Wednesday, December 30, 2009
A federal judge on Wednesday blocked portions of Nebraska's new sex offender registry law, including provisions that sought to monitor convicted sex offenders' computer usage and prevent them from visiting certain Web sites.
Judge Richard Kopf did leave other parts of the law intact, saying it came close to meeting criteria set for the state by Congress.
Kopf said lawmakers may have gone too far in two areas - both provisions that weren't required under the federal legislation. Those provisions prohibit sex offenders from using social networking sites used by children, like MySpace and Facebook. They also require sex offenders have hardware or software installed on their computers and other electronic communication devices to monitor their activities and to consent to such searches.
Sex offenders who have completed their criminal sentences and are not on probation, parole or court-ordered supervision won't be subject to those provisions, according to Kopf's ruling, which granted a limited preliminary injunction.
The case stems from a federal lawsuit Dornan filed Dec. 16 on behalf of 20 sex offenders, their relatives and employers. It sought to stop the law from taking effect. Dornan argued the new law would allow for retroactive criminal punishment, amount to double jeopardy, permit unreasonable searches and seizures, and violate the rights to due process and free speech.
Nebraska lawmakers changed the law earlier this year, saying the revision was needed to comply with federal legislation passed in 2006. That legislation said that if Nebraska and other states don't publicly register all people convicted of sexual offenses and make other adjustments, they could lose out on federal grant dollars for local law enforcement.
Read complete ruling here: http://drop.io/nebraskainjunction
JOHN DOE and JANE DOE 1 through 20, JOHN DOE and JANE DOE A through K, DOE 12 on behalf of DOES H and K, minors, and DOE G on behalf of DOE I, minor, Plaintiffs,
STATE OF NEBRASKA, et al., Defendants.
Case No. 8:09CV456
30 Dec 2009
Court Order Excerpts:
"In Two Respects, Nebraska Has Probably Gone Too Far. By adding two provisions to the registry framework that are entirely foreign to
SORNA, Nebraska has come perilously close to voiding the entire law for offenders who have served their time and who are no longer subject to probation, parole, or other court-ordered supervision. These two provisions, when taken together, threaten to take a civil regulatory scheme and turn it into a punitive endeavor. For those that have done their time, the Ex Post Facto Clause of the Constitution very likely bars retroactive application of these changes. Moreover, and looking at each amendment separately, one change unquestionably violates the Fourth Amendment (as Nebraska concedes), and the other has the potential to adversely implicate the First Amendment."
"Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled
with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who
are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.”"
I am not a fan of laws like this one. If I had my druthers, I would enjoin the entire law and not just the portions that are probably unconstitutional. I am pretty sure that this enactment will divert attention and money from policing the monsters.
I also worry that this law will incite a virulent form of vigilantism against the hapless. But, my likes and dislikes don’t matter.
In a democracy, we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, “[i]f the people want to go to Hell, I will help them. It’s my job.”12 Let’s get at it!"
"Defendants (Nebraska) are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit: (1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act)."
Tuesday, December 29, 2009
An accused (not convicted) sex offender who was severely mentally and physically disabled in an assault at a Manitoba jail is suing the province, his alleged attacker and correctional staff. N.T. suffered a brutal physical assault at the Headingley Correctional Centre in early April. He was being held on allegations he had sexually assaulted a person at a First Nations community in August 2008.
N.T. was attacked while being held in a part of the jail used by the general inmate population, civil lawsuit documents obtained by CBC News say. The documents allege jail staff members violated a provincial corrections policy of keeping prisoners charged with sexual offences segregated from the general inmate population for their safety. Guards should have known of the danger Tanner was in and kept him away from other inmates, and they failed in their duty to "control and maintain order among the inmates in each of the cell blocks," the documents say.
N.T. suffered massive head trauma and other wounds that left him unable "to speak, comprehend or navigate," and he will need constant medical care for the rest of his life, Tanner's lawyers said. The lawsuit seeks financial damages, court costs and payment for future medical expenses. One day after RCMP were called to the jail to investigate the incident, they said Tanner suffered life-threatening injuries and was being watched closely in hospital because it was suspected he might die.
Quincy Mayor Thomas Koch is reviewing a proposed ordinance that would ban Level 3 sex offenders from entering libraries and parks and from loitering within 500 feet of them.
The ordinance– which would create “safety zones” around the city’s parks, playgrounds, schools and elderly housing– was passed by the city council. It must be signed by the mayor before it takes effect.
“It’s a great step forward, and I wouldn’t be surprised to see more communities follow,” said City Councilor Doug Gutro, who wrote the ordinance with Councilor Kevin Coughlin.
Violations of the ordinance, which would apply only to Level 3 sex offenders – those deemed by the state most likely to re-offend – would carry a $150 fine for a first violation and $300 for each subsequent violation.
The police department would be responsible for enforcing the ordinance and the department of public works would maintain a list of prohibited areas. The proposal includes a provision that would allow sex offenders to enter prohibited areas to vote or attend a religious service.
