly disproportionate” punishment.
In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence imposed upon 26-year-old Cedric Bradshaw of Statesboro violates the Eighth Amendment’s guarantee against cruel and unusual punishment.
“We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote.
Georgia’s sex-offender law has been under legal attack on a number of fronts. It requires offenders to register their addresses within 72 hours after release and makes it a crime for them to live within 1,000 feet of places children congregate.
His lawyer, circuit public defender Robert Persse, applauded the ruling. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question,” he said.
After getting out, Bradshaw registered as required and moved in with his sister. But he was forced to leave because her home was within 1,000 feet of a children’s recreation center. He properly registered again and moved in with his aunt. But he had to move once more because she lived near a church.
Bradshaw then registered a family friend’s trailer but gave an incorrect address and never moved in. Last December, he was convicted of the second offense and sentenced to life.
In his ruling, Benham noted that someone convicted of voluntary manslaughter or aggravated assault with the intent to murder, rob or rape can receive a sentence as lenient as one year. “Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion,” Benham wrote. “This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces the inference that [Bradshaw’s] crime and sentence are grossly disproportionate.”
Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”
The ruling is the latest setback for the sex-offender law.
A year ago, the court ruled in favor of a Clayton County homeowner, saying it would be an “illegal taking” if he were forced to abandon his home after a day care center was built nearby. The ruling prompted the Legislature to amend the law. Two months ago, the court struck down as vague another provision, saying it gave no clear direction to offenders who are homeless and cannot register a route or street address.
Still pending is a federal lawsuit attacking the law’s provisions that make it a crime for sex offenders to live or work within 1,000 feet of places children congregate. On Monday, a judge allowed the lead plaintiff, Wendy Whitaker, to remain in her home outside of Augusta while her lawsuit makes its way through court.
Wednesday, November 19, 2008
From Press Secretary Dana Perino:
On Monday, October 13, 2008, the President signed the following bills into law:
S. 431, the "Keeping the Internet Devoid of Sexual Predators Act of 2008" or the "KIDS Act of 2008," which requires: sex offenders to provide Internet identifiers, including e-mail addresses, to State sex offender registries; and tasks the Justice Department to establish and maintain a system that allows social networking websites to compare Internet identifiers of its users with those provided to the National Sex Offender Registry;
Here we go again! Another broadly applied federal law(with severe punishments) that recognizes no distinction between active pedophiles and all the other kinds of sex offenders there are, former or otherwise.
The two obvious problems with this inane legislation are:
1.) Anyone with common sense can recognize that a sex offender can register one email address with authorities and sign onto social networking sites using another email address. Most people use more than one email and local sheriff registry offices only document one email address of a sex offender.
2.) In Doe v. Shurtleff, 25 September 2008, a United States District Court Judge found Utah's law requiring sex offender disclosures of online identifiers as unconstitutional! (link)
Monday, November 17, 2008
MODESTO, CA - Less than a day after attacking a News10 crew and other reporters outside his relatives' Oakdale home, convicted sex offender Darren Kawamoto talked to News10 about what set him off.
"They came up under the cover of darkness. They didn't pull up in the driveway or nothing. They just creeped up to the door," Kawamoto said during the interview with News10's Tim Daly inside the Modesto County Jail. "I opened the door. They didn't have no lights on or nothing. They were just all in suits and ties."
With the porch light on and camera lights running, Kawamoto attacked News10 reporter Cornell Barnard and photojournalist Damien Espinoza along with another television news crew Tuesday night when they went to his family's house to ask him questions.
"That's my family. That's my niece, my mom, my dad. I'm trying to do everything I can to protect their identity, to protect their reputation," Kawamoto said.
Kawamoto was charged with a felony of making violent threats and remained in custody Wednesday on $50,000 bail. With his two prior convictions, any new felony conviction would be his third strike.
Kawamoto said it was threatening behavior by others in Oakdale since he arrived in town that made him so quick to make threats himself. "I just want to turn around and snap. Here I am, after three weeks of this, three weeks of threats, crank calls and everything...How would you act?," Kawamoto said.
