Wednesday, September 30, 2009
Google/AP : Court asked if old offenses can get new penalties.
Docket: 08-1301 Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.
The Supreme Court will decide whether sex offenders who didn't register with state officials before harsher punishments went into effect can still be sentenced to extra time in prison. (with regard to Interstate Commerce)
The high court on Wednesday agreed to hear an appeal from Thomas Carr, who pleaded guilty to sexual abuse in Alabama. When released from prison in 2004, he moved to Indiana but didn't register with that state's sexual offender database.
The Sex Offender Registration and Notification Act, which increased penalties for not registering, was not passed until 2006. But when Carr was arrested in 2007, he was charged using that law and sentenced to 37 months in prison. Carr appealed, saying prosecutors should not have used a law that wasn't in existence when he committed his crime.
But the 7th Circuit Court of Appeals in Chicago said that when the law was passed, Congress did not say it did not apply retroactively.
Other courts have said that the law — SORNA — cannot be applied retroactively, and Carr wants the high court to resolve the conflict.
by Robin Morse
Boston University Law Review, Forthcoming
This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders. Part I provides background information on the Adam Walsh Act and these two provisions. Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause. This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue. Part III argues that neither provision is justified independently by the Commerce Clause. Finally, Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws. This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision. Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes. This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses. Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down. The Note concludes by suggesting how the provisions might be revised to pass constitutional muster.
Opinion Information Sheet (readers are urged to read this entire important opinion)
PDF version here.
Docket Number: 27475-6 - Title of Case: State of Washington v. Brian A. McMillan
File Date: 09/17/2009
Excerpts of Opinion:
Brown, J. - The trial court, exercising its fact-finding discretion, relieved sex offender, Brian A. McMillan, of his duty to register. The State appeals, contending Mr. McMillan failed to show by clear and convincing evidence that continued registration no longer served the purpose of the registration statutes. Finding no error, we affirm.
On September 9, 2008, the trial court relieved Mr. McMillan of his duty to register, finding he had been in the community for over 10 years without being convicted of any new offenses and his likelihood to reoffend was low. The court partly relied on the declaration of Dr. Clark Ashworth, a clinical psychologist. Dr. Ashworth opined that Mr. McMillan did not pose "any significant risk of sexual re-offending." Clerk's Papers (CP) at 100. In his oral ruling, the judge discussed the registration statute, set forth the factors in deciding whether to relieve an offender's registration requirement, and commented on the factors. The judge did not make a written finding that the purpose of the registration statutes would no longer be met if Mr. McMillan was required to continue to register. The State appealed.
Mr. McMillan complied with all SSOSA requirements. Over the last 10 years, Mr. McMillan has complied with probation, community supervision, community custody and worked with Dr. Ashworth, who opined that Mr. McMillan was at a low risk to reoffend. The judge stated, "as a matter of policy . . . . if I don't grant it in this situation, a petition to drop the registration requirement, then when do I? In other words, if you don't reward a probationer for having successfully done something ordered by the court, then the whole process becomes illusory." RP at 11.
In sum, the trial court exercised its fact-finding discretion in deciding the evidence rose to the clear and convincing standard. In other words, Mr. McMillan proved to the trial court by clear and convincing evidence that the purpose of the registration statutes was no longer being met by continuing to require him to register.
This is an important court ruling because it sets precedent for those on registries across the nation to petition the court for relief of registration requirements. Any person who is appealing their cases to State Appeals Courts, should consider including this argument in their appeals. See "How to file Court of Appeals Brief". Any legal professionals who read this blog are asked for their input on this matter.
the following four consolidated cases will be heard before the Ohio Supreme Court on Wed, Nov 4, 2009, according to the Ohio Supreme Court Calendar:
Wednesday Nov. 4, 2009, 9 a.m. :
Roman Chojnacki v. Marc Dann, Ohio Atty. General [Richard Cordray], in his
Official Capacity - Warren County
Certified conflict: "Whether a decision denying a request for appointment of counsel in a reclassification hearing held pursuant to Ohio's version of the Adam Walsh Act, Senate Bill 10, is a final appealable order."
On March 23, 2009, the Court ordered the parties to brief the following issues:
- Whether sex offender reclassification hearings conducted pursuant to the provision of Am.Sub.S.B. 10 are criminal or civil proceedings.
- Whether sex offenders are entitled to the appointment of counsel for Am.Sub.S.B. 10 reclassification hearings if those proceedings are civil in nature.
In the Matter of: Darian J. Smith, Alleged Delinquent Child - Allen County
PropLaw I: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Ex Post Facto Clause of the United States Constitution.
PropLaw II: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Retroactivity Clause of the Ohio Constitution.
PropLaw III: The application of SB 10 violates the United States Constitution’s prohibitions against cruel and unusual punishments.
PropLaw IV: A juvenile court has no authority to classify a juvenile, adjudicated delinquent for a sex offense, as a juvenile sex offender registrant when the statutory provisions governing such a hearing were repealed at the time the hearing was conducted.08-2502
State of Ohio v. Christian N. Bodyke, David A. Schwab [and] Gerald E.
Phillips - Huron County
PropLaw I: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Ex Post Facto Clause of the United States Constitution.
PropLaw II: Application of S.B. 10, Ohio's version of the version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Retroactivity Clause of the Ohio Constitution.
PropLaw III: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who were classified under Megan's Law effectively vacates valid judicial orders, and violates the Separation of Powers Doctrine embodied in the Ohio Constitution.
PropLaw IV: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who have previously been sentenced for sex offenses violates the Double Jeopardy Clauses of the Ohio and United States Constitutions.
PropLaw V: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who have previously been subject to the provisions of either the 1996 or 2003 version of Megan's Law violates Due Process and constitutes cruel and unusual punishment as prohibited by the Ohio and United States Constitutions.
PropLaw VI: Application of S.B. 10, Ohio's version of the Adam Walsh Act, to offenders who, pursuant to agreement with the Prosecutor and before the Act's effective date, entered pleas of guilty or no contest impairs the obligation of contracts as protected by the Ohio and United States Constitutions.09-0189
In re: Adrian R., Delinquent Child - Licking County
PropLaw I: The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the juvenile’s right to Due Process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.
Tuesday, September 29, 2009
The Justice Policy Institute, a national organization focusing on juvenile and criminal justice issues, warned that compliance with the Adam Walsh Act will provide little in the way of public safety benefits at substantial costs, particularly for those who must now be on sex offender registries for juvenile offenses.
To provide policymakers with more information about the negative impacts of SORNA, JPI is broadly releasing their report Registering Harm: How Sex Offense Registries Fail Youth and Communities. (This report had a limited release in 2008.) Registering Harm concludes that while the prevention of sexual violence should be a priority for policymakers and the criminal justice system, the registration and community notification of youth convicted of sex offenses is unlikely to improve public safety, can have a lifetime of negative effects on a young person, and often penalizes an entire family. Furthermore, advocates say placing youth on sex offense registries is contrary to the purpose of the juvenile justice system, and SORNA has been found to be unconstitutional and in violation of children’s rights.
