Tuesday, March 31, 2009
(Janis Wolak, David Finkelhor, Kimberly Mitchell)
• Between 2000 and 2006, there was a 21% increase in arrests of offenders who solicited youth online for sex. During the same time, there was a 381% increase in arrests of offenders who solicited undercover investigators (UC) posing as youth.
• In 2006, of those arrested for soliciting online, 87% solicited undercover investigators (UC) and 13% solicited youth. (this can only indicate that undercover investigators were actively urging-on the solicitations)
• During the same period that online predator arrests were increasing, overall sex offenses against children and adolescents were declining, as were overall arrests for such crimes.
• Arrests of online predators in 2006 constituted about 1% of all arrests for sex crimes committed against children and youth.
• During the interval between the two studies (2000 ‐ 2006), the percentage of U.S. youth Internet users ages 12‐17 increased from 73% to 93%.1,2
• Although arrests of online predators are increasing, especially arrests for soliciting undercover law enforcement, the facts do not suggest that the Internet is facilitating an epidemic of sex crimes against youth. Rather, increasing arrests for online predation probably reflect increasing rates of youth Internet use, a migration of crime from offline to online venues, and the growth of law enforcement activity against online crimes.
• The nature of crimes in which online predators used the Internet to meet and victimize youth changed little between 2000 and 2006, despite the advent of social networking sites. Victims were adolescents, not younger children. Most offenders were open about their sexual motives in their online communications with youth. Few crimes (5%) involved violence.
• There was no evidence that online predators were stalking or abducting unsuspecting victims based on
information they posted at social networking sites.
• There was a significant increase in arrests of young adult offenders, ages 18 to 25. • Few of those arrested for online predation were registered sex offenders (4%).
Jefferson City, Mo. -- The Missouri Senate has voted to require sex offenders convicted before 1995 to register with the state.
The state Supreme Court has ruled that the registry law does not apply to those people because the law took effect in 1995 and the state Constitution prohibits laws from being applied retrospectively.
Senators gave initial approval to a proposed constitutional change that would carve out an exemption for the registry law. The change would also retrospectively apply a prohibition on sex offenders living near schools and a requirement of felons to submit DNA samples.
Connecticut State Republican Senator Dan Debicella apparently hasn’t heard of the Federal constitution, or doesn’t care that it exists. That can be the only logical explanation for his sponsorship of this bill, which effectively overrules Kennedy v. Louisiana.
For those of you with extremely short memories , Kennedy (U.S. Supreme Court 2008) held that:
“[t]he Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.
According to the Court, “[t]he death penalty is not a proportional punishment for the rape of a child.” The opinion, which was joined by the court’s four more liberal judges, went on to state, “The court concludes that there is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but in terms of moral depravity and of the injury to the person and to the public, they cannot compare to murder in their severity and irrevocability.” The opinion concluded that in cases of crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.”
Now that seems pretty cut and dry, unless of course, there is some argument that the Federal Constitution applies to Louisiana but not Connecticut, because Connecticut was never a part of the United States due to some error back in the day and hence is its own duchy.
Either that, or Debicella got some bad advice. Thankfully, the rest of the legislators in the judiciary committee seem to have heard of Kennedy, since there’s been no action on the bill since it’s proposal in January.
Proposed Bill No. 213
Convicted sex offender Jeni Lee Dinkel won’t be allowed to attend her son’s high school graduation this May. In a March 24 letter, school officials told Dinkel, a 53-year-old mother of two, that Covington Catholic High School and the Diocese of Covington won’t allow her to attend graduation events with her family. Those include the Mass, the baccalaureate luncheon and commencement.
Nearly two years ago, Dinkel, the wife of former Bengals linebacker Tom Dinkel, pleaded guilty to one count of third-degree rape for having sex with a 15-year-old friend of her son, Alex. She was sentenced to 60 days in jail, given probation for five years and ordered to register as a sex offender for 20 years in May 2007.
The letter from Covington Catholic High School Principal Robert J. Rowe and Margaret Schack, chancellor of the Diocese of Covington, is in response to Dinkel’s Feb. 13 letter informing school officials that she had permission from her probation officer to attend Covington Catholic High School’s graduation events in May.
Her son, Alex, has been “fighting for his life.” Alex Dinkel has battled cancer.
...The charges that may be leveled against the teens are serious as the forwarding of such a video, also known as "sexting," is a felony offense. "Some of the kids involved could be looking at possession of child pornography, dissemination of child pornography. There's also the possibility of statutory rape and if there's any audio discovered on the video there's also the possible charge of wiretapping," Mitchell said.
Because of the Adam Walsh Act, these children could be listed as registered sex offenders for life.
Monday, March 30, 2009
One of the more disturbing provisions being considered by the Lege in adopting the Adam Walsh Act here in Connecticut:
(d) Any person who is a registered sexual offender under the laws of any other state who enters this state and fails to notify the Commissioner of Public Safety in writing not less than forty-eight hours prior to entering the state of the information required under this section or falsely reports such information shall be guilty of a class D felony.
Oh yes. There is nothing missing from that sentence. If you were looking (and correctly so) for a qualifying clause in that language that required an individual to establish a residence here before being subject to “registration” you didn’t find it because it’s not there. It’s in the proposed subsection (c).
Subsection (d), that I just quoted above, mandates that anyone entering the State, for whatever reason, notify Public Safety 48 hours in advance. This is so silly it’s scary. There are no exceptions for emergencies or unplanned trips or anything. At all.
So if you’re required to register in CA, and are driving through from Yankee Stadium to Fenway Park to see the Yankees play the Red Sox and you take I-95 or the Merritt or I-91 or I-84 (all of which pass through Connecticut), you have to call public safety.
Read text of Connecticut General Assembly Governor's Bill No. 6384 bill here:
Sec. 5. Section 54-253
A federal judge on Monday allowed a class-action case seeking to overturn Georgia’s tough sex offender law to go forward. The judge also barred enforcement of a provision that bans offenders from volunteering at churches.
U.S. District Judge Clarence Cooper rejected attempts by the state to declare the class-action suit on behalf of 16,000 sex offenders to be unmanageable. Instead, Cooper allowed the lawsuit to proceed in “subclasses.”
These include offenders seeking to overturn a provision banning them from living within 1,000 feet of a designated school bus stop; offenders who want to volunteer at places of worship; and offenders who were convicted before the law’s passage on July 1, 2006, but were put on the sex offender registry.
“Allowing plaintiffs to continue to participate in their faith communities will further public safety by providing support, stability and a grounded sense of right and wrong,” Cooper wrote. Lawyers representing the plaintiffs presented evidence from several ministers and others who work with sex offenders about the restorative powers of faith and volunteering in faith communities, Cooper said.
“Georgia’s sex offender law has suffered more legal setbacks than any such law anywhere in the country,” he said. “This order should send a clear message to the General Assembly that it’s time to fix this law.”
A federal judge this week granted a preliminary injunction that overturns a provision of Georgia’s sex offender law. The provision imposed by state lawmakers prohibited registered sex offenders from volunteering in churches.
Councilman Eric Gioia is adamant about where New York's most dangerous pervs should not live - city housing projects. But when asked to suggest neighborhoods where they might reside he couldn't come up with a single suggestion.