"I was protecting my family," Kawamoto said.
ConstitutionalFights can attest to the fact that these types of sneaky sabotage tactics are used by news crews and police (and other legal authorities and officers) can be very threatening to a sex offender, who rightfully expects a degree of privacy and security in his/her own home. And we do not criticize this man for attempting to protect his family from an apparent threat.
It's called Condition X: tough restrictions on the way some criminals, mostly paroled sex offenders, must live once they're out of prison. Condition X determines the minutiae of their daily lives – whether they can visit a school or attend church; whether they can live with their families or in an apartment with a swimming pool; whether they can access the Internet, work at a convenience store, even whom they can date or marry.
But a growing number of offenders are fighting back against the strict limits, which they say are most often imposed without a fair hearing, and treat low-level offenders and violent predators alike.
"I'm not at war trying to defend sex offenders," said attorney Bill Habern, who has scored several incremental victories in court against how Condition X is imposed. "I'm at war trying to protect our Constitution."
The current system is unfair to low-level offenders such as young people who had consensual sex with minors, said Mary Sue Molnar, co-founder of Texas Voices, a new organization devoted to changing sex offender laws.
Matter of due process
Ms. Molnar and others say they're not championing pedophiles or rapists. But when someone has consensual sex with an older teen, "it is not as serious a crime as someone who has fondled a 6-year-old," she said.
That distinction is one reason Mr. Habern and attorney Richard Gladden are determined to force state officials to give parolees more due process. And though their efforts mostly have been rebuffed by state judges, they're gaining some traction in federal courts:
• In 2004, the 5th U.S. Circuit Court of Appeals ruled that "Condition X" can't be imposed on parolees who haven't been convicted of a sex offense, without an "appropriate hearing."
• In 2006, the Texas parole board quit automatically denying sex offenders access to their own children, after a lawsuit claimed the board did not give a parolee notice or a hearing.
• Earlier this year, federal Judge Sam Sparks in Austin expressed "grave concerns over the fundamental fairness" of such parole board hearings and commented that the Texas attorney general's office, which represents state agencies, "has apparently failed to take such constitutional challenges seriously."
Condition X is imposed on almost all paroled sex offenders, from those who had consensual sex with an underage teen to violent pedophiles. In some instances, sex offender conditions are even imposed on offenders who don't have a conviction for a sex crime, but whose offense included a sexual aspect. According to the Texas Department of Criminal Justice, about 90 percent of paroled sex offenders have Condition X imposed on them.
A provision of Georgia’s sex-offender law that prohibits offenders from volunteering at places of worship should be struck down because it criminalizes religious conduct, a lawyer argued Thursday.
Because of the provision, offenders cannot sing in adult choirs, play the piano during services, attend adult Bible study classes, serve as a pallbearer at a friend’s funeral or give their testimonies to congregations, Atlanta lawyer Gerry Weber told a federal judge.
Georgia is the only state in the nation that makes it a crime for a sex offender to volunteer at a place of worship, Weber, a lawyer with the Southern Center for Human Rights, told U.S. District Judge Clarence Cooper.
Lori Sue Collins, a member of the Mount Paran Church of God, said she stopped giving testimonials at churches about the redemptive power of Christ because she is fearful of being prosecuted. Practicing one’s religion goes beyond attending services, she said. “I’m required by my faith the give back,” said Collins, 47, convicted of statutory rape for having sex with a 15-year-old boy in 2002. “Every time I share, I heal more or reach someone."
Milligan argues various amendments and additions to the sex offender registration laws, enacted since his initial duty to register commenced in March 1987, when considered collectively constitute punishment and, therefore, would violate the ex post facto clauses of United States and California Constitutions if retroactively applied to him.
"We therefore affirm the judgment, with a proviso that Milligan is not subject to the SPPCA's residency restrictions and GPS monitoring requirements because they do not apply retroactively"
See SexOffenderIssues for full text and links.
Wednesday, November 12, 2008
The recent decision upholding retroactive application of Megan's Law reclassification of those convicted of sex offenses does not cancel court challenges of cases involving the Adam Walsh Act.