“There is a growing concern that this well-intentioned legislation is having serious negative consequences, particularly for young people,” said Tracy Velázquez, executive director of JPI. “Our juvenile justice system was set up to give delinquent youth a second chance; due to the very public and punitive nature of the online registries, the Act denies them this chance.”
“Courts have ruled as recently as this month that SORNA is unconstitutional as it is retroactively punitive,” added Velázquez, referring to the recent ruling by the ninth circuit court. “We know that states are being pressured to pass this legislation through threats of withholding federal dollars. However, in light of these serious civil rights issues, we urge state lawmakers to resist rushing into compliance, and to instead focus on insisting that their federal counterparts change this flawed legislation.”
Registering Harm examines the public safety implications associated with implementing SORNA, which would expand registries already established at state levels, requiring states to list all registrants on a national online database and to include children convicted of certain sex offenses. Although originally all states were required to come into compliance with SORNA in July 2009 or face losing a portion of their Justice Assistance Grant Program funds, no states were in compliance at that time and the U.S. Attorney general extended the deadline for compliance to July 2010. Most troubling, according to the report, is that under SORNA youth as young as 14 would be placed on registries, making them more likely to experience rejection from peer groups and positive social networks and therefore more likely to associate with delinquent or troubled peers. Additionally, as the Ninth Circuit Court pointed out, the registration of adult for decades-old juvenile offenses “threatens to disrupt the stability of their lives and to ostracize them from their communities,” notwithstanding years of living law-abiding and productive lives.
The report also notes that many of the offenses committed by youth are normative teenage behaviors. These behaviors are now criminalized and punished in ways that can last a lifetime. The report also concludes what similar reports, such as “The Pursuit of Safety” by the Vera Institute of Justice, also find, which is that registries do little to protect public safety, and may even endanger youth. And while states may lose federal dollars by not complying, JPI’s analysis shows that meeting the Act’s many requirements will likely cost more. SORNA implementation would leave law enforcement tasked with database management rather than community protection.
“Rather than educating the public about general practices for keeping children and communities safe from sexual violence, this Act encourages a disproportionate allocation of resources and inappropriate focus on registries and the people on them,” said Velázquez. She added that in some states, people can be placed on registries for offenses such as public urination or lewd bumper stickers on their car, which would make it difficult for people using the registry to determine who could be a possible threat to their families or neighborhoods.
Key findings in Registering Harm include:
- The Act mis-allocates resources to a fraction of sexual violence incidences. Registries are designed to warn the public, and particularly parents, of “stranger danger;” however, sexual assaults are seldom committed by strangers. The Bureau of Justice Statistics found that more than nine in 10 sexual offenses against children were committed by either a family member or acquaintance. In addition, 87 percent of the people arrested for a sex offense in 1997 had not been previously convicted of a sex offense and therefore would not appear on a registry. The resource mis-allocation caused by the expansion of registries in the Act has an especially significant impact given the budget crises faced in many states.
- Overbroad registration or notification practices make it difficult for the public to determine who on the registry may pose a public safety threat and who doesn’t. Even the tier system of SORNA still provides little context to people who receive notification or view a public registry. In a review of all state registries, Human Rights Watch found that only five states provided enough understandable information on online registries for the public to be able to interpret the charge and the age of both the registrant and the victim.
- Registration and notification overburdens law enforcement. State and federal laws are enacted at the local level, leaving local law enforcement agencies and corrections departments to implement and shoulder the burden of registration and notification legislation. Law enforcement is forced to dedicate a great deal of time and resources to monitoring people on the registries, finding people who have failed to register, and constantly ensuring that information on the registry is correct.
- Registries and notification create barriers to education, employment, housing, and other social networks and outlets, making it difficult to live successfully in the community. Many states compound the barriers posed by registries with residency restrictions. This leads to increased risk of probation or parole violations or illegal behavior, which may lead to further incarceration.
- Public dollars could be better spent on effective prevention strategies that more comprehensively address ways to reduce sexual violence and abuse. The report recommends that policymakers on federal, state, and local levels employ proactive preventative strategies like educating communities about effective ways to prevent sexual violence, which can be a more effective way of increasing public safety.
“Our public policies should be driven by what works to keep people safe,” added Velázquez. “SORNA is one example of well-intentioned but unsound legislation that will have particularly toxic results, especially for youth. We need to move past emotion and rhetoric, and start putting in place more rational, effective policies for all.”
The report can be viewed here: www.justicepolicy.org/content-hmID=1811&smID=1581&ssmID=80.htm.
Where is our sense of justice and fairness? The past few weeks, the Elmore County Courts have tried the No. 1 assistant to a man who shot and killed a man in a department store parking lot in cold blood to steal his vehicle. It could have been me, you, or anybody. The man had stopped by on his way from work to buy baby diapers. The man was unarmed and was unaware he was about to die, leaving his wife with a baby to raise. It was a senseless, intentional and random shooting. His No. 1 assistant was tried and given 13 years with allowance for time served in jail. He will probably be out in three or four years and can get on with his life as he chooses.
In this same court, there was a man in his 20's who mentioned to someone that he had a sexual relationship with a girl who was 15 when he was 17. Two years difference in age between teenagers. He was given 30 years in prison. He will serve many years and wear a scarlet letter as a sex offender for the rest of his life.
Why don’t we require robbers and thieves to wear a sign to that effect when out in public and those convicted of DUIs to have car tags with drunk driver on it?
Another thing going on is these cities passing laws requiring sex offenders not to live within 2,000 feet, some places 2,600 feet, from a church, school, daycare or park. The result is there is nowhere in cities for them to live, therefore they are dumping them out in rural areas where law enforcement is thinly spread. Alabama state law requires the sheriff to keep up with these people but does not pay the county anything to do it. The law enforcement agencies could better use their time doing other things.
The future of Jeffersonville’s sex-offender ordinance is unclear, as the Indiana Supreme Court has decided not to take a case in which the Indiana Court of Appeals sided against the city.
The ordinance banning sex offenders from entering city parks was originally passed in January 2007. It allowed for offenders to request an exemption if they could show “good cause” for entering a park. Eric Dowdell, who was convicted of sexual battery of a 13-year-old girl in 1996, applied for such an exemption so that he could watch his son play Little League baseball.
Initially he was denied but, following a legal challenge, the Court of Appeals ruled in June that Jeffersonville’s ordinance was unconstitutional as it applies to Dowdell because he served his sentence and completed his requirement to register on the sex offender list before the ordinance was passed.
In the Court of Appeals ruling, Chief Justice John Baker described the exemption process as “extraordinarily burdensome and virtually illusory,” noting that the offender must provide a “legitimate reason” for the exemption and would have to go through the application process each time a new activity arises.
