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.