There are 81 Level 2 sex offenders and 20 Level 3 sex offenders registered in Quincy. Level 2 means the person is likely to reoffend; Level 3 is highly likely to reoffend. (This is a ridiculous generalizing, false statement).
The proposed sex offender ordinance in Quincy would prohibit Level 3 sex offenders from:
- Entering a school, library or day care center unless authorized in writing by an administrator.
- Entering an elderly housing facility unless authorized in writing by a site manager.
- Entering a park or a recreational facility.
- Participating in “a holiday event” involving people 18 or younger unless the parent of one of the children is a sex offender. (Can't invite family members under 18 to join a Christmas party at your own home?)
- Loitering within 500 feet of a school, library, day care center, park, recreational facility, elderly housing and bus stops. “Loiter” is defined as “remaining in or around property and/or buildings” for more than 15 minutes.
A first draft of the ordinance included a provision that would ban sex offenders from living within a certain distance of schools and parks. That was removed after councilors expressed fear the provision would stop offenders from reporting where they live, as they are required to by law. Councilor Joseph Finn said the residency restriction “would have made 99 percent of all housing unavailable” to offenders.
“Study after study indicates that there is no connection between residential proximity and recidivism of sexual crime,” Finn said. “All it really does is make housing an even more difficult dilemma and it creates greater transiency, which in fact increases recidivism.”
Officials in Weymouth passed an ordinance last year that bans Level 3 sex offenders from living within 1,500 feet of any school, playground, day care or recreational facility.
Quincy officials dropped a provision from the ordinance’s first draft that allowed police to arrest sex offenders for loitering in a safety zone. Assistant City Solicitor Kevin Madden told the council that a city cannot pass a law that gives local police the right of arrest.
“It cannot be an arrestable offense,” Madden said of violations of the ordinance. (In other words, they can only fine a violator).
Readers can contact the Mayor here:
Thomas P. Koch, 1305 Hancock Street, Quincy, MA 02169 , Phone: (617) 376-1990, e-mail: firstname.lastname@example.org
and City Council idiots here:
Douglas S. Gutro, Ward 5, 230 Marlboro Street, Quincy, MA 02170, (617) 376-1355, E-Mail: dgutro@Quincyma.gov
Kevin F. Coughlin, Ward 3, 19 Small Street, Quincy, MA 02171 , (617) 328-7749 , E-Mail: kcoughlin@Quincyma.gov
We will work actively to have you removed from office as a result of your foolish actions on this legislation which unconstitutionally bans groups of citizens from public places. Not only are these laws unconstitutional, but they are politically motivated and ineffective to the legitimate goal of supporting public safety. While you may believe your actions are a political "gold mine", the public now understands this type of political pandering and can see it for what it is: a pathetic and ineffective grandstanding and a dangerous violation of citizens' rights.
Monday, December 28, 2009
The Who is scheduled to perform in the Super Bowl half time show this season. But if a pair of watchdog groups have their way, that won't happen, according to ButlerReport.com.
The groups - Child AbuseWatch and Protect Our Children - are incensed that the NFL invited Pete Townshend's band to play February's halftime show, since the guitarist was a registered sex offender in the U.K. between 2003 and 2008. Townshend had to register for that five year period after admitting to breaking the law by searching for child pornography on his computer.
Protect Our Children has not only been protesting the NFL over the Who's inclusion in the Super Bowl. They've also contacted the Immigration and Naturalization Department about the issue. They're calling on a clause in U.S. immigration law which allows authorities to deny entrance to the country to "aliens convicted of - and those who admit - having committed a crime involving moral turpitude."
According to the U.K.'s Guardian, the NFL has responded to the groups with a letter stating that Townshend never faced criminal charges in the matter.
Last year, Child AbuseWatch wrote to the organization behind the Kennedy Center Awards protesting their decision to honor Townshend and his band. The honor went through as planned. The Superbowl takes place Feb. 7 in Miami.
It is heartening to know that Matthew F. ("Pittsfield Twp. man struggles with sex offender label" - Ann Arbor.com, Dec. 15) and others with similar stories are coming forward, and that members of the media are telling of their plight.
Sex offender registries in Michigan and nationwide are growing by leaps and bounds. Sex offender laws implemented in recent years cast a wide net and catch many fish that are awarded equal status with the shark. It’s a system that offers no measurable gain, but creates substantial loss.
Taxpayer dollars are lost to pay for implementation of sex registry laws and oversee compliance. Taxpayer money is lost to fund prosecution, incarceration, or to manage the probation of “offenders.” We’ve lost a controlled and focused sex offender list to a watered-down version that makes it harder to target and prosecute true offenders. We’ve lost rationale and logic to what often amounts to a whipped-up frenzy of fear.