A little more than 10 years ago, 400 anxious people packed an elementary school gymnasium in Fargo to grill two police officers about an ex-sex offender coming to their neighborhood. It was the first notification hearing held in North Dakota to alert residents to the presence of a high-risk sex offender. Two months earlier, Minnesota had held its first notification meeting in Eagan, a Twin Cities suburb.
For a time, such gatherings were regular occurrences. Today, not so much. “It’s been more than a year since we’ve held a public meeting,” said Jay Middleton, a community resources officer with the Grand Forks Police Department. “The reason we quit is lack of turnout.”
It’s the same in Fargo and other cities. “Even the media isn’t coming” to such meetings anymore, Fargo Police Sgt. Jeff Skuza said recently, explaining why his department will rely instead on news releases, the Internet and e-mail alerts to notify residents about a high-risk offender in their midst.
A South Dakota sexual assault study task force met Monday in Pierre. The committee was created to review the current state laws on the sex offender registry and determine what changes need to be made to comply with federal standards. The committee is also looking into making some possible changes when it comes to people wanting to get their names off the list....who do not pose a threat to the public.
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Registered sex offenders live in Schiller and Goodale parks in Columbus. Another gives his address as behind Paul Brown Stadium in Cincinnati, while still another stays in an old railroad steam tunnel in Cambridge.
And five live in vehicles parked on the streets of Marietta, from a pair of vans to a purple Dodge Neon.
How are sheriff's offices supposed to obey Ohio law by keeping track of such offenders and notifying neighbors of their presence? Short answer: They can't.
"This is a horrendous problem for us," said Steve Martin, chief deputy with the Franklin County sheriff's office. "We're doing everything that is humanly possible to monitor these people."
But he acknowledges that's difficult for those who don't have a fixed address, such as the homeless. At least 160 people are "homeless" on the state's sex-offender database of more than 18,000 sex offenders, and many more are listed as living in such places as tents or vehicles, or on porches or park benches.
Examples of sex offenders' "homes" from the database: "Dayton Mall area" in Montgomery County; on "Courthouse Square" in Warren; "diversified" in Columbus; in a "Ford Fairmont station wagon" on River Road in Cincinnati; "under bridge by post office" in Newark; "across from Big Lots" on 2nd Street in Ironton; and "garage behind barber shop" on Reading Road in Mason.
Deputies are supposed to tell everyone living within a 1,000-foot radius when a sex offender moves in and monitor the offenders to make sure they keep their addresses current, as required by the law. But keeping track of them is a challenge facing virtually every sheriff's office in Ohio, said Robert Cornwell, director of the Buckeye State Sheriffs Association. "The real challenge comes in verifying that somebody lives someplace like under a bridge," he said. "How often do you go back and check on them to see if they're still living there?"
Martin said deputies met with the Franklin County prosecutor's office earlier this month to explore a possible change in state law. Until then, sex offenders without a permanent fixed address are being asked -- not required -- to check in daily with the sheriff's office.
Deputies struggle with who to notify when a sex offender lives in some place like a park, Martin said. Do they notify everyone around sprawling Schiller Park, for example, about the sex offender who lives there?
Monday, September 28, 2009
A small population of online basement-dwelling Internet posters spout out about hanging or castrating sex offenders when they do not really understand who is included in these categories. Any one of us could wake up tomorrow morning to learn that someone we love is now a sex offender. How would our views change once that happens?
The numbers are astounding: an estimated 660,000 sex offenders are registered nationally, and that number grows each and every day. And a large number of those labeled as "sex offenders" are juveniles, children themselves, and those who did something really stupid, rather than the rare "predator monsters" you hear about through the media. According to independent research, approximately 90% of sex offenses are committed by someone the victim knows. This percentage is higher as the age of the victim decreases. And while the media often espouses falsely high recidivism rates for sex offenders, the actual official US Department of Justice statistics for recidivism is 5.3%.
Those who believe sex offenders are not treated harshly enough, or that they deserve such punishments after they have served their time in prison or probation, should study the facts. All our statistics are linked to their official sources at www.constitutionalfights.org.
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In an astounding apparent attempt to emulate the disaster of Florida's sex offender laws, Georgia is now pushing registered sex offenders to live in the woods.
Marietta, Ga. — A small group of homeless sex offenders have set up camp in a densely wooded area behind a suburban Atlanta office park, directed there by probation officers who say it's a place of last resort for those with nowhere else to go.
Nine sex offenders live in tents surrounding a makeshift fire pit in the trees behind a towering "no trespassing" sign, waiting out their probation sentences as they face numerous living restrictions under one of the nation's toughest sex offender policies.
The muddy camp on the outskirts of prosperous Cobb County is an unintended consequence of Georgia law, which bans the state's 16,000 sex offenders from living, working or loitering within 1,000 feet of schools, churches, parks and other spots where children gather.
It's not the only place in Cobb County where offenders can live — there are hundreds of other sex offenders throughout the county living in compliance with the law. But Ahmed Holt, manager of the state's sex offender administration unit, calls the camp a "last resort" for homeless offenders who can't find another place to live that complies with the law.
He said probation officers direct them to the outpost if other options fail, such as transferring to another county or state or sending them to a relative's place that meets the requirements. Homeless shelters and halfway houses are often not an option, he said, because of the restrictions that bar them from being near children.
Critics say it's an example of how laws designed to keep Georgia's children out of harm's way create a hazard where penniless sex offenders live largely unsupervised at the government's urging.
"The state needs to find a responsible way to deal with this problem," said Sarah Geraghty, an attorney with the Atlanta-based Southern Center for Human Rights who represents another man living in the camp. "Requiring people to live like animals in the woods is both inhumane and a terrible idea for public safety."
The tent city is similar to one in south Florida, where dozens of sex offenders moved under a remote bridge because it was among the few places that complied with local ordinances. Florida officials say the sex offenders found the bridge on their own, while some residents of the camp dispute that.
In Georgia, however, Holt said state probation officers have directed homeless offenders into the woods.
"While having an offender located in a camp area is not ideal, the greater threat lies in homeless offenders that are not a specified location and eventually absconding supervision with their whereabouts unknown," he said.
Update Sept. 29, 2009 : Camp closed by Georgia Officials, sex offenders ordered to leave camp.
Ron Book, of Plantation, Florida, mounted a legislative onslaught on sexual offenders. Among the many measures he championed, the most significant were local residency restrictions that barred registered sex offenders from living within a certain radius--usually 2,500 feet--of places where children gather, like schools, parks, and playgrounds. By the time he was done, Book had helped pass such ordinances in some 60 cities and counties throughout Florida and beyond.
The impact on the offenders was severe. Entire cities were suddenly off limits to them. They became pariahs, confined to remote and shrinking slivers of land. The most egregious example is a colony of predators camped out under the Julia Tuttle Causeway, which spans Miami's Biscayne Bay—a place so surreal and outlandish that it has become a lightning rod in the debate over America's treatment of sex offenders. For a long time, Book was unrepentant about having helped create that community of outcasts. But eventually his fury began to subside, and was replaced by something Book isn't accustomed to having: doubts.