"I don't think government should be telling people where to live," Gioia offered.(So government should only tell sex offenders where to live? This guy sounds like a real Rhodes Scholar; he doesn't understand the difference between a sex offender and a predator)
Sunday, March 29, 2009
The US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] Thursday that a South Carolina law [SC Code §§ 23-3-600 et seq. text] requiring convicted first degree sex offenders to submit to a DNA test and pay $250 in processing fees prior to their release does not violate the ex post facto clause [text] of the Constitution. Anthony Eubanks, convicted of criminal sexual conduct in the first degree in April 1995, brought the action against the South Carolina Department of corrections, challenging the constitutionality of the provisions, which took effect in July 1995. In a narrowly tailored ruling, a three-judge panel upheld the district court's grant of summary judgment against Eubanks, holding that the state DNA Identification Act did not violate the ex post facto clause because DNA gathering was a regulatory, not punitive function. The court also held that the $250 fee was a relatively small sum suggesting that it "was not intended to have a significant retributive or deterrent" function. The court was more troubled by a provision that allowed South Carolina to garnish prisoners' wages to pay the $250 fee but avoided ruling on the issue as the appellant had not brought a due process claim. Finally, the court found that the statutory requirement that the prisoner must pay the $250 fee before he is paroled or released is unenforceable against Eubanks, as this provision is severable from the rest of the statute.
This case is the third instance that a court has held that the South Carolina DNA statute does not violate the ex post facto clause. Two South Carolina Court of Appeals rulings previously held that the law was constitutional, including one case decided [opinion] in June. Federal DNA collection laws have also withstood recent constitutional challenges. In 2007, the US Court of Appeals for the Ninth Circuit upheld [JURIST report] an amendment to the DNA Backlog Elimination Act [JURIST report] that required all felons in federal prison to submit DNA to a national database available to police departments throughout the country. In 2005, the US Court of Appeals for the Third Circuit upheld the constitutionality of an FBI DNA database, and the New Jersey Court of Appeals upheld a state DNA database for convicted criminals.
After a strong district court opinion finding that SORNA was an unlawful exercise of federal power under the Commerce Clause, I was optimistic that the 11th Circuit might be the first circuit to reach a similar holding. However, after a panel the other week decided the issue based upon meager briefing on the issue, the outcome in Powers was inevitable. In a brief opinion, the 11th Circuit found for the government and reversed the district court:
In United States v. Ambert, __ F.3d __, No. 08-13139, 2009 WL 564677 (11th Cir. March 6, 2009), this Court held both the registration provisions set forth at 42 U.S.C. § 16913 and the failure to register offense set forth at 18 U.S.C. § 2250(a) do not violate the Commerce Clause. Id. at *8-9. We concluded § 2250 falls within Congress’s power to regulate “both the use of channels of interstate commerce and the instrumentalities of interstate commerce.” Id. at *8. We also concluded “the requirement that sex offenders register under § 16913 is necessary to track those offenders who move from jurisdiction to jurisdiction.” Id. at *10.
Ambert controls here. The district court erred in dismissing the indictment against Powers on the ground that SORNA exceeded Congress’s authority under the Commerce Clause. Accordingly, we vacate the order of the district court and remand for reinstatement of the indictment.
In 1971, Richard Nixon declared the War on Drugs in America. However, the laws enabling that criminal war had been enacted years before Nixon’s speech officially recognized the new conflict. By 1968, Lyndon Johnson had established the Bureau of Narcotics and Dangerous Drugs (the predecessor organization to the Drug Enforcement Agency) to lead the charge against domestic drug use and distribution. The next year, efforts to limit drug smuggling along the Mexican border culminated in Operation Intercept which nearly closed the border entirely. When Nixon took over the Presidency, he signed into law the Comprehensive Drug Abuse Prevention and Control Act which established the categorization system for regulating narcotics. Perhaps the clearest sign that something was afoot even before Nixon’s speech was that the anti-drug-war group, The National Organization for the Reform of Marijuana Laws (“NORML”), was founded to counter the shifting policy priorities of the criminal justice system. By the time of the official declaration, the War on Drugs was already underway.
So, when did the "war" actually start? In an era when foreign wars are not even truly "declared" anymore, perhaps it is not surprising to think that a criminal war might be underway without a specific statement from the federal government. In a paper I have been working on for a while that I will be presenting at the Law & Society Conference, I contend that a criminal war on sex offenders may have already begun. We are, thus, in a period like that in the late 60's and early 70's wherein the conflict has started even if the government has not yet acknowledged it.
In reviewing America's history of criminal wars, I have identified three major characteristics of those conflicts. The first two are essential prerequisites for the war to begin and the third is a sign that it is underway. First, there must be a substantial campaign of myth creation. For the war on drugs, movies like Reefer Madness embodied the misinformation that was propagated to support government policy against drugs. In regards to the nascent war on sex offenders, there are already developed myths of the prevalence of stranger rape, of child molesters lurking in the bushes, that offenders cannot be "cured" based upon faulty recidivism statistics, and of the collective nature of the class "sex offenders." Second, there must be a significant marshalling of resources in proportion to the perceived threat. For sex offenders, policy innovation has created an environment at the federal, state, and local levels whereby offenders have a significant weight upon them. Lifetime registration, residency restrictions, civil commitment, lifetime real-time GPS monitoring, castration, community notification, and work restrictions are just a few of the policies that have targeted sex offenders. The treatment of offenders seems out of proportion given that previously convicted and released sex offenders are only responsible for a small portion of sex crimes. However, the marshalling of resources is still incomplete. The Adam Walsh Child Protection and Safety Act, the most significant piece of federal sex offender legislation, has not been fully funded to enforce its various provisions. Perhaps with the economic downturn and a new administration, the focus of criminal justice resources on sex offenders might yet dissipate.
Third, and importantly for non-sex offenders, an inevitable result of criminal wars is exception-making to various protected rights. The drug war has arguably limited the rights protected under the First, Second, Fourth, Fifth, Fourteenth, Sixth, and Eighth Amendments. Further, federal authority has expanded well beyond the previous reaches of the Commerce Clause. These "exceptions" to prior doctrine have had long-term implications outside of the drug war. Similarly, the war on sex offenders through registration laws has limited due process rights, changed Ex Post Facto doctrine, and further expanded the federal reach under the Commerce Clause. Residency restrictions have revived banishment as punishment in a way that is detrimental to basic aspects of American democracy. Other punishments have already curtailed First, Fifth, Fourteenth and Sixth Amendment protections.
So, based upon those criteria, I think a strong case that a war on sex offenders has already begun. There is a chance that through court decisions, state noncompliance with the Adam Walsh Act, or failure to fully fund the various sex offender laws, that the war could falter. However, based upon the politics of crime, it seems likely that America has started a new war on the criminal front.
As a 14 year old girl awaits trial for sex crimes after posting naked photos of herself on MySpace, Maureen Kanka, the force behind the creation of Megan's Law, is speaking out. Kanka does not want teens who take photos of themselves naked to be turned into sex offenders by overzealous prosecutors.