"I still have all Adam Walsh Act (cases), and they will still be there," Judge Michael Kelbley, Seneca County Common Pleas, said.
The Adam Walsh Act is a more restrictive three tiered reclassification of offenders. Some offenders now have to register for life, not only where they live but where they attend school and work.
Mary Ward, Seneca County clerk of courts, said in the Seneca County Common Pleas court there are 29 "Adam Walsh" cases challenging the reclassification.
While Kelbley is waiting for guidance from the Ohio Supreme Court in the wake of its Megan's Law decision, Judge Steve Shuff is planning on moving ahead with his cases, saying it could be up to a year before a Adam Walsh case would appear in front of the state supreme court.
The case ruled on by the court was brought by Andrew Ferguson, convicted of rape, who argued it was unconstitutional to apply these new restrictions retroactively and to not allow a judge to revisit the classification. He also challenged that statements, information, photographs and fingerprints are considered public records and are included in the internet database of sex offenders maintained by the attorney general's office.
The court has previously upheld retroactive application of laws regarding sex offenders, saying the changes were not aiming to punish but meant to protect the public.
Barry Wilford, immediate past president of the Ohio Association of Criminal Defense Lawyers, said Kelbley's decision to hold off is probably the smartest decision. "It's a huge mess thanks to the Legislature. Many lower courts are holding tight. That's the smartest way to deal with this," Wilford said.
He said it could be six months to a year for an Adam Walsh case to move to the state's highest court.
He said his organization is emboldened by the dissent in the Ferguson case and feel that it will have some application for the Adam Walsh Act.
"Three members thought even Megan's Law is punitive (punishment) in nature," Wilford said.
Visit Texas Voices Radio Station
A judge in Clark County has upheld the constitutionality of a Jeffersonville ordinance preventing convicted sex offenders from using the city’s parks.
The ruling last week by Superior Court 1 Judge Vicki Carmichael came in a lawsuit brought by Eric Dowdell against the city for preventing him from attending his son’s baseball games in the city’s Little League Ballpark.
The ordinance, enacted in 2006 and amended last year, says convicted sex offenders can’t use city parks but provides an appeal process in City Court for those who believe they deserve an exemption
Dowdell sought an exemption from the city court twice, arguing that he was no longer required to register on the state sexual offender registry for his 1997 conviction of sexual battery and that he posed no risk if he was allowed in the park. But he was denied the exemption based largely on convictions of battery and domestic violence since his 1997 sexual battery conviction.
Carmichael’s ruling wasn’t specifically on Dowdell’s request for an exemption from the ordinance, but was on whether the ordinance was constitutional.
Ken Falk, legal director of the Indiana ACLU, argued for Dowdell that the Jeffersonville ordinance violated his right to use public parks. Falk cited federal law protecting fundamental rights and state law protecting the use of parks as a “core value.”
But Carmichael ruled that entering parks was not “a fundamental right.” She also said that because Dowdell had the right to seek an exemption but was denied one, the ordinance protected his legal right to due process. And she said the ordinance was not unduly punitive because it didn’t ban Dowdell from all public areas but only from parks, which she said the city has the right to regulate.
Is this really still America??
Tuesday, November 11, 2008
On Thursday President-Elect Obama's transition team established a website Change.Gov to both, announce what is transpiring, AND, to listen to folks across the nation.
Post your stories related to how the Adam Walsh Act and Sex Offender SORNA Registration and Notification Laws have impacted your life and family. If Mr. Obama is serious about change, a flood of citizens writing letters to Change.gov could result in revocation of these laws on the federal level. Spread the word to everyone who is adversely affected by these laws and have everyone send letters (not just once, but over and over again).
Email address is required but name. address are optional fields in this form:
Wednesday, November 5, 2008
RSOL Affiliated State Groups - Groups Recognized by or Affiliated With RSOL, by State
Reform Sex Offender Laws is a project dedicated to raising awareness about the consequences of sex offender laws and working towards changing them for the better.