The causeway colony may be an extreme example, but sex offenders have been similarly uprooted across the country, as lawmakers have seized on residency restrictions in recent years. Thirty states and hundreds of cities and counties—162 in Florida alone—have adopted them in some form. In Iowa, thousands of offenders were displaced, which forced many into shabby motels around Des Moines and others onto the streets. In Suffolk County, N.Y., those left homeless were crammed into a trailer that periodically moved around until finally settling on the grounds of the county jail. Such accounts dismay most experts on sexual crimes. "This very-well-intended policy is making the public less safe," says Susan Brown-McBride, chair of the California Sex Offender Management Board. It "destabilizes [offenders] by making them homeless."
Even some staunch supporters of residency restrictions have expressed misgivings after witnessing the chaos the ordinances sow. Florida state Sen. Dan Gelber, whose district is home to the Julia Tuttle camp, is adamant about the 2,500-foot rule. A father of three, he recently learned, to his dismay, that a registered sex offender who lived six doors down from him was arrested for masturbating in front of some children. Despite his hardline stance, however, Gelber was aghast at what he observed in his first visit to the bridge in early July--the density of the encampment, the sordid conditions. "There has to be another way," he says.
Before long, however, the unintended consequences of these laws became apparent. Though some cities and counties passed the measures enthusiastically, just as many enacted them defensively, to prevent castaways from a neighboring jurisdiction from settling in theirs. Janice Washburn watched that happen in her unincorporated enclave of Broadview Park in Broward County, Fla. As one nearby city after another enacted residency restrictions, predators poured in. In August 2007, Broadview Park had four registered offenders. A year later, there were 39. A few months later, there were 106. "It was multiplying like crazy," says Washburn, who now sits on a county task force to address the matter. In response, Broward County approved an emergency 2,500-foot restriction in April and is now studying whether to pass a formal ordinance. "It is 'not in my backyard,' and not a good solution," says County Commissioner John Rodstrom. But "what are we left with?"
This disorder might be tolerable if the residency policies were effective. But "there is no evidence that [they] protect children," says Jill Levenson, a professor of human services at Lynn University in Boca Raton, Fla., who has examined the issue in depth. In Iowa, for example, there was no reduction in the number of reported sex crimes after the restrictions took effect, she says. Moreover, a 2006 National Institute of Justice report found that only 11 percent of female victims under age 12 and 16 percent of comparable males were raped by strangers; most were assaulted by relatives, teachers, and other people they knew. If anything, the residency statutes make things worse, some activists say. In Iowa, the number of offenders who absconded doubled in the six months after the restrictions took effect. "If an offender ends up with no residence, that shouldn't make any of us feel safer," says Patty Wetterling, whose son's abduction prompted the creation of the first federal sex-offender registry in 1994. "What they need is stability, support, counseling, and treatment." (Studies have shown their recidivism rate is typically 10 to 15 percent (actually 5-6% according to U.S. Department of Justice statistics here) , and treatment often proves more effective with certain groups, like juveniles, says Richard Wright, asso-ciate professor of criminal justice at Bridgewater State College in Massachusetts.)
Earlier this year, Book began reconsidering his position—spurred by lawmakers on both ends of the spectrum who'd begun questioning the wisdom of the ordinances. "I had to take stock and ask myself, 'Am I in the right place or not?' " he says. In an interview with a Newsweek reporter in June, Book admitted, "I was wrong"—three times. A few days later he had dinner with Levenson, the Lynn University professor, who's critical of residency laws. "Five years ago, I thought of you as a predator sympathizer," he told her. "I didn't see the bigger picture." He concluded the evening by assuring her,?"I will be part of the solution."
With characteristic tenacity, Book is now trying to undo the bridge fiasco. The battle over the settlement's fate has recently escalated. In early July the American Civil Liberties Union filed a lawsuit against Miami-Dade County, alleging that its residency restrictions interfere with the state's ability to monitor offenders. Shortly thereafter, Miami officials sued the state, arguing that the colony should be removed since it lies within 2,500 feet of a tiny island that the city claims is a park (the governor's office replied in a letter to the city that the Department of Corrections doesn't place predators under the causeway and that released prisoners bear responsibility for finding housing that conforms with the law).
We must be very careful to not allow Ron Book to now be held up as a 'hero' , just because he finally realized how wrong he was in creating this debacle. He is still responsible for inflicting tremendous pain and hardship into the lives of thousands of people and their families. And this pain still continues every day for them.
We have just become aware of a 1995 Miami News article about Ron Book's multiple violations of campaign finance laws in Florida
Saturday, September 26, 2009
A federal judge on Thursday issued a stern rebuke to state corrections officials for the way they classify some parolees as sex offenders even though the defendants have never been convicted of sex crimes.
U.S. District Judge Sam Sparks also voiced frustration with state parole officials for ignoring earlier court decisions and a previous directive by him and ordered the state Board of Pardons and Paroles to review whether to leave parolee Ray Curtis Graham on sex offender restrictions. Graham, who served time in prison for burglary and attempted murder, was never convicted of a sex crime.
Sparks said,"The undisputed evidence established no official involved in the ... process has ever made the necessary finding that Mr. Graham constituted a threat to society by his lack of sexual control."
"I think this case displays the arrogance of power that permeates the parole board," said Bill Habern, one of Graham's attorneys.
Friday, September 25, 2009
JusticeFellowship.org : How Should We Deal with Sex Offenders?
The issue of how to treat sex offenders causes unease for many people. Highly publicized crimes of the most heinous nature have understandably led to aggressive state and federal sanctions for sex offenders. These policies include sex offender registries, residency restrictions, and ineligibility for types of employment and licensing.
Reactionary policies have resulted in unjust and unsafe consequences.
Unfortunately, these reactionary policies not only lead to unjust sentences, but they also detract from public safety. First, many severe restrictions apply to both minor and serious offenders—teenagers who moon someone can be subject to some of the same consequences as rapists, including restrictions on where they can live and mistreatment from neighbors who recognize their names on a registry. Second, applying tough sanctions without regard to offenders’ actual risk makes the community less safe by diverting police attention away from dangerous people to people who may have only committed youthful indiscretions. Third, sex offender policies assume that sex offenders have high recidivism rates, yet the recidivism rates are relatively low—according to one study, only 5.1% of sex offenders are re-arrested for a new sex offense in the three years following release. If anything, reactionary policies encourage recidivism by barring ex-offenders from employment and housing.
Justice Fellowship advocates for common sense treatment for sex offenders so that law enforcement can focus on truly risky people; minor offenders can experience just sentencing; and all offenders have the opportunity to experience rehabilitation and restorative justice. Promising reforms include narrowing the requirements for who must be listed on sex offender databases and who must be subject to residency and licensing restrictions. Lawmakers must carefully consider the effects of sex-offender laws on offenders’ ability to live productive lives. The church also must recognize that sex offenders, like other offenders, can be restored to society—and these individuals need the church to support their journey to restoration.