Most sad is the human potential and emotional health lost or diminished when individuals are unfairly demonized and penalized by inclusion on a sex registry. The stigma and restrictions put on anyone who appears on a sex offender list are creating a growing under-society of people who face serious employment, residential and social limitations, and who can do little, if anything, to rise above their circumstances.
Think of the craze to catch “witches” during the Salem Witch Trials. Think of all the “communists” of the McCarthy Era. Sex offenders - regardless of whether they truly are or not - are the latest demons to fear and persecute. One can only hope that more and more “offenders” follow Matthew F.’s example . . . that they step out of the shadows and work to bring understanding and change to the emotional force driving unjust and costly victimization.
The question surfaced regarding Manitowoc not having residency restrictions placed on convicted sex offenders. Residency restrictions have been enacted in more than 25 states. Most often the legislation prohibits sex offenders from living within close proximity (500 to 2,500 feet) of locations where children congregate (schools, parks, day care centers, etc.). In April 2009 the Manitowoc city council considered, but did not pass, a residency restriction ordinance. The council said the promotion of crime prevention and safe behaviors should be a top priority versus creating safe zones.
Minnesota, which has some local residency restrictions, recently conducted a research study of 3,166 sex offenders released from Minnesota prisons from 1990 to 2002, (Duwe, Donnay, and Tewksbury, 2008). The study indicated that of the released sex offenders, 224 were re-incarcerated for a new sex offense before 2006. The results showed that none of the 224 offenders would likely have been stopped by a restricted residency ordinance.
The study noted that many of the offenders (113 of the 224) gained access to their victims through another adult person. The study concluded that residency restrictions would have, at best, only a marginal effect on sexual recidivism and that sex offenders are more likely to be recognized in their neighborhood. It indicated that most recurring sex offenses happened between 1 and 20 miles away from the offender's residence. Offenders pick a residence based on what they can afford and generally pick a victim through an acquaintance or victimize children in their own family.
Communities that have enacted residency restrictions on sex offenders have seen the percentage of offenders that are compliant with the registry drop significantly. Noncompliance with the registry means the information the registry contains is out-of-date and misleading to the public and law enforcement.
Friday, December 25, 2009
A major battle is brewing in Maine over implementation of the nation's so-called Adam Walsh Act. In 2010, Maine is supposed to comply with the federal law, which is aimed at creating similar sex offender policies -- and public Websites -- in all 50 states. One key lawmaker says legislators are likely to balk at some requirements of the federal Adam Walsh Act, which the state is supposed to comply with in 2010.
The co-chair of the Legislature's Criminal Justice Committee says the issue of how to handle convicted sex offenders has been debated by the panel for years. Sen. Stan Gerzofsky, a Brunswick Democrat, says Maine lawmakers have already revised the state's sex offender registry law, but he says he doubts that the changes will meet federal requirements.
Gerzofsky says the federal law requires states to have a publicly-accessible registry that includes teenage offenders, and he doubts that Maine lawmakers will go that far. He says there is broad support to make sure true pedophiles are on a publicly-accessible registry, but he says concerns remain about including everyone who has ever committed a sex crime.
Thursday, December 24, 2009
The Fairfax County man who was arrested for being naked -- in his home -- was found guilty Friday of indecent exposure.
E.W. 29, continued to believe that he had done nothing wrong and that he did not purposely expose himself to two women and a 7-year-old boy who walked past his house the morning of Oct. 19. He immediately appealed his conviction.
A seven-person jury in misdemeanor appeals court will rule on the propriety of Williamson's domestic nudity in February.
Because his roommates were gone and E.W. had the place to himself, he said, he walked down to the kitchen sans garments.
In his closing argument, Defense attorney Dickson J. Young said that "nudity in one's home is not a crime. Under the circumstances of this case, a person who is careless, who should have drawn the blinds and didn't, that is not criminal behavior. If you're in a private place and take your clothes off, you have not committed a crime."
After making his comment that John Dillinger also thought he was doing no wrong, for which Young had no rejoinder, the judge issued his ruling. "I believe from the evidence here," O'Flaherty said, "that the gentleman obviously was intentionally naked in the house. I find that the windows were completely uncovered. The fact that it went on for so long indicates an obscene display, and I find the gentleman guilty."
(See previous post: Nebraska Sex Offender Law Federal Court Challenges.)
A federal judge probably will block parts of Nebraska's new sex offender law from taking effect Jan. 1, 2010. U.S. District Court Judge Richard Kopf said he won't issue a ruling until next week. But he indicated at a hearing Wednesday that he was inclined to bar enforcement of two provisions in the law.
One would require registered sex offenders to consent to searches of their computers or other electronic devices. Refusal to consent would be a felony under the law. The other provision would bar people who have committed offenses against children from using social networking Web sites such as Facebook or MySpace. The provision applies to sites open to children under age 18.
Kopf said he was inclined to let stand other portions of the law, including a requirement to make public the names of all sex offenders.
