Friday, August 22, 2008

But Sex Offenders Say They Have Rights Too

FoxNews.com: Sex Offenders Try to Block Laws Allowing Them to Be ID'd Online.

States across the nation are adopting laws that publicize the names of offenders on the Internet.
But sex offenders say they have rights, too ( Oh really? what a concept ), and argue it's wrong to lump those guilty of minor offenses with the worst offenders. Some are challenging the laws.

"People think that imposing these draconian retroactive laws are a way to keep their children safe," said Margaret McLetchie, an American Civil Liberties Union of Nevada lawyer. The laws, which they say are unconstitutional, were tailored to meet standards under the Adam Walsh Child Protection and Safety Act, which President Bush signed in 2006.

Nevada was among the first to pass the laws that would allow the state to post on the Internet the names, photos, home and work addresses and vehicle descriptions of offenders who've served probation or prison sentences on convictions as far back as 1956.
McLetchie said the measures mix serious sex offenders with people convicted of misdemeanors such as public nudity and could subject them to violence from neighbors who see their names and photos.

"These laws don't provide public safety, they only demonize a particular group," she said.

Implementation has been challenged in some states, including Florida and Ohio. "We've objected since it was first introduced in the Legislature," said Amy Borror, spokeswoman for the Ohio public defender's office in Columbus. "We believe it's unconstitutional when it's applied retroactively. Even going forward, it's bad policy." Borror noted similarities between the Ohio and Nevada laws, and said officials in Ohio were watching the Nevada case with interest.

The Ohio registry went into effect Jan. 1 despite objections that it punished offenders twice, broke plea deals and represented a violation of states' rights by Congress. Furthermore, by creating the registry, the state Legislature usurped powers reserved to the courts, Borror said. "We used to have a system where a judge made a decision about an offender's risk to re-offend," she said. "Now it's based only on the offense that they're convicted of, not on any future risk."

The federal law sets a July 2009 deadline for enactment, and threatens states with the loss of federal grant money if they fail to adopt it. In Nevada, officials told lawmakers the state stood to lose $300,000 a year if they failed to adopt the law.

Langford said he believed Nevada lawmakers knew the law would change the lives of convicted offenders, but didn't consider the breadth of the measures or the increased costs of enforcing them (...in other words, it will costs states far more to defend , enforce and implement than they would have lost had they failed to enact the laws) .

The plaintiffs claim the law is broad enough now to apply to a wide range of offenses ranging from child molestation to rape to theft of a pornographic magazine from a store.

Offenders complain that reclassification is unfair.

One plaintiff, identified as Doe 2 in court documents, said neither he nor his attorney at the time understood that lifetime supervision would apply after he pleaded guilty in 2001 to a sex offense, or that he would continue to be banned from going to parks or schools. "I was not told that there would be any restrictions on me whatsoever after I was done with probation."

Sunday, August 17, 2008

Dilution of a Sex Offender

dailycamera.com - The dilution of a sex offender: Making the term apply to non-sex-offenders a scary proposition.

The term "sex offender" has the tendency to strike fear in parents' hearts, cause countless Web sites to track registries (complete with searchable maps), and inspire the citizenry to distribute fliers and call public meetings. And we're not making light of any of it.

That's why diluting the term by adding a whole host of criminals to the database is a scary proposition indeed.
And that includes naked priests.

This week, a court declined to downgrade the conviction of Rev. Robert Whipkey, 53, to a petty offense of public indecency. Whipkey, a Catholic priest was charged with indecent exposure after being caught running naked around the Frederick High School track last June. Whipkey will be sentenced in October. He faces possible jail time and registering as a sex offender.

There are problems with sex offender registries going on in Colorado and nationwide right now.

When our courts add, say, a 18-year-old student who has consensual sex with his 16-year-old girlfriend in Georgia, or a man running naked around a Weld County school track at 4:30 a.m., they risk making the term obsolete, or at least weaker than it should be.