In New Jersey this week, a 14 year old girl was arrested and charged with possession of child pornography, as well as distribution of child pornography, after she took naked photos of herself and posted them on the social networking site, MySpace. Her intention was to share them with her boyfriend. Investigators suggest the girl "knowingly" committed a crime by posting the photos, although they won't say anything more while the investigation continues. The 14 year old girl could face 17 years in prison and would be required to register as a sex offender for the rest of her life. The girl is now in the custody of her mother.
According to an Associated Press report published in the Seattle Times, Kanka, also a New Jersey resident, is horrified with the way prosecutors are using the law created in her daughter's name. Kanka's daughter, Megan, was raped and killed at age 7 by a twice-convicted sex offender. Megan's Law, which came about after the horrific crime, requires sex offenders to register in every community they live in and to list their offenses on job applications. Kanka is angry that children who post naked photos of themselves are being charged as sex offenders using Megan's Law.
Prosecutors shouldn't be treating these girls as sex offenders, even if they want to send a message to other kids. The other kids won't get the message- teens believe themselves invincible. Why ruin a child's entire life over a stupid photo? (Yeah, she only wants to ruin the lives of adults who make a mistake!)
Perhaps Ms. Kanka should join us in our fight to reform these laws...
As more and more people are caught up in these sex offender laws, many will eventually be the children of public figures, elected officials and prominent citizens. It can happen to anyone's family member!
Michael Philbin, son of Green Bay Packers offensive coordinator Joe Philbin, pleaded no contest to two misdemeanor counts of sexual intercourse with a child and two misdemeanor counts of battery for the incident. He was sentenced today to six months in jail and 2 ½ years of probation for having sex with two drunken 16-year-old girls at an Aug. 21 house party. State Assistant Attorney General Dennis Krueger said he opted for misdemeanors over more serious felonies after reviewing the evidence gathered during a six-month investigation.
Brown County Circuit Court Judge Sue Bischel, in accepting a joint sentencing recommendation, said by all accounts Philbin was a good person who made a horrible decision. Reading from a pre-sentence report, Bischel said Philbin acknowledged that he took advantage of the girls knowing they had too much to drink.
Bischel also ruled Philbin did not have to register as a sex offender and could petition to have the misdemeanor convictions removed from his record if he completes probation.(WHY NOT?)
Bryan Conrad, 35, works three jobs and has a girlfriend. He lives in Lemoyne. "I'm here," he said. "I'm settled."
But he lives closer than 300 feet from Lemoyne Middle School, a problem for Conrad. He's a registered sex offender.
He's in violation of an ordinance passed by the Lemoyne Borough Council in 2007. The ordinance prohibits registered sex offenders from living within 500 feet of places such as day care centers, parks and schools. Conrad has been living in Lemoyne since October, his house cater-corner from the middle school on a stretch of Market Street.
Conrad is an example of a growing dispute in Pennsylvania. More towns are passing ordinances restricting sex offenders from living near schools and parks, and some towns are being sued over the laws.
As he shoved his hands in the pockets of his sweatshirt, Conrad said he didn't know about the ordinance when he moved in. "Why would I take the chance?" he said. The violation was discovered by a resident. The resident has a son who walks to Lemoyne Middle School each day and said he wanted to remain anonymous to protect himself and his family from any possible retaliation. (anonymous? Perhaps this resident should be posted on an online registry)
Once every couple of months, the resident checks the state's Megan's Law list, a Web site that shows the photos and addresses of registered sex offenders, he said. Megan's Law seeks to protect the public, especially children, from sex offenders by listing their locations and alerting communities to sex offenders in their neighborhoods, according to the Web site.
He brought his concerns to the West Shore Regional Police Department on Wednesday. He stressed that he did not intend to harass Conrad. He just wants to protect his children.
"It was five minutes of stupidity, and I walked away. But it was too late," Conrad said last week.
"Is it ever going to be in the past?" he asked.
Even officials and concerned parents are conflicted about these ordinances.
"That's really a double-edged sword," said Lt. Douglas Grimes, the commander of the state police Megan's Law unit. "There are good things and bad things that come out of these residency restrictions."
Of course, nobody wants a registered sex offender near a school, he said. But too much restriction can concentrate several sex offenders in one area, he said.
"It was a lapse in judgment," Conrad said of his offense. "I pay for it every day, and here I'm going to pay for it again."
(interstate commerce challenge)
In United States v. Ambert , the 11th Circuit reviewed and rejected all of the major constitutional challenges to SORNA prosecutions under 2250(a). I had never heard of this case before, perhaps because the defendant was represented by a private attorney. Here is how the 11th Circuit addressed the Commerce Clause argument:
We have not had occasion to address this issue, although several district courts in this Circuit have done so. Most have found SORNA to be a proper regulation under Congress’ commerce power.... One district court, however, found that SORNA, 42 U.S.C. § 16913 and 18 U.S.C. § 2250, exceeded Congress’ commerce clause authority. United States v. Myers, 2008 WL 5156671 (S.D. Fla. Dec. 9, 2008) (unpublished).... Section 2250 is a proper regulation falling under either of the first two Lopez categories because it regulates both the use of channels of interstate commerce and the instrumentalities of interstate commerce.... Plainly, § 2250 focuses on sex offenders, like the defendant, who travel in interstate commerce. In this focus, SORNA is analogous to a statute prohibiting church-based arson “in or affecting interstate or foreign commerce” upheld by this Court in Ballinger, and to the Mann Act prohibiting the transport of women “in interstate commerce” for an immoral purpose, upheld by the Supreme Court long ago in Caminetti v. United States, 242 U.S. 470, 491 (1917).
Bans turned out to be counterproductive.
Voters will be asked to decide whether their town will join the handful of others in New Hampshire that restrict where convicted sex offenders may live. The voters should say No.
Sex offender residency restriction laws forbid convicted sex offenders from living near child-oriented places like schools or playgrounds. The theory is that if children are out of sight of sex offenders, they will be safe.
At first blush these laws might seem like a good idea. On the surface it makes sense that prohibiting convicted sex offenders from living near a school or playground might deliver them from temptation. But many experts have come to the opposite conclusion: These laws don't protect children and, in fact, might hurt them.
Why is that?
Sex offenders are least likely to re-offend when they reside in stable, supportive environments with friends or family or receive counseling or are closely monitored by probation and parole officers.
Laws that make it difficult for offenders to live with family or near their counselors destabilize them. When offenders are destabilized, they are at greater risk for re-offending.
By design, these laws push offenders out of the majority of affordable housing, forcing them to live in clusters at the outskirts of town. Since the stock of available housing is greatly diminished, many offenders can't find housing at all and are forced to live on the streets or under bridges, as was reported in Florida. Some offenders take the risk of living with their family and not registering.
Iowa was among the first states to enact sex offender residency restrictions. After years of experience with the law, the Iowa County Attorneys Association issued a statement supporting its repeal. The experiment with these restrictions, the county attorneys concluded, was a failure.
The law caused offenders to become homeless, to change residences without notifying authorities of their new location, to register false addresses or to simply disappear. The county attorneys cited offenders' families that "were unfairly and unnecessarily disrupted by the restriction, causing children to be pulled out of school and away from friends, and causing spouses to lose jobs and community connections."
Rehabilitation of offenders was jeopardized, putting the public at greater risk, and the information available to the public on the sex offender registry was unreliable and incomplete.