The state currently makes public only the names of offenders judged to be at high risk to reoffend. Names of those at moderate risk are disclosed to schools, day care centers and religious and youth organizations.
Kopf will consider whether to block a requirement that offenders let authorities install software on their computers and other electronic devices to monitor their Internet use.
A group of 20 convicted sex offenders, along with 11 family members or employers, filed a lawsuit last week asking for an injuction against the new law. The plaintiffs in the suit were identified only as John or Jane Does.
The suit was filed by Omaha lawyer Stu Dornan, a former Douglas County attorney. At the hearing, Dornan argued that the new law is punitive and would unconstitutionally interfere with his clients' right to work, travel and raise families.
“This bill is designed to pile on penalties of a criminal nature,” he said.
Dornan pointed to the provisions making public all sex offender names and requiring offenders to register in person with authorities before spending more than three days in any one place.
In his argument, David Cookson, Nebraska's chief deputy attorney general, said it probably would be unconstitutional to require that offenders consent to searches.
Wednesday, December 23, 2009
Kentucky Attorney General Jack Conway is asking the U.S. Supreme Court to decide whether the state’s restrictions for sex offenders can be applied retroactively to as many as 5,800 people convicted before the limits went into effect in 2006. The 2006 statute made it illegal for registered sex offenders to live within 1,000 feet of a high school, middle school, elementary school, preschool, public playground or licensed day care.
The Kentucky Supreme Court in October ruled 5-2 that the statute was improperly imposed on people convicted before the law went into effect because both the U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law’s enactment.
In a prepared statement, Conway is seeking the Democratic nomination for U.S. Senate (In other words, he is doing this political pandering to appear tough on sex offenders).
Conway’s office on Wednesday filed a petition asking the U.S. Supreme Court to hear the case. The court receives about 10,000 requests a year to review cases and decides only about 80. But the question of the retroactive application of sex offender laws has arisen in several states, making it more likely that the high court will accept the case.
Conway’s office has previously indicated it would appeal. It had asked the state Supreme Court to stay its ruling, but that request was denied. The 2006 statute subjected all convicted sex offenders to the residency requirements, while the old law applied only to about 1,200 offenders who were on probation or parole.
Experts said research has shown that sex-offender registries and residency restrictions don’t deter future crimes. And some criminal justice officials said makes it so difficult for some offenders to find a place to live that they stop reporting their addresses to authorities.
In an unsigned opinion, the Kentucky Supreme Court’s majority questioned the rationale of the restrictions, noting that they bar sex offenders from sleeping near a school at night, “when children are not present,” but allow them there during the day, when children are there.
The petition filed by Conway’s office said that the U.S. Supreme Court has never considered whether the retroactive application of a statute imposing a residency restriction on registered sex offenders constitutes punishment prohibited by the ex post facto clause.
The attorney general’s office contends that the new requirements are not a punishment and are thus not covered under that clause.
It notes that a federal appeals court agreed with that view in affirming the retroactive application of Iowa’s sex offender law.
We urge readers to contact this idiot to make their voices heard, especially those in Kentucky:
Tel: 502-696-5300; Fax 502-564-2894
Office of the Attorney General
Capitol Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601-3449
Again, we see that public officials are not held to the same standard as other citizens when it comes to sex offender registration and convictions.
Fallon, Nev. (AP) ― The son of a Fallon judge has been sentenced to a year in jail for having sex with an intoxicated girl at a party hosted by a former girls softball coach.
Jeffrey Michael Lister, 19, pleaded no contest in October to a gross misdemeanor charge of conspiracy to commit an obscene, indecent or immoral act. He was sentenced Monday by Churchill County District Judge William Rogers.
Lister, the son of Fallon Municipal Court Judge Michael Lister, originally was charged with statutory sexual seduction, a crime that would have required him to register as a sex offender. (In other words, he will not be required to register as a sex offender because he is the son of a judge).
The girl told authorities she got drunk at the January 2008 party and was raped by as many as four boys. Others who allegedly assaulted the girl were under age 18.
Portland, Maine (AP) — Maine’s highest court on Tuesday upheld a lower court ruling that a 1999 law requiring certain sex offenders to be placed on a sex offender registry for life cannot be applied retroactively.
In its ruling, the Maine Supreme Judicial Court gave the Legislature until March 31 to revise the law.
The case was brought by Eric Letalien, a Dixfield man who was 19 when he was convicted of rape in 1996 for having sex with a 13-year-old girl. At the time, he was required to register as a sex offender for 15 years, but was also allowed to seek a waiver from the registry after five years.
Under changes to the law in 1999, he was required to register as a sex offender every 90 days for the rest of his life. The updated law also took away his right to ask for a waiver. In its ruling, the court said it was unconstitutional to apply those changes retroactively.
David Sanders, Letalien’s attorney, said the ruling was a victory for his client. He contends his client and others among the 3,000 people on the registry are not at risk of repeating their sex offenses.