Focus on the Real Threats to Safety
Unfortunately, the sex offender statutes are written so broadly that they lump many people convicted of relatively minor offenses in with the hard core sex offenders. Most states require all those convicted of a sexual offense to register with the local police and prohibit them from living anywhere near a school, day care center or park. We certainly want to keep child molesters away from children. The problem is that the term “sex offender” is so broad that it includes people we are mad at as well as those we fear will harm children or vulnerable people.
Applying these tough sanctions without regard to the actual danger posed by the offenders actually makes us less safe. The laws force law enforcement to spend a great deal of time and money keeping tabs on those who committed youthful indiscretions, when the police should be allowed to concentrate on monitoring hard core sexual offenders.
In addition, overly broad definitions of sex offenders divert public attention from those who truly pose a threat. In many states all individuals on the sex offender list are posted on the web and appear on maps of registered sex offenders. This causes tremendous fear among the public because they don’t realize that their neighbor may only be on the list because they went skinny dipping as teenager over 30 years ago. The lists and maps don’t distinguish between youthful indiscretions and those who are a real threat. So, the public assumes the worst.
In a very dangerous confluence of bureaucratic inefficiency combined with zeal to warn the public about sex offenders, some agencies have listed innocent people. Their names were the same or similar to convicted sex offenders, and the bureaucrats didn’t bother to sort them out. In January 2008, the State Controller audited New York’s registry and found that one-fourth of the records they surveyed had mismatched driver's license information. Even worse, details of licenses for the wrong people were given out as those of offenders.
Stringent Residency Restrictions Backfire
Probation agents and police officers tell me that, though well intended, residency restrictions have made it harder to keep track of sex offenders. In many urban areas, every square foot of the city is off limits because a school, day care center, churches or other place where children gather is within the restricted zone. In California, offenders cannot live within 2000 feet of any school or park. How does an ex offender comply with the law? Many end up sleeping under bridges, in parks or behind trash bins in industrial areas. As a spokesperson for Florida Department of Corrections told USA Today, "If we drive these offenders so far underground or we can't supervise them because they become so transient, it's not making us safer."
Minnesota studied the impact of residency restrictions and concluded that:
[t]here [was] no evidence in Minnesota that residential proximity to schools or parks affects re-offense. Thirteen level three offenders released between 1997 and 1999 have been rearrested for a new sex offense since their release from prison, and in none of the cases has residential proximity to schools or parks been a factor in the re-offense. Level III Sex Offenders: Residential Placement Issues
Yet, despite the evidence to the contrary, legislators keep trying to expand the reach of sex offender laws. In Virginia one proposal would prevent them from ever entering a church. While that is not the intent, the proposed bill would ban sex offenders from “the premises of any child or day care center or any other type of school both during and after school hours.” Since many churches have a day care center or school on the premises, this bill would ban offenders from church even when children were not present.
No Easy Answers
To understand the many complex issues surrounding sex offenses, I highly recommend that you read “No Easy Answers” a report by Human Rights Watch. It counteracts many myths surrounding sex offenses. One of them is that “[s]ome politicians cite recidivism rates for sex offenders that are as high as 80-90 percent. In fact, most (three out of four) former sex offenders do not reoffend and most sex crimes are not committed by former offenders.”
The report provides real life examples of the overreach of the statutes. One profiled offender said,
"What the registry doesn’t tell people is that I was convicted at age 17 of sex with my 14-year-old girlfriend, that I have been offense-free for over a decade, that I have completed my therapy, and that the judge and my probation officer didn’t even think I was at risk of reoffending. My life is in ruins, not because I had sex as a teenager, and not because I was convicted, but because of how my neighbors have reacted to the information on the internet."
I serve on the Prison Rape Elimination Commission with Jamie Fellner, the director of the U.S. program at Human Rights Watch. She is a brilliant and passionate defender of vulnerable people. Her summation of what our priorities should be in dealing with sex offenders hits the mark: “Children deserve laws that work. And former offenders need laws that allow them to rebuild their lives because when they succeed in safely rejoining their communities, we are all safer.”
I have heard it said that sex offenders are modern day lepers. That is probably pretty accurate. And we know that Jesus didn’t shun lepers. Instead, He loved them and healed them. He expects us to do the same.
In His service,
Vice President, Prison Fellowship
A Montgomery circuit judge has struck down a portion of the state's sex offender law, saying that a provision that requires indigent offenders to provide a verifiable address as a condition of their release is unconstitutional.
Several homeless sex offenders sought to have the Class C felonies that they were charged with for not complying with the law dismissed citing that the provision violated their rights.
Under Alabama's Community Notification Act, incarcerated sex offenders must provide law enforcement officials a verifiable address where they will live 45 days prior to their release. Failure to comply with that provision is a Class C felony, and the sex offender is immediately taken to county jail upon release. The offender could face 15 years to life in prison if convicted because of the state's Habitual Offender Act, according to briefs filed on behalf of the homeless defendants.
Lawyers for the defendants in the cases argued successfully that they were being punished for not complying with a law that was physically impossible to abide by, and that they were essentially being re-imprisoned after they had served their sentences.
Attorney General Troy King said he is appealing the rulings because an "actual address," which the law requires, can be anything from a homeless shelter to a park bench. "We have argued in these briefs that homeless sex offenders can comply," he said. "You don't have to live at a house with a street address to comply. The law is broad enough that if you live in a park you can use that as an address."
That's as long as that park isn't within 2,000 feet of a child-care facility, a K-12 school, or a college or university campus. During the 2009 legislative session, lawmakers approved adding college and university campuses to the list of places in Alabama that sex offenders couldn't live near.
Birmingham attorney David Gespass said that many of the existing laws are based on emotion and not reality. He said cases such as that of Jaycee Dugard, who was abducted by a registered sex offender and held for 18 years, grab headlines but the truth of the matter is those cases are quite rare. Gespass says legislators and politicians often push for such laws so they can appear tough on crime, but whether the population at large is any safer is debatable.
He said the state would be better served by identifying which offenders are truly dangerous and monitoring those individuals more closely.
Tuscaloosa County Public Defender Bobby Wooldridge said people don't want to hear it, but there are some basic rights that even sex offenders have that can't be violated, and he expects there to be more legal challenges in the future.King said when his office started pursuing tougher restrictions and penalties for sex offenders, it knew there would be legal challenges.
Pahokee, Fla. — A cluster of one-story yellow buildings surrounding a small church caters to one of society's most despised demographics: sex offenders.
Since the development opened eight months ago, the minister who runs it has recruited former inmates by distributing brochures in Florida prisons and plugging it in sermons at the lockups. Some 35 sex offenders now live in the complex about three miles from Pahokee, a poor farming community of 6,000 wedged into sugar cane fields of the Everglades.
"Leaving prison or jail soon? ... Do you have special requirements concerning where you can and cannot live? You may have just found the answer to your prayers," reads the pamphlet advertising the privately operated, 24-acre village.