Victims' groups like the New Hampshire Coalition Against Domestic and Sexual Violence also reject these laws. They recognize that they do little to protect the victims of sexual assault. Molestation of a child by a stranger is extremely rare. How rare? Each year there are 60,000 to 70,000 arrests on charges of child sexual assault, according to the U.S. Justice Department. On average, about 115 of those arrests involve abductions by strangers.
Laws like these divert attention and resources away from the greatest source of abuse - family and close friends - and provide a false sense of security.
There are proven ways to make children safer from abuse. California is home to the nation's largest population of convicted sex offenders.
The California Research Bureau found that "intervention strategies that combine therapeutic treatment, risk assessment, specialized supervision, and global positioning monitoring have some effect on reducing sex offender offenses and recidivism rates." Restricting where sex offenders live does not.
Ohio's Cincinnati-based 1st. District Court of Appeals last Thursday ruled that the state's two-year old law, which strengthened registration requirements for sex offenders to report & keep work & residency information current, can be applied retroactively. [ Court's Decision ]
A Cincinnati Enquirer article this past weekend stated the case would likely be appealed to the state's high court as what's at issue is the continuing confrontation between the rights of convicted sex offenders and those of the public to be informed of the identity of sex offenders and where they live & work.
The article quoted the unanimous decision as stating that "By their voluntary acts (crimes), sex offenders have surrendered certain protections that arguably are afforded other citizens. Their convictions of felony offenses put them in a class that has already been deemed to have no expectation of finality in the consequences of the judgments against them."
Ohio's sex offender notification & registration statutes in pertinence here came into effect in 2003 and were amended by Ohio’s "Laura's Law" bill in 2005. In July 2008, lawmakers passed Senate Bills 10 and 97, bringing Ohio statutes into compliance with federal guidelines mandated by the 2006 Adam Walsh Act.
In last Thursday's case, Jerome Sewell had argued that the retroactive application of Senate Bill 10's tier-classification & registration requirements violated his rights under the Ohio Constitution. For that to have been the case, the First District, following an established binary test from 1988, said that if legislation was intended to be applied retroactively, it had to be "determined whether the statute affected a substantive right or was remedial, and that only if affected a substantive right would it be unconstitutional." Citing the Ohio Supreme Court’s decision in State v. Cook (1998), it then proceeded to explain that "a statute is 'substantive' if it impairs or takes away vested rights, affects an accrued substantive right, imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction, or creates a new right."
"The Cook court also noted that except with regard to constitutional protections against ex post facto laws… felons have no reasonable right to expect that their conduct will never thereafter be made the subject of legislation."
Where Ohio's Supreme Court in Cook examined the 1997 version of Ohio's sex offender notification statutes, State v. Ferguson, last year, examined those from 2003 with similar results. In State v. Williams in 2000, it held that those statutes were neither criminal in their nature, nor inflicting of punishment, and State v. Wilson, in 2007, it reaffirmed that "sex-offender classification proceedings under Revised Code Chapter 2950 were civil in nature."
ORC §2950.03 "Notice of duty to register and periodically verify information" [Effective Date: 07-31-2003; 04-29-2005; 2007 SB10 01-01-2008]
ORC §2950.06 "Periodic verification of current residence address" [Effective Date: 07-31-2003; 2007 SB10 01-01-2008]
ORC §2950.07 "Commencement date for duty to register" [Effective Date: 07-31-2003; 2007 SB10 01-01-2008]
We like Heritage.org for all the work they do in supporting our Constitution. But on this issue, they have it all wrong. They approach this subject with a strong bias and therefore we must add our retorts.
Attorney General Eric Holder gave a speech to the National Association of Attorney’s General this week. In that speech, he renewed the Justice Department’s support for the Adam Walsh Act. The Adam Walsh Act—passed by a wide margin in Congress—requires some convicted sex offenders to register with local authorities. But,to date, Eric Holder’s Department of Justice 2010 budget gives $0 to implementation of the Adam Walsh Act, and $0 to the SMART Office which implements the Act.
There is more to this than meets the eye. It is no secret that there has been a small but vocal liberal chorus of opponents to the Adam Walsh Act. They do not think dangerous sex offenders should have to register with local authorities.
(Wrong; we do think "dangerous" sex offenders should register, but most sex offenders are not dangerous or at substantial risk of re-offending. And we oppose the retro-active application of this law on those who satisfied all conditions of their punishment. Retro-active application of punishment is unconstitutional)
Of course, they know that their opinion is an extreme minority opinion (No, it is a growing opinion).
They also know that no politician will publicly endorse convicted sex offenders. (Yes, this is sadly true)
So, since the Adam Walsh Act passed in 2006, they have adopted a two-prong assault on the Adam Walsh Act.
First, they fought various provisions of the Act in court, attacking the retroactivity and juvenile provisions of the Act. There is nothing wrong with that, as many federal acts are challenged in court.
Second, they are working secretly behind closed doors with key Congressman to gut the primary purpose of the Act entirely—minimum national standards for sex offender registration.
(No, we are working very publicly to reform these laws)
They want to replace the conviction-based registration requirement system with a roll of the dice, so-called “risk assessments.” (In other words, a more fair case-by-case approach?)
Yorkshirepost.co.uk : Photographer prosecuted for fairy 'child porn'.
A naive photographer employed by parents to take pictures of their young daughters to turn into images of fairies has been prosecuted because the photos fell under the definition of child porn. Under the legislation, the images of the two girls – aged 10 and 12 – were classed as level one child pornography, despite the fact their parents had asked for the pictures to be taken and were even present at photo shoots.
By Michael Hungerford
A recent article about the court ruling holding that New York state law pre-empts local sex offender residency laws left out a number of very important points. First, the public safety rationale for the local laws is at best questionable. According to the state Division of Criminal Justice Services, most sex assaults are committed by persons who have no prior sex offense convictions. Since only those who have been convicted are on the state sex offender registry, most who commit sex offenses are not subject to any residency restrictions.
Many if not most sex offenses are committed against adults, not children, who are often used as the main justification for these laws.
In addition, the federal Center for Sex Offender Management notes that the overwhelming majority of sexual assaults against minors are committed by family members, relatives, friends, baby-sitters or others known to the child or family. Again, no residency law will protect against assaults committed by those kinds of offenders, who often live in the very same household as the victim.
In Iowa, prosecutors are now calling for a repeal of a state residency restriction law. They criticize such laws because, among other things, "research shows that there is no correlation between residency restrictions and reducing sex offenses against children or improving the safety of children." The Iowa prosecutors also note that "law enforcement has observed that the residency restriction is causing offenders to become homeless, to change residences without notifying authorities of their new locations, to register false addresses or to simply disappear."
When offenders fail to maintain proper registration as a direct or indirect result of residency restrictions laws, such as those recently passed in Tully and previously enacted in Jordan, Cicero, Cayuga County and Auburn, no one is truly safer. Before spending the taxpayers' time and money on ineffective measures such as these residency laws, our local elected officials should first educate themselves on the facts and not just react to undifferentiated, hysterical fear that does not in fact protect our children.
NACDL Comments on the Attorney General’s Interim Rule Applying the Provisions of the Adam Walsh Act Retrospectively to Offenders Whose Convictions Pre-Date The Enactment of the Legislation.
PDF file here.