“If this was truly administrative (civil or remedial), wanting to protect society from individuals, then you have to find that the individual in question who’s going to be ostracized, who’s going to be humiliated, who’s going to be shamed, is in fact a risk to society. A mere conviction doesn’t prove that,” he said.
Attorney General Janet Mills said the justices did away with the more punitive aspects of law as they are applied retroactively while affirming the state’s interest in having an Internet sex offender registry. It’s now up to the Legislature to make the changes the court is seeking, she said.
Last year, lawmakers allowed some registered sex offenders to be removed from the registry, upon their request, provided they complete their sentences, commit no additional crimes and meet other standards. In November, the state announced that 100 names of people convicted of offenses that happened between 1982 and 1992 had been removed from the list.
View court ruling here (SOIssues).
Tuesday, December 22, 2009
Omaha - A second lawsuit has been filed seeking to keep a new Nebraska law from adding to the restrictions on sex offenders in January.
The lawsuit, filed in U.S. District Court on Friday by an unnamed Lincoln man, comes on the heels of another lawsuit challenging the law. A two-day hearing on the first lawsuit, filed by a group of sex offenders and their family members and employers, is scheduled to begin Wednesday in Omaha.
The new law will lengthen the amount of time someone would have to register as a sex offender.
The unnamed man who filed the lawsuit on Friday claims, among other things, that extending the registry is unconstitutional because he has already been punished for his crime.
Download complaint here.
Apparently, if you are a police officer (or other public official) who sexually assaults a child, you do not have to register as a sex offender.
Former New London police officer William R. Edwards Sr. apologized to his family this morning as he was sentenced to two years in prison and 10 years' probation for inappropriate sexual contact with a young boy.
The 22-year police veteran had pleaded guilty to risk of injury to a minor, tampering with a witness and violating a protective order.
Because he was so well-known by law enforcement authorities in New London, his case was heard in the Windham County judicial district. State's Attorney Patricia M. Froehlich said Edwards forced the victim, who was 5 to 7 years old at the time, to submit to sexual contact during a self-described "dark period" of his life when he was abusing drugs and alcohol. She said Edwards seemed to have very little insight into his problems based on statements he made during a pre-sentence interview with the Department of Adult Probation.
Edwards, who had served as New London's community police officer, was suspended and then fired following his arrest in January 2009. He had been well-respected in the community, and several people sent letters of support to the court.
The judge said the sentence was in the best interest of the community. He ordered Edwards to undergo sex offender evaluation and treatment, if necessary while on probation. He is to have no contact with the victim and no unsupervised contact with children under 16. He will not be required to register as a sex offender.
Contact State's Attorney Patricia M. Froehlich
Suite 208 120 School Street Danielson, CT 06239
Monday, December 21, 2009
See previous story here: Neb. Sex Offender Registry to Change Drastically
Download MP3 audio here.
Archived audio MP3 here.
Download Memorandum and Order document here.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
JOHN DOE and JANE DOE 1 through 20, JOHN DOE and JANE DOE A through K, DOE 12 on behalf of DOES H and K, minors,
and DOE G on behalf of DOE 1, minor, Plaintiffs,
STATE OF NEBRASKA, et al., Defendants.
A hearing on a preliminary injunction in this case will commence at 11:00 a.m. on Wednesday, December 23, 2009, recess at noon, start again at 1:00 p.m., and adjourn at 5:00 p.m. that day. Without a lunch break, the hearing will commence again at 8:00 a.m. on December 24, 2009, and conclude at 1:00 p.m. During these two days, each side will be given approximately four hours to present their evidence. Evidence may be presented by affidavit or otherwise. Following the presentation of evidence, each side will be given a total of one hour to make their oral argument, with oral argument commencing at approximately 11:00 a.m. Defendants shall confer among
themselves and come to an agreement regarding the allocation of evidence and argument time. The defendants may submit one or more responsive briefs at any time between now and the commencement of the hearing on the preliminary injunction.
Saturday, December 19, 2009
Los Angeles - Shane Sparks, a judge on the MTV show "America's Best Dance Crew", has been arrested for alleged child molestation. Officials with the Los Angeles Police Department say they arrested 40 year old Melvin Shane Sparks in North Hollywood around 8 a.m. Friday on a felony warrant charging him with sexual assault on a child. The alleged assault took place in 1994, according to a criminal complaint.
Sparks, who was also a choreographer on "So You Think You Can Dance", has been charged with two counts of sexual intercourse with a minor, two counts of oral copulation with a minor, and lewd conduct with a child under 14, which is a felony. Sparks is said to have been at least 10 years older than the victim. He He is being held on $590,000 bail.
Sparks shot to fame as a choreographer on the 2004 movie You Got Served before joining SYTYCD.
His work on the Fox reality hit garnered him an Emmy nomination for Outstanding Choreography, after which he was tapped to be a judge on MTV's dance-themed competition, America's Best Dance Crew, which just wrapped its fourth season. Earlier this year another choreographer from "So You Think You Can Dance" was arrested. Alex Da Silva was charged with rape.