When you hear the term "sex offender" do you immediately think there's a risk to area children -- or does your mind start to wander toward how the term applies to a broad base of crimes, including streaking and urinating in public?

That's not to say these things are not crimes, because they are. Running around in the buff is illegal, and so is statutory rape, even when it's consensual. Lumping all of these crimes into the sex offender registry is, however, offensive.

All of it is available online, as well, thanks to a Supreme Court ruling. And some web sites have searchable maps. Sometimes they are rich with detail, including profile pictures. But they are often short on facts: Such as with what, exactly, the person was charged.

Information is a good thing, but it's incomplete. Individuals can obsess about which registered offenders may be close to their neighborhoods and parks, but our children would be safer if parents and guardians focused even closer to home. In the vast majority of abuse cases, the abuser is a close friend or family member. Looking for signs of abuse and talking about it with our kids is a better strategy than clicking on any map.
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Incidentally, this is also what is happening in many states which are beginning to post online registries which list offenders of non-sex-related crimes, such as animal abuse, drug crimes and murder. All of this results from the ridiculous new Adam Walsh Act laws being enacted all over the country in response to political correctness.


Federal lawsuit challenges Alabama sex offender registration law

AL.com Birminghamnews: Federal lawsuit challenges Alabama sex offender registration law, claiming indigent sex offenders are being jailed for not being able to provide proof of residence. Sunday, August 17, 2008

A federal lawsuit is challenging the state's Community Notification Act, contending it violates the rights of poor sex offenders who have served their sentences, but are jailed because they cannot provide a valid residence.

The suit, filed in Birmingham's federal court on behalf of three named plaintiffs and similarly situated individuals, said indigent offenders have a hard time finding somewhere to live as a result of the law, which requires sex offenders to give authorities a valid address. If they don't provide an address to authorities, it's a felony. The law also places restrictions on where a sex offender can live. Under the law, a sex offender can't live within 2,000 feet of a school or child care facility.

Josh Bearden, an assistant Alabama attorney general, said there have been a number of constitutional challenges to the Community Notification Act, nationally and in Alabama.

The suit said poor offenders are penalized and jailed after they have served their original sentence if they can't provide a valid address. The suit names Jefferson County Sheriff Mike Hale and the sheriff's office as defendants. The suit seeks to have the process of jailing indigent sex offenders and the Community Notification Act as it relates to indigent offenders declared unconstitutional. The suit contends the sheriff's office automatically jails poor sex offenders without a hearing to determine indigence.

Hale said any convicted sex offender who does not comply with the law should be jailed. Hale said his deputies go out and check addresses to make sure they are verifiable residences. Hale said he has no sympathy for convicted sex offenders. "I'm not going to help get a sex offender a place to live," he said.

The Community Notification Act for sex offenders became law in 1996. The intent was to let law enforcement and the public know where sex offenders live because they are considered at high risk to repeat their crimes.
The lawsuit said the sex offender law, however, has the unintended effect of causing indigent sex offenders to live on the streets, under bridges, in tents or in trailers without registering because they cannot find an approved residence. "We're creating an underclass of sex offenders we will not be able to find," Fonteneau said, adding she believes the process is happening in other places




Saturday, August 16, 2008

NV Sex Offender Laws Face Court Challenge

AP: Sex offender laws in Nevada face court challenge

LAS VEGAS (AP) — Eager to protect children from sexual predators, Nevada and other states across the nation are adopting laws that publicize the names of offenders on the Internet.
But sex offenders say they have rights, too, and argue it's wrong to lump those guilty of minor offenses with the worst offenders. Some are challenging the laws.

"People think that imposing these draconian retroactive laws are a way to keep their children safe," said Margaret McLetchie, an American Civil Liberties Union of Nevada lawyer.
Nevada was among the first to pass the laws that would allow the state to post on the Internet the names, photos, home and work addresses and vehicle descriptions of offenders who've served probation or prison sentences on convictions as far back as 1956.