CFCAmerica article here.
The NACDL has a membership of more than 12,800 attorneys and 92 state, local and international affiliate organizations with another 35,000 members including private criminal defense lawyers, public defenders, active U.S. military defense counsel, law professors and judges committed to preserving fairness within America’s criminal justice system. In these comments NACDL urges the Attorney General to repeal 28 CFR Part 72 because the regulation, as promulgated, violates the ex post facto clause of the Constitution, and will cause widespread confusion and instability in the efforts of many convicted sex offenders to comply with the law and maintain a non-offending lifestyle.
III. The Interim Rule Violates the Ex Post Facto Clause
28 CFR Part 72, as promulgated, mandates that the provisions of the Sex Offender Registration and Notification Act be applied retroactively to sex offenders whose convictions occurred before the enactment of SORNA and the Adam Walsh Child Protection and Safety Act of 2006. 28 CFR 72.3. The National Association of Criminal Defense Lawyers urges the Attorney General to re-draft the regulation. As written, the regulation violates the ex post facto provisions of Part, I, Article 9 of the Constitution. The supplementary information provided by the Attorney General broadly states that applying SORNA to sex offenders whose convictions pre-dated the enactment of the Adam Walsh Act does not offend the ex post facto provision of the Constitution because it creates “registration and notification provisions that are intended to be non-punitive, regulatory measures adopted for public safety reasons.” 72 Fed. Reg. Vol. 39, 8896. The Attorney General relies on Smith v. Doe, 538 U.S. 84 (2003) for this proposition. In Smith the Supreme Court upheld the provisions of the Alaska Sex Offender Registration Act (ASORA) against an ex post facto challenge. In fact SORNA is a federal statute that is punitive and therefore the ex post facto provision of Article I Section 9 of the Constitution does apply. SORNA goes well beyond the Alaska Sex Offender Registration Act that was considered by the Court in Smith.
a. The Extensive Community Notification Provisions of SORNA Publicly Disgrace and
Humiliate the Registered Offender in His or Her Community
One consideration in determining whether a law is punitive is whether it is the type of law that our history and traditions consider to be punishment because it publicly disgraces the offender. Although ASORA and SORNA are similar in some respects, SORNA goes considerably beyond ASORA in its community notification requirements. SORNA requires that NACDL Comments OAG Docket No. 117 an appropriate state official provide an offender’s registration information to the Attorney General (for inclusion in the federal list) and to appropriate law enforcement and probation agencies. However, SORNA also requires the state to notify 1) “each school and public housing authority in the area in which the individual resides, is mployed or is a student;” 2) “each jurisdiction where the sex offender resides, is an employee, or is a student and each jurisdiction from or to which a change of residence, employment, or student status occurs;” 3) “any agency responsible for conducting employment-related background checks under section 3 of the National Child Protection Act of 1993 (42 U.S.C. 5119a);” 4) “social service entities responsible for protecting minors in the child welfare system;” and, 5) “volunteer organizations in which contact with minors or other vulnerable individuals might occur.” See, SORNA, § 121. These additional community notification measures render SORNA a punitive statute subject to ex post facto constitutional prohibition. In Smith the Court specifically addressed the shaming aspects of publication of registration information on the Internet. The Court described Internet publication
as “more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality.” Smith at p. 99. SORNA provides far more public humiliation and shame than the mere review of criminal records at an archive. It requires the states to take affirmative actions to report the registration information throughout the community, even to those who might otherwise not seek such information. The SORNA requirements are far more akin to a scarlet letter or a wanted poster than they are to a trip to a central registry of government documents. SORNA is far more likely
to inflict public disgrace than the provisions of the Alaska law considered by the Court in Smith. Our history and traditions consider such public disgrace and humiliation as punishment and thus invoke the requirements of the ex post facto clause. The interim rule violates the ex post facto clause because it extends these punitive measures to individuals whose offenses pre-dated the enactment of the statute.
Austin – Registering as a sex offender has made it hard enough for Marc P. to have anything resembling a normal life.
The Dallas County man, who received deferred adjudication more than a decade ago for having sex with a 14-year-old when he was 18, has his address and photo on file for the world to see – not a selling point, he says, for potential employers, landlords or girlfriends.
Now, Texas lawmakers want Marc and other registered sex offenders to also report their e-mail addresses, cellphone numbers and online screen names to the state, and to give social networking sites permission to boot them offline.
Opponents say the legislation would add another layer of data to a state sex offender database that already contains too many inaccuracies. And it would make it even harder for sex offenders who have served their time to participate in modern society. To Marc, now 33, it's simply a higher price than he should have to pay for a one-time mistake.
"What's next, a chip in my brain? A scarlet letter?" asked Marc, who lives with his parents, is attending junior college and feels such a strong stigma against sex offenders that he asked that his last name not be used. "Are they going to look me up on dating Web sites? Check out my Facebook page? Now I'm going to be punished for being computer literate."
Texas' current registry requires sex offenders to report their address, birth date, height, weight and race to local authorities, and to keep an up-to-date photo on file. This information is available to the public on searchable Web sites.
The proposed bill would make it a state jail felony not to also register e-mail addresses, cellphone numbers and other online identifiers, such as screen names and social networking monikers, with the state.
Critics of the proposed expansion of the database also note that the registration system, which contains information on nearly 50,000 Texans, is already riddled with errors and omissions. A 2006 Dallas Morning News review of the registry found it was highly inaccurate: Roughly half of North Texas sex offenders could not be located, and one in six were living somewhere other than their registered addresses.
If the goal is safe communities, human-rights advocates say, convicted sex offenders are far less likely to commit new crimes if they can successfully re-enter the community. Finding safe housing and a good job often requires Internet access, social networking sites and e-mail accounts – all things sex offenders may shy from if they're burdened with registration requirements.
"If we make it so that people just don't want to have online identifiers, it's going to make it even more difficult for them to conduct job searches, to respond to e-mail inquiries about housing," said Sarah Tofte, a researcher with Human Rights Watch. "It will make it next to impossible for them to try to establish some stability in their lives."
Carson City, Nev.—An Assembly panel voted Tuesday to kill a bill that would have changed lifetime supervision requirements imposed on convicted sex offenders, after critics said the changes would violate constitutional due process protections. Under AB36, convicted sex offenders who violated the terms of their lifetime supervision would face a state Parole Board hearing, rather than a court hearing.
Representatives of the Division of Parole and Probation said the bill was needed because the process of getting a court hearing often takes too long, and there are too few consequences on the books for violating lifetime supervision.
But David Smith, executive secretary of the state Parole Board which is separate from the division, opposed the bill, saying it would be more appropriate to conduct such hearings in a court.
"Due process is sometimes time-consuming," said Assemblyman William Horne, D-Las Vegas, chairman of the Assembly Corrections, Parole and Probation Committee. "It's inconvenient sometimes, but it's the system that we have and we just don't cast it aside for expediency."
The committee also heard AB38, a bill to ensure that civil rights aren't automatically restored to convicted sex offenders who are sentenced to a lifetime of parole.
"Why on earth would the Division of Parole and Probation see as a priority disenfranchising people they supervise?" asked Lee Roland of the American Civil Liberties Union of Nevada. "When you're talking about reducing someone's right to vote, there needs to be compelling reasons to do so." Roland pointed out that the bill's broad definition of sex offenders could mean that people who urinate in public or steal pornographic images also could lose their civil rights.