Perhaps these cases will shed a brighter light of scrutiny on the increasingly onerous sex offender registration laws in this country.
Tennessean.com : Sex registries for youth: better politics than policy.
State Rep. Debra Maggart (R-Hendersonville) and Senator Diane Black (R-Gallatin) said they will push for passage of legislation in January to place violent juvenile offenders on Tennessee's Sex Offender Registry as required under the federal Adam Walsh Act. The legislators introduced legislation today to place offenders between the ages of 14 and 18 years of age on the Registry.
The bill filed by state Sen. Diane Black and state Rep. Debra Maggart to require the registration of youths convicted of sex offenses will do little to secure the safety of Tennessee children, will have long-lasting consequences for youths on registries and may actually reduce public safety.
The legislators say that their bill will help bring Tennessee into compliance with the federal Adam Walsh Act. Around the country, there is growing discontent with this unfunded and ill-conceived federal mandate. Certainly, youth need to be held accountable for their actions; but registration that can last for decades or a lifetime is not an effective or fair way to do this.
Youths are particularly amenable to change and should not be treated the same as adults. That is the rationale behind a separate system of juvenile justice, which caters to the specific needs of youths.
Registries in effect re-punish youths and may hinder success when they return to the community. Youths on registries often experience rejection from peer groups and positive adult role models and are, therefore, more likely to associate with anti-social peers. They are also less likely to attend positive activities like school and church. The online display of personal information may even put youths or their families at risk.
Furthermore, the fear of having a child on the registry may make parents less likely to seek needed help or treatment for their child (or even report a crime).
Registration may hurt a young person's ability to maintain employment or access education and housing and can hinder his or her ability to access the re-entry services shown to be critical for young people who are trying to turn their lives around.
Registries also create a false sense of security for families who rely on them to identify people who might be a threat.
Registration requirements also overburden law enforcement and take away resources that can be more effectively used to protect public safety. States attempting to implement the Sex Offender Registration and Notification Act have seen law enforcement tasked with database management rather than community protection.
Most people are under the misperception that children are usually sexually assaulted by strangers and that registries are an effective prevention strategy. Sadly, the young woman who spoke at the bill's announcement represents the reality that 93 percent of sexual assaults on children are committed by family members and acquaintances who likely wouldn't be on a registry.
For too long, public policies around sex offenses have been driven by politics and misperceptions. The Adam Walsh Act is one example that will have particularly toxic results, especially for youths.
Instead of passing ineffective, punitive legislation such as the registry, resources should be focused on educating the public about the realities of sex offenses and how to protect their families from sexual violence, and providing better services for troubled youths.
We all want our children and communities to be safe, but the sex-offender registry makes better politics than policy.
A convicted sex offender continues to search for a place to live after the Green Bay Sex Offender Residency Board turned down his second attempt to move into the city. G.S 's appeal was denied Friday afternoon.
This was his second appeal to the city of Green Bay but the third address in to which G.S. , 50, tried to move.
Last month he had a lease for an apartment in De Pere, which the landlord revoked following a public outcry.
Schmidt was convicted in 1986 (23 years ago) of first-degree sexual assault of a child.
He's been living at the Brown County jail, searching for a place to live for about five months.
G.S.'s frustration was obvious following the board's vote. "How am I ever going to get out of jail then, if I can't live anywhere? How am I going to get into life if I can't get out of jail? This is what my problem is," he said. Schmidt will remain living in the Brown County jail for now. He can appeal to live in the city of Green Bay as many times as he wishes.
Here is the result of the social branding and residency restriction laws which have grown like weeds over the past couple years.
We cannot believe the county is constitutionally permitted to post these signs!
Watch video here.
Baker County Deputies said they've put up a sign 10 times to warn neighbors about Torres, and all 10 times the sign was taken down.
The last two signs were put in his yard near the road in concrete. Deputies said the final straw was when they saw Torres in action removing the sign.
"He thinks he can circumvent the law and he can be the only one," Sheriff Joey Dobson said. "We have five predators in Baker County. All of them have signs in front of their houses, and he is no different. He is going to have a sign in front of his house."
Dobson said people will know. He said another sign will go up next week, and it will also be placed in concrete.
"We have made the decision that the signs are the best way to notify the community," Dobson said. "We've done that for years and it's worked properly."
Readers can contact this idiot sheriff here :
Tel: 904-259-2231 , Fax: 904-259-4254
Mike Tollander served two years and will be on Nebraska's sex offender registry for 10 years, but starting next year, that will change. "Now, all of a sudden, it's going to change to a lifetime registry and I don't think that's fair," said Tollander.
Tollander will also have to check in with law enforcement every three months and register all social Web sites he uses and communication devices like computers and cells phones. The new law will place all convicted sex offenders on a public site. How long their listed, depends on the crime.