The village has become a haven for the ex-cons, who face tight restrictions on where they can live. Nationwide, hundreds of ordinances require sex offenders to dwell at least 1,000 feet from anywhere children gather — schools, churches, parks, bus stops. Elsewhere, narrow housing options have prompted clusters of offenders to live in tents and other makeshift structures, such as the 70 or so who live beneath the bridge that connects Miami and Miami Beach.
"Society sees us as lepers, like rejects," said Louis Aponte, who moved into Miracle Park three months ago from the nearby Glades Correctional Institution after serving almost nine years for attempted sexual battery on a young female family member. "I don't know where I'd be without it, probably living with my family, but that would be tough," he said.
The neighborhood is the brainchild of Richard Witherow, a minister has been preaching to inmates for about 30 years. Surrounded by nothing but sugar cane fields and country roads, Pahokee seemed the perfect fit for the venture — far enough removed from the voices of dissent, or so Witherow hoped.
Several attempts at establishing a place like Miracle Park elsewhere in Florida failed after local governments kicked him out. "People get hysterical when you mention sex offenders," Witherow said. He said Pahokee shouldn't fear his tenants, who pay about $500 a month in rent and work odd jobs around the site if they can't find work elsewhere. Witherow also offers church services and classes on relationships and anger management. "The ticking time bomb here does not exist," Witherow said.
Jill Levenson, a Lynn University professor in Boca Raton who studies sex offenders, said most of them don't commit new sex crimes. Still, she said it's rare to see a property owner welcoming sex offenders — much less advertising to them.
"There is a fairly small subgroup of sex offenders who seem to be most dangerous, most likely to re-offend, but the majority do not," Levenson said.
Studies on sex offender recidivism rates have produced varied results, from as little as 5 percent re-offending to more than 30 percent, depending on the severity of the original offenses. (Official U.S. Dept. of Justice Statistics say the rate is 5.3% - see post on Sex Offender Data)
Sgt. Mark Jolly, of the Palm Beach County Sheriff's Office Sexual Predator Offender Tracking Unit, said authorities have had no reports of Miracle Park residents committing new crimes.
Last month, the Palm Beach County Office of Equal Opportunity determined Witherow, his Matthew 25 Ministries, and the complex's owner, Alston Management Inc., the company Witherow leases from, violated the county's fair housing ordinance by threatening to evict families with children.
A letter sent in December by Alston Management informed tenants in what was then Pelican Lake Village that it was becoming "adults only." Witherow started renting to offenders in January.
"If you have children living or staying in the apartment under the age of 18 years old, you will have to vacate the property," or be evicted, the letter stated.
The Legal Aid Society of Palm Beach County and the Florida Equal Justice Center have sued Witherow and Alston on behalf of former residents, claiming they violated county and federal fair housing laws.
Legal aid attorney Shane Weaver said the housing of sex offenders is not the concern. Legally, Miracle Park can exist because it sits in an unincorporated part of Palm Beach County far enough away from where children gather, so it violates no laws.
However, Weaver said: "You can't just target people with children and say, 'Leave.'"
(Apparently, people such as these believe banishing a group of citizens is legal when applied to sex offenders - so why is it wrong to do to others?)
Thursday, September 24, 2009
The Iowa Supreme Court has sent a strong message about "sexting" in the most recent ruling stemming from a 2005 case involving 18-year-old male XXX.
The girl receiving the pictures was 14 years old. XXX's attorney appealed a jury verdict to the Iowa Supreme Court, and the court agreed that the pictures involved obscenity and upheld the decision. XXX received probation. "But he also has to register as a sex offender -- and [he] may be on that sex offender registry for a lifetime," Pat Trueman, special counsel for the Alliance Defense Fund, adds.
The court concluded that even though the girl asked for the pictures, XXX still had a legal obligation not to send them.
SCOTUSblog's recent Petitions to Watch post, which lists cases that might be heard by the U.S. Supreme Court, includes a case raising constitutional issues with SORNA. The case, which we previously blogged about, is from the Seventh Circuit with an opinion by Judge Posner. You may view the opinion here and the petition for writ of certiorari here.
This case involves the Ex Post Facto retroactive application of SORNA as it relates to inter-state travel and failure to register of persons whose underlying offense and interstate travel both predated enactment of the statute.
Wednesday, September 23, 2009
National Institute of Justice Fact Sheet:
Sex Offender Residency Restrictions
Laws that restrict where registered sex offenders may live have become increasingly popular during the past decade. As of 2007, some 27 states and hundreds of municipalities had enacted laws that bar sex offenders from residing near schools, parks, playgrounds and day care centers. The specified distance from a school or other venue is typically 1,000 feet but varies from 500 to 2,500 feet, depending on the jurisdiction.
The laws, which have wide public support, are modeled after Florida’s “Jessica’s Law,” named for a nine-year-old Florida girl who was kidnapped and killed by a molester. They follow the Wetterling Act of 1994 mandating sex offender registration and the 1996 Megan’s Law requiring public notification when an offender moves into a community.
Residency restriction laws have led to some unanticipated and unintended consequences. In many locations — most noticeably in urban areas — the restrictions have created overlapping exclusion zones that severely limit where offenders can live. In some cities the only acceptable sites are in high-crime neighborhoods or commercial zones. Even when residential areas are available, sex offenders just released from prison may not be able to find affordable housing in those areas.
If unable to find legal housing, offenders may report false addresses, become homeless or go underground. Others may be forced to live in rural areas with less access to employment or mental health services. Even in rural areas where schools and day care centers are more geographically dispersed, most unrestricted land is forest or farmland.
This means that the disaster which has resulted within Ohio from these laws is a sign of what is to come to every other state in the nation. Therefore, the battle against these laws, which is being fought in every county and appellate district and which will be soon argued in the Ohio Supreme Court, will be a bellwether indicator of where the constitutional challenges against them will lead.
This local story out of California, which is headlined "Pastor: San Bernardino council ultimatum is unconstitutional," reports on the details of a brewing constitutional debate involving churches freedom and local sex offender restrictions. Here are the basics:
Responding to a demand that First Church of the Nazarene ban registered sex offenders or to stop receiving city money to host a youth facility there, the church's pastor contended the ultimatum is an unconstitutional violation of his religious freedom. "I cannot think of anything more antithetical or repugnant to the fundamental values upon which our nation was founded — freedom of religion, freedom to worship God without interference from the government, freedom to practice Christianity without oppression," Pastor David Rhone wrote Tuesday in a letter to Mayor Pat Morris and the council.
The controversy follows Monday's revelation — through the leak of a confidential memo — that a man convicted of incest and lewd and lascivious conduct with a person younger than 14 performed work at the First Church of the Nazarene.