McLetchie said the measures mix serious sex offenders with people convicted of misdemeanors such as public nudity and could subject them to violence from neighbors who see their names and photos.

"These laws don't provide public safety, they only demonize a particular group," she said.

U.S. District Court Judge James Mahan is scheduled to hear arguments Sept. 10 in the Nevada lawsuit. He is being asked to make permanent a temporary ban he imposed that stopped the law from taking effect July 1. Mahan has expressed concerns that if Nevada posted its list of 4,941 people convicted of sex crimes since 1956, there would be no way to restore their privacy if the law was later found to be flawed. Once posted, the judge said, "the cat's out of the bag."

His ruling is expected to be watched closely in states that have adopted or are considering provisions of the Adam Walsh Act. Implementation has been challenged in some states, including Florida and Ohio.

"We've objected since it was first introduced in the Legislature," said Amy Borror, spokeswoman for the Ohio public defender's office in Columbus. "We believe it's unconstitutional when it's applied retroactively. Even going forward, it's bad policy."

Borror noted similarities between the Ohio and Nevada laws, and said officials in Ohio were watching the Nevada case with interest.

The Ohio registry went into effect Jan. 1 despite objections that it punished offenders twice, broke plea deals and represented a violation of states' rights by Congress. Furthermore, by creating the registry, the state Legislature usurped powers reserved to the courts, Borror said.
"We used to have a system where a judge made a decision about an offender's risk to re-offend," she said. "Now it's based only on the offense that they're convicted of, not on any future risk."

The federal law sets a July 2009 deadline for enactment, and threatens states with the loss of federal grant money if they fail to adopt it. In Nevada, officials told lawmakers the state stood to lose $300,000 a year if they failed to adopt the law.

Langford said he believed Nevada lawmakers knew the law would change the lives of convicted offenders, but didn't consider the breadth of the measures or the increased costs of enforcing them. "Nobody wants to say they're for sex offenders," Langford said.

The plaintiffs in the Nevada lawsuit include a construction company manager, a tow truck operator and a grandfather, according to court documents. They are not identified by name.

Most say in court documents that they served sentences ranging from probation to prison time in plea agreements that predated passage of laws redefining a sex offender. The plaintiffs claim the law is broad enough now to apply to a wide range of offenses ranging from child molestation to rape to theft of a pornographic magazine from a store.

One plaintiff, identified as Doe 2 in court documents, said neither he nor his attorney at the time understood that lifetime supervision would apply after he pleaded guilty in 2001 to a sex offense, or that he would continue to be banned from going to parks or schools. He said he fears for his family's safety and his job if he is identified publicly as a sex offender. "I have done everything I can to comply with the law, and be a good citizen," he says in the affidavit. "I would never hurt anyone. But none of that matters now."

Thursday, August 14, 2008

4000 Ohio Sex Offenders Challenge Law

sexoffenderissues.blogspot.com: OH Nearly 4000 Sex Offenders Challenge New Rules

WBNS TV Columbus: Updated: Thursday, August 7, 2008 7:21 AM

Nearly 4,000 convicted sex offenders in Ohio are challenging a bill that would redefine the way they are classified.

10TV News talked to a convicted sex offender, who asked not to be identified, who pleaded guilty to rape when he was 29 years old.

"I made a mistake," the man said. "Every day I pay for it, every day."

The man, now 56, has served time behind bars, completed counseling and was about two years from not having to register as a sex offender, 10TV's Andy Hirsh reported.

"It's almost there," he said. "The nightmare would be over."

He recently received a letter from the attorney general's office informing him that he was reclassified as a Tier III sex offender, the most severe type under the new law. It requires him to register his address every 90 days for the rest of his life. The man is also subject to community notification wherever he lives, works or goes to school.

"I started crying," the man told 10TV News. "I just couldn't believe it."

Nearly 4,000 other sex offenders across the state are challenging the new law, claiming they are being punished a second time for their crimes.