Manendo moved to kill AB38, but the committee agreed instead to reconsider it at a later date.
The committee also heard testimony on AB35, which would make it tougher for a sex offender to get a judge to release the offender from lifetime supervision.
Jerod Updike, a convicted sex offender who at age 22 was charged with attempting to meet a 15 year old over the Internet, opposed the bill. "I understand trying to protect children, and I understand serious molesters and people who have had direct contact," Updike, who is hearing-impaired, said through an interpreter. "But for my situation, where I was a young kid who made a poor choice over the Internet, I feel that lifetime supervision doesn't connect to the crime that I committed."
Challenging the Constitutionality and Applicability of the Sexual Offender Information Registry Act.
Written by: Jennifer Koshan
The Sex Offender Information Registration Act, S.C. 2004, c. 10 (”SOIRA“- Canada's version of SORNA) came into force on December 15, 2004. The SOIRA and related amendments to the Criminal Code (R.S.C. 1985, c. C-46) require courts, on application of a prosecutor, to make an order requiring a person convicted of a designated sexual offence to report to a registration centre within a certain period of time after conviction, and again after moving, to provide information including their address, place of work, and other personal information. SOIRA orders last for a certain length of time (up to life), and must be made unless the impact of the order on the sex offender, “including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (Criminal Code, s. 490.012(4)). Two recent Alberta cases have come to different conclusions on the application of the exemption to the circumstances of the offender, and in a third case, leave to appeal the constitutionality of the SOIRA’s retroactive application was granted.
In R. v. Redhead, 2006 ABCA 84, the Alberta Court of Appeal (per Justices Anne Russell, Ellen Picard and Peter Costigan) declined to consider the constitutionality of the SOIRA because notice of a constitutional challenge had not been provided to the Crown (see also R. v. Aberdeen, 2006 ABCA 164). The overall constitutionality of the SOIRA has not yet been ruled upon by the Supreme Court of Canada or any provincial appellate courts. However, in R. v. Dyck, 2008 ONCA 309, the Ontario Court of Appeal ruled that a similar provincial sex offender registry, implemented via Christopher’s Law (Sex Offender Registry), S.O. 2000, c.1, was constitutional.
R. v. Warren, 2008 ABCA 436 raises the more specific issue of whether the retroactive application of the SOIRA is constitutional. Section 490.02(1) of the Criminal Code provides that a sex offender may be subject to the SOIRA if “on the day on which the Sex Offender Information Registration Act comes into force, they are subject to a sentence for, or have not received an absolute discharge under Part XX.1 from, the offence; …”
(4) The court is not required to make an order under this section if it is satisfied that the person has established that, if the order were made, the impact on them, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under the Sex Offender Information Registration Act.
In Redhead, the Court of Appeal first noted that SOIRA orders are not part of a convicted person’s sentence, so they should not be subject to the same deferential standard of review as sentencing decisions. The Court likened SOIRA orders to orders requiring convicted persons to provide a sample of their DNA, and held that a similar standard of review should apply: an appellate court “can alter a [SOIRA] order decision only where there is an error of principle, failure to consider a relevant factor, an over emphasis of appropriate factors, or a clearly unreasonable decision” (at para. 13).
Second, the Court considered what evidence the sex offender must put forward in order to make out their entitlement to an exemption. The Court found that while the evidentiary burden was on the offender he need not adduce evidence during the SOIRA application, and that evidence from the trial and pre-sentence report could be considered, or a court could take judicial notice of relevant evidence (at para. 25).
Third, the Court found that the exclusion of certain criteria from the SOIRA that were present in the provisions concerning DNA orders - including the offender’s criminal record and the circumstances of the offence - meant that these criteria were not intended to be included as relevant to whether a SOIRA order should be made. Rather, “[t]he focus … must be on the offender’s present and possible future circumstances, and not on the offence itself” (at para. 28). Factors that might be relevant here were said to include “unique individual circumstances such as a personal handicap, whereby the offender requires assistance to report…; the intangible effects of the legislation, including stigma, even if only in the offender’s mind; the undermining of rehabilitation and reintegration in the community; and whether such an order might result in police harassment as opposed to police tracking” (at para. 31). In a subsequent case, R. v. G.E.W., 2006 ABQB 317, economic impact on the offender was also found to be a relevant factor (as cited in R. v. Owusu, 2008 ABQB 715 at para. 5).
Overall, the impact on the offender must be “grossly disproportionate to the public interest in protecting society through the effective investigation of crimes of a sexual nature” (s. 490.012(4) of the Criminal Code). In terms of the public interest, s. 2 of the SOIRA sets out its purpose: “to help police services investigate crimes of a sexual nature”, requiring “rapid access to certain information relating to sex offenders.” The Court in Redhead noted that “[t]he underlying assumption is that a sex offender will re-offend” (at para. 36, citing R. v. Have, 2005 ONCJ 27 at para. 16). Accordingly, “the focus of the inquiry is not on whether there is a public interest in having the offender registered, but rather on whether the impact on the offender would be grossly disproportionate to the public interest” (at para. 42). “Grossly disproportionate” was said to be a high threshold requiring proof of a “marked and serious imbalance” between the interests of the offender and the public interest (at para. 43, citing R. v. J.D.M., 2005 ABPC 264 at para. 53). At the same time, the exemption should not be interpreted “so narrow[ly] that the SOIRA order is effectively mandatory,” or it will be rendered “meaningless” (at para. 44).
Redhead continues to be seen as the leading case in the application of the exemption under s.490.012(4) of the Criminal Code in Alberta and across Canada. Its guidelines were applied in both R. v. Owusu and R. v. Schultz, 2008 ABQB 679, although the judge in each case came to a different conclusion on the availability of the exemption in the circumstances.
... search for bill # 1623, or phrase "International Megan’s Law" at
International Megan's Law - Requires registered sex offenders to report their departure to or arrival from a foreign place not later than 21 days before such departure or arrival. Imposes a fine and/or prison term of up to 10 years for failure to report such travel.
Requires the Secretary of Homeland Security to establish a system of notice to foreign countries about travel outside of the United States by registered sex offenders.
Amends the Immigration and Nationality Act to make convicted sex offenders inadmissible to the United States.
Amends the Trafficking Victims Protection Act of 2000 to include in the annual report of the Secretary of State on the status of severe forms of human trafficking efforts of foreign countries to identify and provide notice of international travel by sex offenders.
Encourages the President to use authorities under the Foreign Assistance Act of 1961 to assist foreign countries in identifying and providing notice of sex offenders traveling to the United States and other countries.
SEC. 4. SEX OFFENDER TRAVEL REPORTING REQUIREMENT.
(a) Duty To Report-
(1) IN GENERAL- A sex offender shall notify an appropriate jurisdiction or jurisdictions of his or her intention to travel, in conformity with the rules issued under subsection (b), not later than 21 days before departure from or arrival in the United States. A jurisdiction so notified shall promptly inform the United States Immigration and Customs Enforcement Special Agent in Charge (hereinafter in this Act referred to as the `ICE SAC'), any successor to the functions of that official.