A federal lawsuit questions its constitutionality, saying "not only is this burdensome on the registrants, but it creates a prohibition on their right to engage in first amendment activity free from government monitoring."
"The new act also infringes on the privacy of the registrant's family roommates or employers by coercing a registrant to give "consent" to search all computers or electronic communication devices "possessed by the registrant."
A federal judge has scheduled a hearing next Wednesday to determine whether a temporary injunction should be issued.
action3news.com : Sex Offender Registry Law Heading To Court.
Earlier this year, lawmakers added stricter guidelines for sex offenders to follow. They'll start January 1st unless one group wins in court. Tough changes that would affect every sex offender on Nebraska's Registry are under fire. More than two dozen unnamed Nebraska residents are suing the state because of the new law.
The new law will make it legal for authorities to search sex offenders vehicle, home, and computers, including where they work at any time. Attorney General Jon Bruning believes the changes will protect children and survive any legal challenge.
A legal decision on whether the changes to the Sex Offender Registry Law is constitutional or not will be made in federal court on Wednesday.
Friday, December 18, 2009
The Ohio Supreme Court accepted two Richland County sex offender reclassification cases for review Wednesday.
Jeffrey Elko and Dennis McGuire are challenging their classifications by the Ohio attorney general, under the Adam Walsh Act.
Richland County Assistant Prosecutor Kirsten Pscholka-Gartner said the cases are among a series of local sex offender reclassification challenges likely to be accepted for review by the state court.
Similar appeals across Ohio are before the court, pending its eventual decision in State v. Bodyke, a Huron County reclassification case the court heard this year.
Richland County Common Pleas Judges James DeWeese and James Henson issued rulings in a series of sex offender classification challenges filed here in 2008. Both judges ruled that Senate Bill 10, also known as the Adam Walsh Act, violated the state constitution's prohibition against applying laws retroactively.
The Fifth District Court of Appeals later reversed those decisions, saying the local judges erred.
2009-1668. Elko v. State.
Richland App. No. 2008CA0220, 2009-Ohio-4557. Discretionary appeal
accepted; cause held for the decision in 2008-2502, State v. Bodyke, Huron App.
Nos. H-07-040, H-07-041, and H-07-042, 2008-Ohio-6387; and briefing schedule
2009-1811. McGuire v. State.
Richland App. No. 08 CA 227, 2009-Ohio-4397. Discretionary appeal accepted;
cause held for the decision in 2008-2502, State v. Bodyke, Huron App. Nos. H-07-
040, H-07-041, and H-07-042, 2008-Ohio-6387; and briefing schedule stayed.
Thursday, December 17, 2009
Pittsboro, N.C. — A judge in Chatham County ruled Thursday that part of the state law restricting the activities of registered sex offenders is to too vague to be enforced, and he declared it unconstitutional.
Superior Court Judge Allen Baddour also dismissed criminal charges against two men who had been indicted under the law because they were around children while attending church.
State lawmakers expanded restrictions on sex offenders last year by banning them from being within 300 feet of any place intended for the use, care or supervision of children and from "any place where minors gather for regularly scheduled educational, recreational or social programs."
James Nichols and Frank DeMaio were indicted in May on charges of violating the law by attending Moncure Baptist Church, which has a nursery and regular programs for children. They challenged the state law, saying it was too broad and denied them their right to attend the church of their choice.
Baddour ruled that lawmakers could have used less drastic means to keep sex offenders away from children, noting they carved out exceptions to allow sex offenders to go on school property to vote or to pick up their own children from school.
"The state has not closely drawn the statute to avoid unnecessary abridgment of associational freedoms in achieving its objectives," he wrote in his 16-page ruling. "Additionally, there are a host of protected religious activities abridged by this statute which do not serve the compelling governmental interest."
Thirty-six states establish zones where sex offenders cannot live or visit. Some states provide exceptions for churches, but many do not.
Baddour let stand the portion of the law that prohibits sex offenders from "the premises of any place intended primarily for the use, care, or supervision of minors," such as schools, children's museums, day care centers and playgrounds.
An ally and reader of ConstitutionalFights forwarded this breaking news to us today.
Omaha, Neb. (AP) - A federal lawsuit is challenging the constitutionality of Nebraska's sex offender registry law.
The lawsuit filed by nearly two dozen unnamed eastern Nebraska residents says the recently revised Nebraska Sex Offender Registration Act infringes on rights guaranteed by the state and federal constitutions.
Among other things, the revised law expands the list of crimes that require offenders to register as sex offenders. Lawmakers said they wanted to remove the guesswork for courts.
The lawsuit says the revamped law imposes retroactive criminal punishment, twice punishes a single offense and amounts to cruel and unusual punishment.
The state, its county attorneys and sheriffs, the State Patrol and Attorney General Jon Bruning are named as defendants.