"They're saying, 'Hey, I entered my plea of guilty under these conditions, these rules, and now you're enhancing them,'" said Franklin County Judge Charles Schneider.

Schneider is one of many judges in the state trying to determine if it is fair, Hirsch reported.

"Is it constitutional to change the rules as to this individual, from those that applied when he or she entered their plea?" Schneider said.

The sex offender 10TV News talked to said no.

"I'm being punished again, after my sentence is over," he said. "I'm being punished every day."

Schneider said he expects to have his decision on Senate Bill 10 cases by the end of August. It would be the first ruling in Franklin County. An appeals court in northern Ohio has ruled the new law is constitutional.

Link to read decision: http://opd.ohio.gov/AWA_Attorney_Forms/AWA_RichlandCo_Sigler_decision.pdf

This is a good thing, but there are nearly 30,000 sex offenders in Ohio and all 30,000 must challenge! Get off your duffs!

OH County Judge Finds AWA Unconstitutional

CentralOhio.com: Richland County judge finds Ohio sex offender law unconstitutional

MANSFIELD : Richland County Common Pleas Judge James DeWeese found in favor of the Mansfield man’s appeal Monday, ruling that retroactive reclassifications are unconstitutional in the state of Ohio.

According to James Mayer III, Sigler’s latest attorney, DeWeese is one of the state’s first judges to issue a ruling among hundreds of appeals filed since the Ohio Attorney General’s office reclassified all sexual offenders.

Under the mandate of the Adam Walsh Act, states must fully comply by July 2009 or face a 10 percent cut to their share of federal grant funds used to fight crime — funding that suffered a 67-percent cut in 2007.

Mayer believes other defense attorneys across Ohio will use DeWeese’s ruling in arguing for their own clients.



In reclassifying him under the new law, the Ohio attorney general considered only the level of crime he pleaded to, rather than actual details, Mayer said.

The retroactive reclassification to Tier III meant Sigler would have to register with the sheriff’s department every 90 days for the rest of his life, instead of once a year for 10 years — or face felony charges. It also meant the Richland County Sheriff’s Department would mail notification cards to every address within a mile of Sigler’s residence.

Sigler’s name would be added to a national sex offender registry under the Walsh Act, but that portion of the law was ruled unconstitutional by a federal judge in Florida last April. Currently, Sigler is identified as a sex offender on a registry kept by the Richland County Sheriff’s office and the state of Ohio.

After his reclassification appeared online early in 2008, coworkers and neighbors looked at him much differently, Sigler said.

In his ruling Monday, DeWeese said it is appropriate to use the new classifications for people convicted in new cases, but it violates the Ohio Constitution to retroactively change a sentence a court previously decided.

In his ruling, the judge noted the Walsh Act has resulted in more than half of the county’s sex offenders being reclassified as Tier III offenders.

Sigler said his classification is a crucial issue.

Tier I, he explained, “means usually that you’ve made one mistake in your life. You made a bad choice. You chose to do something wrong, and you’re paying for it."

Those labeled Tier II are considered habitual offenders, but not necessarily predators.

“I don’t think we’re going to know how this will play out for some time. But I do feel strongly that Judge DeWeese got it right.”



Monday, August 11, 2008

New York May Weigh Sex Offender Act

NYSun.com: New York May Weigh Sex Offender Act

The state Legislature must decide in its upcoming session whether to enact laws that would bring the state into compliance with a federal sex offender act that puts adolescent sex offenders as young as 14 in a national public registry. The state Senate majority leader, Dean Skelos, intends to comply with the Adam Walsh Child Protection and Safety Act of 2006, a spokesman, Scott Reif, said. It is not clear, however, whether the Assembly will agree to pass the necessary legislation.

Supporters call the Walsh Act a tool to improve monitoring and toughen punishment of sex criminals, while opponents say the law stigmatizes juveniles, does not take risk assessments into account, and would be too costly to implement.