(2) EFFECTIVE DATE- The duty to report required under paragraph (1) shall take effect on the date that is 90 days after the date of the enactment of this Act.
(b) Rules for Reporting- Not later than 90 days after the date of the enactment of this Act, the Secretary of Homeland Security and the Attorney General shall make rules to carry out subsection (a) in light of the purposes of this Act. Such rules--
(1) shall establish procedures for reporting under subsection (a);
(2) shall set forth the information required to be reported, including--
(A) name(s); (B) date of birth; (C) social security number; (D) passport or passport card number and date and place of issuance; (E) basis of criminal conviction; (F) travel itinerary and purpose of the trip; (G) travel companions; and (H) contact information prior to departure and during travel;
(3) may provide for appropriate alternative reporting in situations, such as personal or humanitarian emergencies or legitimate business exigencies, where the requirement of subsection (a) is impracticable or inappropriate; and
(4) shall provide appropriate transitional provisions in order to make the phase-in of the requirements of this Act practicable.
(c) Criminal Penalty for Failure To Register or Report-
(1) NEW OFFENSE- Section 2250 of title 18, United States Code, is amended by adding at the end the following:
`(d) Whoever knowingly fails to register with United States officials in a foreign country or to report his or her travel to or from a foreign country as required by the International Megan's Law of 2009 shall be fined under this title or imprisoned not more than 10 years, or both.'.
(d) Duty To Notify Sex Offenders of Reporting and International Registration Requirement- When an official is required under State law to notify a sex offender (as defined in section (3)(5)) of a duty to register as a sex offender under the law of that State, the official shall also, at the same time--
(1) notify that offender of that offender's duties to report international travel under this section and to register under section 5, and the procedure for fulfilling those duties; and
(2) require the offender to read and sign a form stating that those duties to report and register, and the procedure for fulfilling them, have been explained and that the offender understands those duties and that procedure.
Sponsor: Rep Smith, Christopher H. [NJ-4]
Rep Bilirakis, Gus M. [FL-9]; Rep Boozman, John [AR-3]; Rep Burton, Dan [IN-5]; Rep Fortenberry, Jeff [NE-1]; Rep Granger, Kay [TX-12]; Rep Manzullo, Donald A. [IL-16]; Rep Payne, Donald M. [NJ-10]; Rep Poe, Ted [TX-2]; Rep Ros-Lehtinen, Ileana [FL-18]; Rep Wilson, Joe [SC-2]This bill effectively prohibits anyone with a sex offense in their history, from traveling to another country, for pleasure, tourism or business. We must contact these elected officials to tell them to STOP these ever-increasing sex offender laws, which are piling one upon another.
Saturday, March 28, 2009
A 14-year old New Jersey girl arrested for posting nude pictures of herself on MySpace.com may avoid jail and sex offender laws, according to a prosecutor handling the case. She was arrested this week and charged with child pornography and distribution of child pornography for allegedly posting nearly 30 explicit pictures on the social networking site.
The charges carry penalties of up to 17 years in jail, and those convicted of distribution of child pornography can be required to register as a sex offender.
Seth Kreimer, a constitutional law professor at the University of Pennsylvania, is working with the American Civil Liberties Union to stop a Pennsylvania prosecutor from charging three teenage girls who authorities say took racy cell-phone pictures that ended up on classmates' cell phones.
Besides Pennsylvania and New Jersey, prosecutors in Connecticut, North Dakota, Ohio, Utah, Vermont, Virginia and Wisconsin have also tried to put a stop to kids sending nude photos to one another over cell phones and e-mail by charging the teens with child pornography.
Friday, March 27, 2009
Susan's 17-year old son was charged with attempted sexual assault of a 14-year old. He is on probation for 7 years and on the registry for 10 years. (Click image below for video)
Referred to Committee on Judiciary. Introduced by: REP. CAFERO, 142nd Dist., SEN. MCKINNEY, 28th Dist.
An Act Concerning Registration of Sex Offenders. Read Bill here.
Thursday, March 26, 2009
Fort Myers, Fla. - A new Lee County ordinance may place tougher restrictions on where sex offenders are allowed to go. In a 5-0 vote Tuesday night, Lee County Commissioners supported the ordinance which broadens the definition of "child safety zones."
Those areas include beaches, playgrounds, public swimming pools, amusement parks like Sun Splash in Cape Coral and any location that could be considered a customary gathering place for children.
A draft of the ordinance is up for review at the state level. Lee County leaders say it could be approved within the next two weeks.
This is unbelievable; banishing citizens from beaches, swimming pools and amusement parks ! What nation is this !?
Minnesota's controversial Sex Offender Program will run out of money next month unless a bill to cover a $16 million shortfall gets quick action in the state Senate, officials said Wednesday.
That legislative action may occur as early as today, when Sen. Richard Cohen says he expects the bill to win approval in the Finance Committee. Gone from the measure, he said, would be a recent amendment that department officials said would cost the program federal matching funds. On the House side, the bill is headed to the floor.
State Human Services Commissioner Cal Ludeman said there was never a chance that a lack of funding might prompt the release of some offenders, which can only be done through court order. But he said that the funding delay had pushed the program to the brink and forced his department to contemplate serious measures.
The Sex Offender Program, which has an annual budget of $76 million, provides housing and treatment for 510 sex offenders who have finished their prison time and are now civilly committed to psychiatric hospitals at St. Peter and Moose Lake.
KEYT.com (California) : Exorbitant Cost Of Monitoring Sex Offender, Outrages Residents
New details are emerging about the cost to taxpayers, and its staggering:
SFexaminer.com(San Francisco) : Confusing sex-offender mandate stalled in its tracks.
A California law requiring a lifetime of GPS monitoring for sex offenders has turned into a logistical and budget nightmare for San Mateo County — and virtually every other jurisdiction in the state.
Named for a Florida girl raped and killed by a convicted sex offender, Jessica’s Law was passed by 70 percent of California voters in 2006. The law, also known as Proposition 83, imposes stiffer penalties for sex offenders and makes possessing child pornography a felony. But it’s the legislation’s mandate of Global Positioning System tracking and the prohibition of any offender living 2,000 feet from a park or school that has local jurisdictions scrambling for answers. In January, the Governor’s Office announced it was outfitting all paroled sex offenders with a GPS bracelet that can track their movements.
But state officials concede that the tracking is mostly passive — that is, nobody sits in front of a monitor watching offenders’ movement. If they are suspected of a crime, however, the GPS records could help in court.
Once terms of parole are finished, however, the continued monitoring and living requirements are the responsibility of local jurisdictions, according to lawmakers. The state offers no equipment, funding or other resources. There are currently 797 registered sex offenders on the Peninsula, according to Sgt. Brian Raffaelli of the San Mateo County Sheriff’s Office.
Jessica’s Law applies to those who have committed crimes since 2006, so the number of offenders who will need the equipment and monitoring is expected to grow each year as they are released from parole.
“In theory, the law was great. But in reality, since it was unfunded, it leaves a big void between what they expect us to do and what we can actually do,” Raffaelli said.
The state spends about $1,500 to set up the system for each parolee and about $6 a day per offender in monitoring costs, Hinkle said. How much counties and cities will need to spend is unknown.