A police investigation determined that the man's presence at the church did not present a danger to children or that any new crimes were committed. Nevertheless, the issue is sensitive not only because San Bernardino is in the middle of election season, but because the church hosts San Bernardino's flagship Operation Phoenix youth center. That center was managed by Mike Miller until Miller's arrest in July 2008 on suspicion of child molestation. Miller has pleaded not guilty and is incarcerated while awaiting trial. The church also hosts SOAR Charter Academy and Valley Christian Pre-school.
Rhone said Tuesday that he would rather sever the church's relationship with the city than let the government decide who can attend services, but he does not expect that to come to pass. Instead, he expects the council to take back its demand and apologize. "They've got to reconsider because what they've asked us to do is unlawful," Rhone said. The Police Department determined that children were not threatened while on church property.
Santa Ana - Greg Haidl is the son of Orange County Assistant Sheriff Don Haidl, who ran the department's 600-member reserve program while supporting his son against gang-rape charges, and who abruptly resigned thereafter. Greg Haidl who was sentenced to six years in prison after he and two friends were convicted in a 2002 sexual assault of a teenage girl – wants his conviction thrown out.
Haidl, along with his two co-defendants, argue they didn't get a fair trial when they were convicted in 2005 for their roles in the July 5, 2002, videotaped assault on the girl.
The three are asking the appeals court to overturn the conviction, or at least lift a requirement that they register as sex offenders for the rest of their lives.
Secretary of State hopeful and Republican state Sen. Jon Husted says he isn’t giving up the fight in a protracted dispute over his residency, which ended in a late-night ruling on Monday that he isn’t a legal resident of Kettering.
Ohio Secretary of State Jennifer Brunner, a Democrat, issued a 12-page ruling to the Montgomery County Board of Elections stating Husted isn’t eligible to vote there. Questions were raised over Husted’s residency a year ago and led to two tied votes before the Montgomery County elections board, which Brunner was required by the Ohio Supreme Court to break before Tuesday.
Case law, Brunner wrote, states a person’s intention is important but that must go hand-in-hand with evidence that backs it up. Monday’s ruling cites utility records showing “sporadic” usage of the Kettering home, including a five-month period last year in which no water use was recorded there.
“While Senator Husted’s subjective testimony claims an intention to return to a ‘fixed’ habitation, the weight of the evidence based on his actions and those of his family under the relevant legal provisions tip the scale so clearly against his assertions that I am convinced and hold the firm belief that he is no longer a resident of Montgomery County and therefore is not eligible to vote there,” Brunner wrote.
“Today’s ruling calls into question the legitimacy of Husted’s candidacy for Secretary of State, because someone running to be Ohio’s chief elections officer should follow Ohio elections law,” Chairman Chris Redfern said in a statement. “The Ohio Democratic Party will continue to remind voters about Jon Husted’s questionable residency status.”
We have reported several times on this matter. Mr. Husted, along with Senator Steve Austria of the Ohio Legislature are two of those who are responsible for violation the constitutional rights of over 30,000 Ohio citizens. They often thump their chests, proud of their efforts to instate the disastrous Adam Walsh Act laws in Ohio. And now, Husted, who wants to be Ohio Secretary of State is found guilty of violating Ohio election laws in listing his address falsely.
Tuesday, September 22, 2009
Bureau of Justice Statistics
Sexual Assault of Young Children as Reported to Law Enforcement: Victim, Incident, and Offender Characteristics
-a Statistical Report (PDF)
Sexual Assault of Young Children as Reported to Law Enforcement:
Victim, Incident, and Offender Characteristics
by Howard N. Snyder, Ph.D.
National Center for Juvenile Justice
July 2000, NCJ 182990
A Statistical Report using data from the National Incident-Based Reporting System
This work was supported in part by a grant from the American Statistical Association with funds
provided by the U.S. Department of Justice, Bureau of Justice Statistics.
Excerpt from Conclusions:
Nearly 5 of every 6 sexual assaults of young juveniles occurred in a residence. Crimes against older juveniles and, especially, adult victims were far more likely to occur in other places.
Adults were the offenders in 60% of the sexual assaults of youth under age 12. Rarely were the offenders of young juvenile victims strangers. Strangers were the offenders in just 3% of sexual assaults against victims under age 6 and 5% of the sexual assault victimizations of youth ages 6 through 11. Sexual assaults of children under the age of 6 were the least likely of all such crimes to result in arrest or be otherwise cleared. The NIBRS data indicate that law enforcement identified the offender in just a third (34%) of the sexual assaults of children under age 6 and nearly half (45%) of the victimizations of youth ages 6 through 11.
See tables from this report by clicking on thumbnails below:
Offender Probabilities (note: probabilities of a stranger assaulting a child are extremely low compared with family and acquaintances)
Victim-Offender Relationships (note: family member and acquaintances account for 93% of juvenile offenses)
Age Profile of Offenders (note: the highest rate of offenders are just children themselves, 14-18 yrs, of age)
South Florida cities and counties have clung to ill-considered ordinances that by now have forced upwards of 80 sex offenders to live under the Julia Tuttle Causeway -- recasting Miami into a place given to medieval justice.
Newsweek, in this week's issue, became only the latest national publication to eviscerate Miami's image, describing the causeway camp as ``a squalid and dreary place. The air is thick and stifling, reeking of human feces and of cat urine from all the strays that live there . . . Makeshift dwellings sprawl out in every direction -- tents clinging to concrete pylons, rickety shacks fashioned out of plywood, a camper shell infested with cockroaches. There is no running water or sewage system; inhabitants relieve themselves in shopping bags and toss the sacks into a pile of refuse that they burn periodically.''
The Newsweek article describes how Ron Book, the lobbyist who had pushed for the Draconian residency restrictions for sex offenders, now recognizes the escalating unintended consequences.
But even Book may find that city and county commissioners who originally voted for his get-tough ordinances won't be so receptive to a softer approach.
Policitians are not easily convinced to back off the concept of getting tough, even when the policy equates to getting stupid.
The mayor of the city of Barre is recommending that officials not fight for an ordinance that regulates where sex offenders can live, nearly two weeks after a judge struck it down. Mayor Thomas Lauzon is recommending the city drop an ordinance that regulates where convicted sex offenders can live.
This comes after a Superior Court judge upheld Barre resident Christopher Hagan's appeal of the city's " Child Safety Ordinance." Lauzon told The Rutland Herald the city should not pursue an appeal because it would be a "waste of time and money."
"Our likelihood of success in appealing the ruling to the state supreme court is extremely remote, Lauzon said. "We could place that item on the local ballot and seek a charter change from the Legislature, but my assessment -- given the current political climate -- would be that the effort would be turned into a political football. Again, our likelihood of success is diminished. I think our time is really best spent in working with the legislature to overhaul the sex offender registry, I think most agree that our registry is remedial at best."
The police are working to debunk a flier that's circulating in the community suggesting a registered sex offender may have been photographing a child on a school playground Tuesday evening.
The police have determined that the man named on the flier was not at the school that night and was not doing what the flier suggests, Police Capt. Robert Nelson said Friday morning.