"This is a difficult one, and it's going to take a careful look to see whether or not we are going to do this," Assemblyman Joseph Lentol, a Democrat of Brooklyn who is chairman of the Assembly Committee on Codes, said.

States have until July 2009 to comply with the act or risk losing 10% of the federal money, known as Byrne grants, used for enforcement purposes, according to the Division of Criminal Justice Services. New York State stands to lose about $800,000.

The act, signed by President Bush in July 2006, requires states to submit information on sex offenders to a national public registry; imposes mandatory minimum penalties for the most serious offenses; and mandates civil confinement for sex offenders who are deemed too dangerous to be released from prison.

The state already has a sex offender registry, which it has used for the last 12 years and which lists more than 27,000 offenders, he said. But to comply with the act, New York would have to drop its risk assessment process, which enables the state to determine how long an offender should have to register based on his or her determined threat to society, and to implement a procedure of setting registry requirements based on conviction, the director of the Division of Criminal Justice Services's Office of Sex Offender Management, Luke Martland, said.

New York State also would have to include more people in its registry and add juveniles who have been adjudicated in juvenile court of an offense comparable to or more severe than aggravated sexual abuse, Mr. Martland said. Currently, the records of most juvenile sex offenders in New York are sealed and juveniles are not put in public registries, he said.

"Common sense would tell you that having your name, picture, and home address on the Internet as a sex offender at age 8, 12, or even 14 could be devastating in terms of peer relationships, community [relations], ability to stay in school, and involvement in church activities," a co-director of the Adolescent Sex Offender Treatment Program at the University of Oklahoma Health Sciences Center, Barbara Bonner, said.

Saturday, August 9, 2008

NY Sex Offender Registry Lawsuit Sets Precedent

Newsday.com: Sex offender's suit over registry change dismissed- 8 Aug 2008

Is a sex offender registry a tool for community safety, or punishment by public shame?

A lawsuit filed against New York State last year by a convicted sex offender, which was dismissed in federal court in Central Islip on Monday, argues that the registry can be abused as punishment instead of its original public service purpose, and that extending the registration period is a violation of constitutional rights.

The offender, a Brookhaven resident who was given the pseudonym "Alan Woe" in court papers and who agreed to speak on condition of anonymity, had sued over a 2006 change that extended the length of time sex offenders must register. The change, the suit argued, unfairly deprived them of due process.

The registration time for Level 1 offenders was increased from 10 to 20 years, while Level 2 and 3 offenders are now registered for life. Level 2 offenders may petition for removal from the registry after 30 years.

The changes were enacted three days before the man, a Level 1 offender, would have reached 10 years on the registry, according to the lawsuit.

On Monday, U.S. District Judge Leonard Wexler dismissed the lawsuit, ruling that the Level 1 offender did not have a right to have a 10-year period on the registry. Wexler noted that Level 3 and 2 offenders can petition to be downgraded to Level 2 and 1, respectively.

It is this potential "door-opening," said the lawyer who filed the suit, that counts as a victory because it possibly could give Level 1 offenders the right to petition to be removed from the registry before a 20-year period ends.

"For the first time, this judge's decision holds that sexual offenders have constitutional rights and that those rights can be enforced in court," said John Ray, the offender's lawyer, at a news conference at his Miller Place office yesterday.

Sunday, August 3, 2008

First Appellate Court to Rule on SORNA Challenges

Eighth Circuit Becomes First Appellate Court to Rule on Constitutional Challenges to SORNA

sexcrimes.typepad.com: August 01, 2008

The Eighth Circuit became the first appellate court to render an opinion regarding some of the constitutional challenges against SORNA. The Court reviewed claims concerning the non-delegation doctrine, the Ex Post Facto Clause, the Commerce Clause, and procedural due process. Since the court focused on the Ex Post Facto claim, I will address its arguments on that challenge below. This is the key part of how the court resolved the ex post facto claim in United States v. May:

May contends SORNA does not apply to him because his travel in interstate commerce, although occurring after SORNA’s enactment, occurred before the Attorney General issued an interim ruling designating the applicability of SORNA to offenders convicted before SORNA’s date of enactment....