Adding to the confusion is a lack of laws directing local jurisdictions on how to handle violations, and guidance on who’s responsible for the offenders: The county where they committed the crime or their county of residence.
The law’s requirement that offenders cannot live within 2,000 feet of a school or park is also causing concern on the local level — something Raffaelli calls a “logistical nightmare.”
The state’s Sex Offender Management Board — a 17-member panel created by the governor in 2006 — called for the repeal of residency requirements after reporting that the number of homeless sex offenders has “greatly risen” as a result. In November, that board released a report called “Homelessness Among Sex Offenders in California.” It found that the number of sex offenders registering as transient had increased from 2,050 in June 2007 to 3,267 in August 2008, an increase of 60 percent.
“It can be no coincidence that the rise in homelessness among registered sex offenders corresponds with recent changes regarding residency restrictions among all registered sex offenders,” the Sex Offender Management Board report said. “Common sense leads to the conclusion that a community cannot be safer when sex offenders are homeless. In this case, the empirical evidence supports common sense.”
Wednesday, March 25, 2009
Conclusion: Because the Residency Restriction Imposes a Penalty Beyond the Prescribed Statutory Maximum, It Triggers the Right to a Jury Trial
We conclude, based on our analysis of the salient Mendoza-Martinez factors, Jessica’s Law’s residency restriction has an overwhelming punitive effect. It effectuates traditional banishment under a different name, interferes with the right to use and enjoy real property near schools and parks, and subjects housing choices to government approval like parole or probation. It affirmatively restrains the right to choose a home and limits the right to live with one’s family. It deters recidivism and comes close to imposing retribution on offenders. While it has a nonpunitive purpose of protecting children, it is excessive with regard to that purpose. It would oust a person never convicted of any offense against a child from his family home near a school or park, forcing him to leave his family or consigning the family to perpetually threatened transience. Relocation would be limited to the few outskirts of town lacking a school or park. Yet the residency restriction would allow a convicted child molester to stroll past the school, eat ice cream in the park, and live next door to small children — as long as he retreats at night to housing far from a school or park. Building exclusion zones around all schools and parks for all registered sex offenders is excessively punitive.
The severe punitive effect of Jessica’s Law’s residency requirement clearly outweighs the proclaimed lack of regulatory, nonpunitive intent. (See Smith, supra, 538 U.S. at p. 92 [“‘“clearest proof”’” of punitive effect outweighs lack of punitive intent].) We are not the first jurists to recognize the overwhelming punitive effect of a residency restriction. (See Pollard, supra, 886 N.E.2d at p. 74 [residency restriction is punitive]; Mikaloff, supra, 2007 WL 2572268 at pp. *9-*10 [same]; Leroy, supra, 828 N.E.2d at p. 793 (dis. opn. of Kuehn, J.) [same]; Miller, supra, 405 F.3d at p. 726 (conc. & dis. opn. of Melloy, J.) [same].)
Because the residency restriction is punitive, its imposition by the court increases the penalty for a nonsexual offense beyond the prescribed statutory maximum based upon the jury verdict alone. (Apprendi, supra, 530 U.S. at p. 490.) Thus, the facts required to impose the residency restriction must be found beyond a reasonable doubt by a jury. (Ibid.) That was not done here.
H. B. No. 98
Introduced by Representative Courtney Eric Combs
Co-sponsors: Representatives Huffman, Grossman, Bubp, Evans, Stebelton, Harwood, Chandler, Okey, Derickson, Newcomb
To amend sections 2950.01, 2950.11, 2950.12, and 2950.13 of the Revised Code to provide notice to a long-term care facility when a Tier III or similar category sex offender/child-victim offender indicates an intent to reside in the facility or registers an address within the specified geographical notification area including the facility.
We urge ever reader of this blog to contact the each and every one of the above Representatives to tell them to stop with this ridiculous and embarrassing litany of sex offender laws in Ohio. Links to their web pages are provided above
Tuesday, March 24, 2009
Click on a heading to be taken to the questions and answers in that group or click on a question number to be taken directly to the discussion of that question.
Introduction to sex offenses and the registry
1. What is a sex offender registry?
2. How many sex offenders are there?
Characteristics of sex offenders
3. Should I care about sex offenders? Aren’t they all “perverts” and sexual deviants?
4. Are most sex offenders child molesters?
5. Are people on the registry dangerous criminals that need to be kept away from children?
6. Can someone really be a sex offender for public urination?
7. Do pedophiles attack children brutally when they can, and then kill them?
8. What is the medical definition of a pedophile?
9. Is it true that most sexual activity with children is done by their family members, and not by strangers?
10. Are sex offenders likely to commit another sex offense?
Juvenile sex offenders
11. Do kids who are just “messing around” have to worry about these laws?
12. How young are kids getting into trouble for innocently “messing around”?
13. How old are the youngest people on the registry?
14. Is psychological counseling appropriate for kids who get caught being sexual?
15. But we can’t just let kids run amuck. We have to do something to punish unruly children.
16. Can a juvenile be put in civil commitment for a sex offense?
Criminal sentences for sex offenders
17. When sex offenders are sent to prison, aren’t they just getting what they deserve?
18. Can sex offenders get the death penalty for a nonviolent offense?
19. Do our laws effectively protect innocent people?
20. Have all sex offenders been found guilty of sex crimes fair and square under due process of law?
21. Are many people falsely accused of rape?
22. Are many people falsely accused of having sex with a juvenile?
23. Does something have to be seriously wrong before a sex offense would be reported to the police?
24. Can someone be prosecuted based on a witness’s “recovered memories”?
Life of a registered sex offender
25. Can sex offenders live okay if they just stay out of trouble?
26. Do sex offenders face job discrimination?
27. Is it hard for a sex offender to find a place to live, even if he or she has money?
28. Are sex offenders prohibited from being in certain public places?
29. Are sex offenders limited in travel?
30. Do sex offenders have to wear global positioning devices that trace their movements?
31. Have electronic chips been implanted in sex offenders’ bodies to permanently keep track of them?
32. What is “civil commitment”?
33. How many people in the US are in civil commitment for sex offenses?
34. Are sex offenders in civil commitment treated for the mental disorders that caused them to get into trouble?
35. Are sex offenders released from civil commitment when they complete treatment?
36. Are only the most violent, predatory criminals put in civil commitment?
37. Can a juvenile be put in civil commitment for a sex offense?
Other legal issues
38. Does putting someone on the registry for an old offense violate ex post facto provisions of the Constitution?
39. Does the “statute of limitations” prevent someone from being prosecuted for a sex crime that happened a long time ago?
40. Is the age of consent set by state or federal law?
Effects on our society
41. What kinds of harm do we need to be concerned about protecting children from?
42. Isn’t it better to be safe than sorry? Aren’t we better off if we just make sure that children and men are never alone together?
43. Do mandatory reporting laws discourage people in need of counseling for sexual problems from seeking out professional help?
44. What is the harm in ostracizing people who have done bad things, and keeping them away from everyone else?
45. If what you say about all this is true, why aren’t human rights advocates protesting it?
46. Do legislators and government officials know what’s going on? If these laws are such a problem, why aren’t they fixing them?
Initiatives for Change
47. What changes have been called for by organizations active in this area?
48. Has there been any progress in the work to make sex offender laws more reasonable and effective?