"We've investigated that. He was not there. We know where he was," Nelson said. "We know everything about him. He's provided alibis, and we've confirmed those. He wasn't there. It wasn't him."
According to Nelson, it all began at about 6:30 p.m. Tuesday when a husband and wife saw a man who they thought was photographing a child on the jungle gym at Wyman Elementary School, located at 1 Columbia Ave. After the couple apparently found a picture of a registered sex offender on an online database -- Nelson doesn't know which one -- and thought he could have been the man they saw, someone else began circulating fliers, according to the police.
The fliers wrongly accuse the man, Nelson said. "The problem is that they kind of went off and did their own thing and were wrong," he said. " ... They jumped the gun but never got the actual facts."
"When you start identifying people and maligning them wrongly, they have civil liability," Nelson said. "So you open yourself up to -- particularly when you put them in flier form, it becomes a problem. Not withstanding the hysteria and concern you cause the neighbors for something that may or may not have happened or may not be legitimate."
The sex offender has been fully cooperative with the police and was appropriately registered, Nelson said.
More stupid Americans raptured up in the hysteria of their own mind, causing harm to someone who did nothing wrong. This vigilante couple should be prosecuted and sued.
Monday, September 21, 2009
momlogic.com : Are Bathtime Pictures Child Porn?
Let's say you take some pics of your kids (ages 1½, 4, and 5) at bath time, and then you go have them developed at Walmart. The Walmart employee sees the pics and calls the cops on you for child porn. Your kids are taken away and you don't regain custody for a month.
That's exactly what Lisa and Anthony "A.J." Demaree of Arizona say happened to them ... and now they are suing Walmart.
Richard Treon, the Demarees' attorney, said the seven to eight bath- and playtime photos of the girls were only part of the 144 photographs from the family's vacation in San Diego.
"There was nothing sexual about it," Treon told WTOP. "This is a parent's worst nightmare."
The couple has filed two lawsuits, one directed at the State Attorney General's office, the City of Peoria, and the state of Arizona. The other lawsuit is directed at Walmart, headquartered in Arkansas.
This morning, they spoke to "Good Morning America" more about their ordeal.
"I don't understand it at all," A.J. Demaree told "Good Morning America." "Ninety-nine percent of the families in America have these exact same photos."
As we reported previously, the Demarees' kids were taken from them for more than month. Their names were placed on a sex offender registry, and Lisa Demaree was suspended from her school job for an entire year.
State v. Atcitty, 2009 N.M. App. LEXIS 112 (June 4, 2009)
• Indian Country
The State of New Mexico had no authority to impose a duty to register on enrolled tribal members, living in Indian country, convicted of federal sex offenses. This was a case involving members of the Navajo Nation who had been charged with state-level failure to register offenses.
Commonwealth v. Wilgus, 975 A.2d 1183 (Pa. Super. 2009)
• Homeless Sex Offender
Because of the way in which Pennsylvania’s laws were written, a homeless and transient person did not have a ‘residence’ to register and, therefore, could not be convicted of failure to register.
U.S. v. Stinson, 507 F. Supp.2d 560 (S.D. W.Va. 2007)
Dismissed defendant’s conviction on ex post facto grounds. Defendant was convicted in 1993 in Michigan, paroled and notified of his sex offender registration obligation in 1996 (his registration obligation was for 25 years). In 2005 he relocated to West Virginia and failed to register as a sex offender. He was charged on March 8, 2007, but the indictment date only covered February of 2007. Following Sallee, the court found that failure to register as a sex offender was not a continuing offense, and that prosecution of this case would constitute an ex post facto violation.
U.S. v. Waybright, 561 F. Supp. 2d 1154 (D. Mont. 2008)
Concluded that the statute which the Government argued required registration, 42 U.S.C. §16913, was not a valid exercise of Congress’ Commerce Clause authority.
U.S. v. Barnes, 2007 U.S. Dist. LEXIS 53245 (S.D.N.Y. July 23, 2007)
Like Heriot and Muzio, found that defendant’s indictment under 18 USC §2250 ought to be dismissed where D traveled prior to the retroactivity guidelines issued on February 28, 2007. Took a different approach to the reasoning, however, finding a Fifth Amendment Due Process violation of defendant’s right to adequate notice and fair warning, citing Lambert v. California, 355 U.S. 225 (1958).
U.S. v. Muzio, 2007 U.S. Dist. LEXIS 54330 (E.D. Mo. July 26, 2007)
Dismissed Defendant’s indictment under 18 USC §2250 because SORNA did not apply to him at the time of his travel (late 2006). Like in Heriot, there was no federal obligation to register until February 28, 2007. Here, though, the court found an ex post facto violation as well.
U.S. v. Mantia, 2008 U.S. Dist. LEXIS 2928 (W.D. La., Jan 15, 2008)
In an opinion with no stated facts, dismissed defendant’s indictment under 18 USC §2250 because of an ex post facto violation.
U.S. v. Aldrich, 2008 U.S. Dist. LEXIS 11411 (D. Neb. Feb. 14, 2008)
Defendant was convicted in 2002 (state court) and 2003 (tribal court) of offenses requiring registration. He failed to register from 2003-2007. His registry address (and actual address, next door) was in Indian Country. He was charged with a violation of §2250 based on living in Indian Country. The court held that failure to register is not a continuing offense, and that his violation of §2250 involved “wholly passive conduct”, and that the ex post facto clause precluded prosecution. The court also found a due process ‘notice’ violation, as well.
From what we have learned, the Courts are refusing to permit affidavits for indigency (appointment of public legal counsel) to those who are contesting Adam Walsh Act/SORNA /Senate Bill 10 in Ohio. Therefore, you must file your own brief to the Court of Appeals. But you can do it, so do not allow the system to intimidate you. Just file it "pro se".
We are providing a sample brief which you can submit to the Court of Appeals in your case, in order to further contest your case where the County Courts are refusing to recognize the constitutional violations of these laws.
Download PDF file here.
Download DOC file here.
Disclaimer : We are not legal professionals or attorneys and we cannot provide legal advice or assistance. We only offer this template for your use to revise as your situation requires.
Sunday, September 20, 2009
The estimated number of "sex offenders" across the nation is approximately 660,000 and growing each and every day. The questions we pose to you are:
1. How do you think these maps will change over time as "sex offender" populations grow in every metro area?
2. Are the locations of sex offenders on these maps making your family safer?
3. Don't we need to find a better way of dealing with the fact that there are this many "sex offenders' registered in every city in our nation?
As part of our efforts in fighting for reforms of these draconian sex offender laws, we believe that listing every citizen with a sex-related crime on the registries dilutes the registries purpose; which apparently is to inform communities where potentially high-risk offenders are located. For this reason, we believe only high risk offenders should be registered to make the registries serve the function for which they were designed. We also believe that these registries should be held by law enforcement authorities only and not made publicly accessible, as this only provides a means for vigilantes to commit acts of violence against the citizens listed on the registries.