Reforming sex offender laws requires dedication and cooperation with people in your area. Groups have been developing throughout the United States to help in this fight. Please look below for a chapter in your state. Please note ReformSexOffenderLaws.org does not have directly associated chapters, but associate with and help to form autonomous sex law reform groups. Be aware RSOL affiliates may form policies that differ from those listed on the RSOL website. We will do what we can to make sure every state has a group with goals similar to those on the RSOL page.
Thursday, October 30, 2008
"I anticipate that one or both of the parties in the case will appeal," Judge Schneider said. "It won't rest until the Court of Appeals and ultimately the Supreme Court rules on this decision. So, I encourage them to appeal. Only the Supreme Court can render the ultimate decision."
Under the Adam Walsh Act, which took effect Jan. 1, 2008 in Ohio, Plaintiff Toles was reclassified as a Tier III offender, requiring him to register quarterly for the rest of his life. He also became subject to community notification, under which the sheriff is required to notify his neighbors and others in the community of his residence.
Schneider ruled that Toles, 38, is not subject to community notification because a hearing at the time of his conviction determined he was not a sexual predator.
The judge also ruled that much of the information required on the registration form under the new law posed an unreasonable burden in Toles' case, such as license-plate numbers of vehicles available to him, where those vehicles are usually kept, telephone numbers he uses, and "any other information required by (the state Bureau of Criminal Identification and Investigation) without limitation."
"How does anyone know what telephone numbers he might use?" Schneider wrote. "Most troubling is the open invitation to BCI to add additional requirements without limitation."
Although Schneider's ruling applies only to Toles, Skendelas expects it to be "persuasive" when other Franklin County judges consider similar cases. The county public defender's office is handling more than 500 challenges to the law, he said.
Read this court decision here, or here.
Court of Common Pleas, Franklin County Ohio, Judge Schneider (9 Sept 2008):
The issue before the court was the plaintiff's requirement to register to satisfy the requirements of the new Adam Walsh Act law (Senate Bill 10), and the County Sheriff's obligation of community notification.
The challenge was based on the constitutional violation of the law with respect to The Ohio Constitution, which prohibits any law from being passed retrospectively (or retro-actively) This prohibition is also included in the Ex Post Facto Clause of the United States Constitution. (see related case State of Ohio v. Cook 1998 )
Judge Schneider found that the law was applied retrospectively but he failed to recognize that the new requirements of reporting were substantive (i.e. punishment, burdensome). This is a failure that has been seen in other courts. Judges are unable to understand the burdensome nature of the new law's reporting requirements.
Judge Schneider did however recognize as burdensome, some of the requirements of the new law which would require reporting of previously-not required information (travel documents, social security number, license plate of vehicles owned or used by offender, where vehicles are parked, photographs of such vehicles, professional licenses or permits, email addresses, telephone numbers, internet identifiers, and "any other information required by BCI (Bureau of Criminal Identification and Investigation) without limitation").
Furthermore, the Judge wrote that the change in classification imposes burden to the offender in restricting their ability to move without stigma and burden. Judge Schneider writes "This court concludes that these requirements constitute a new affirmative disability or restraint".
The Court finds that "the new registration requirements go way beyond the limits of the requirements considered by the Ohio v. Cook court. Pursuant to the Adam Walsh Act, the new registration requirements are much more detailed , much more burdensome and much less narrowly tailored and apply to all classifications of sex offenders. In fact, it is impossible for this Court of anyone else to determine exactly what the requirements are because the statute authorizes "any other information required by the bureau of criminal identification and investigation".
Judge Schneider concludes: "Based on the foregoing, the Court finds that the additional registration requirements beyond frequency and duration ... are clearly punitive in their effect and therefore violate the Ex Post Facto Clause of the U.S. Constitution."
Regarding re-classification, the Court holds "that if a previously convicted sex offender had the benefit of a hearing pursuant to R.C. 2950.09 and was found by a court not to be a sexual predator, the community notification provisions of R.C. 2950.11 do not apply." Judge Schneider continued in writing that "an offender who has been adjudged as not being a sexual predator has an expectation that he could make decisions based on that finding."