The district court predominantly relied on the United States Supreme Court’s decision in Smith v. Doe, 538 U.S. 84, 89-90, 105-06 (2003), in which the Supreme Court held the Alaska Sex Offender Registration Act was civil and nonpunitive, and thus its retroactive application did not violate the ex post facto clause. We recognize, as did the district court in Beasley, “the issue is very different [than in Smith]. It is whether imposing criminal penalties for traveling to and residing in a new state and not registering as a sex offender in that new state at a time before the Attorney General issued his interim regulation violates the Ex Post Facto Clause.” Beasley, 2007 WL 3489999, at *3. If a defendant, like May, is not even subject to the Attorney General’s regulation under § 16913(d) (which we have already determined), then neither the promulgation of the regulation nor § 16913(d) would present an ex post facto clause problem in such a case. To the extent May challenges the overall applicability of SORNA, the ex post facto framework outlined in Smith leads to the conclusion SORNA does not violate the ex post facto clause.

The court's opinion is a bit confused on this point. Since I haven't seen the briefs, I'm not sure if this confusion was derived from the party's construction of the ex post facto issue. There are three potential ways that a SORNA case can be retrospective: 1) the prior sex offense conviction which was the only retrospective component in Smith; 2) interstate travel before the passage of SORNA (or the Attorney General’s statement on retroactivity); and 3) failure to register before the passage of SORNA (or the Attorney General’s statement on retroactivity). In this case, because the Eighth Circuit disagrees with the Eleventh Circuit's statutory interpretation of SORNA, the second and third issues do not apply. However, like most district courts who have reviewed similar claims, the Eighth Circuit does not address the first issue - whether the defendant's prior sex offense conviction, which is a necessary element of the crime, makes the indictment retrospective. I think this omission is notable because the inclusion of the prior crime was sufficient for the USSC to conclude in Smith that the Alaska statute was retrospective (538 U.S. at 90).

Having decided that the statute was not retrospective, the Eighth Circuit could have stopped its analysis. However, the court continued on and turned to the question of whether the statute was punitive in intent:

Congress stated its purpose in establishing a comprehensive national system for registration of sex offenders was “to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators.” 42 U.S.C.A. § 16901. As was the case in Smith, SORNA’s registration requirement demonstrates no congressional intent to punish sex offenders. Congress described SORNA as a public safety measure. See § 16901.

This portion of the opinion is just mistaken (although it is a mistake that most of the district courts have made as well). How can the court conclude that, "SORNA’s registration requirement demonstrates no congressional intent to punish sex offenders" when the statute included a term of imprisonment for violation from 1 to 10 years? The crime of failing to register at 2250(a) was placed within the criminal code and is clearly intended to be punitive. This is a very different case than in Smith where the court was not reviewing the modest criminal penalties attached to the Alaska statute (538 U.S. at 101-02). Simply describing SORNA as a "public safety measure" does not remove the clear punitive intent of Congress. If future courts follow the same logic, any criminal provisions could be considered non-punitive in intent simply be appending the one-sentence SORNA statement of purpose.

The Eighth Circuit also decided that the statute's effects were not so punitive as to override the non-punitive intent. Unfortunately, the court does not revisit the seven Mendoza-MartinezSmith. Having done so, I think a court should conclude that the effects are much more punitive than the Court reviewed in Smith. factors as the court did in Smith.

I am disappointed that the first circuit opinion on SORNA's constitutionality has followed the mistaken lead of most district courts. As I argue in my new article, prosecutions under 2250(a) likely violate the Ex Post Facto Clause, deny defendant's procedural due process under Lambert, and represent an unconstitutional use of federal power that cannot be supported by the Commerce Clause.

References:

Sexcrimes.typepad.com: AWA -SORNA Case Summaries

Sexcrimes.typepad.com: Adam Walsh Child Protection and Safety Act