Case Number: 8:2009cv00456
Filed: December 16, 2009 in Nebraska District Court
Nature of Suit: Constitutionality of State Statutes, Cause: Federal Question
Jury Demanded By: 42:1983 Civil Rights Act
State lawmakers will need to decide whether to comply with the federal Adam Walsh Act on sex offenders or lose federal money for law enforcement. The choice for states is to dramatically increase their registration and community notification requirements for convicted sex offenders by 2010 (extended deadline) or lose significant federal law enforcement grant money. Yet, adoption of this Act will, in fact, harm those who it purports to protect.
It doesn’t seem like a difficult choice. Who wouldn’t want to support laws targeting convicted sex offenders and be paid for it? Yet legislatures from Arizona to Illinois to Rhode Island are leaning against implementing the law. Because once you get past the painful emotions and look hard at the problem of child sexual abuse, it turns out that sex offender registration and community notification laws might not actually prevent sexual violence.
Sex offender laws are based on two popular myths about child abuse: that children have most to fear from strangers, and that sex offenders will repeat their crimes. In fact, over 90 percent of child sexual abuse is committed by someone the child knows. And authoritative studies show that three out of four sex offenders do not reoffend within 15 years of release from prison. In fact, 87 percent of sex crimes are committed by persons with no previous sex offense convictions.
The Adam Walsh Act doesn’t tackle the real dangers to children, and contains disturbing provisions. It requires states to register and identify online children aged 14 and older who commit sex offenses. Many states treat child sex offenders differently than adults, exempting them from community notification. They understand that child sex offenders respond well to treatment and have an excellent chance of rehabilitation – and that crimes they committed as children should not haunt the rest of their lives. Thus the Illinois legislature, knowing it was acting in conflict with the Adam Walsh Act, recently overrode the governor’s veto of a law exempting child offenders from online registration.
In the past, federal law required only that states register sexually violent offenders for 15 years. The new act requires states to register virtually anyone convicted of a sex offense. This would force some states to significantly expand their registries. While it may seem a good idea to place all convicted sex offenders on a registry, law enforcement officials and child safety advocates say that expanding the registry to include all offenders reduces its usefulness in helping law enforcement to identify and monitor individuals considered a real risk to the community.
The Adam Walsh Act also extends from 15 years to 25 years or life the time someone is on a registry and subject to community notification, without the possibility of petitioning to be removed. If Congress had consulted experts on sexual violence, it would have found that the longer a convicted sex offender lives offense-free in the community, the less likely he is to re-offend, which is why experts often advocate giving convicted sex offenders an opportunity to be released from registry requirements upon a showing of rehabilitation.
Implementing the changes required by the act will cost states a lot of money. At a legislative hearing in Arizona, witnesses testified that the state would lose between $700,000 and $800,000 in federal law enforcement grants if it didn’t comply with the law – but that it would cost millions of dollars to expand the state’s sex offender laws to comply with the Adam Walsh Act.
And there are other costs to implementing the act. Subjecting convicted sex offenders to community notification for the rest of their lives may do great harm – both to the individuals and to community safety. Offenders included on online sex offender registries endure shattered privacy, social ostracism, diminished employment and housing opportunities, harassment, and even vigilante violence. Their families suffer as well.
Unnecessarily expansive community notification laws may drive more offenders underground, away from supportive services like treatment, and away from the supervision and monitoring of law enforcement. Harsh enduring consequences also provide little incentive for former offenders to live without re-offending: as one registrant told Human Rights Watch, “No one believes I can change, so why even try?”
Every child has the right to live free from violence and sexual abuse. Promoting public safety by holding offenders accountable and by instituting effective crime prevention measures is a core governmental obligation. But states can address the real problem of sexual violence by refusing to adopt the Adam Walsh Act – and then limiting their registration and community notification laws to individuals identified as posing a real risk to the community.
Nobody is perfect. So, because laws are made by people, then laws can be imperfect, despite their intentions.
After a recent report from the San Diego State-based Watchdog Institute, it has been revealed that some laws are too vague to enforce. One example is the 2006 voter-approved Jessica’s Law, which bans convicted sex offenders from living within 2,000 feet of a school or park. The report showed that in San Diego County, 73 percent of sex offenders are in violation of Jessica’s Law. In Coronado and Solana Beach, 100 percent of sex offenders are in violation of the law, and in the city of San Diego, 86 percent are in violation.
The law, while having the right intentions, is impossible to enforce. Urban neighborhoods and beach communities designed to have a plethora of parks and schools make it impossible for those individuals to live anywhere. This puts a burden of tracking and enforcement on cash-strapped police departments that simply don’t have the resources.
When it becomes impossible for an offender to live a new life after paying their debt to society, there’s no point in releasing them at all. If they’re still a threat, then they shouldn’t be out of prison.
As a result, offenders are then forced to live under the radar of society, running the risk of recidivism or committing a new crime, if there isn’t a plausible place to live. Even during the campaign for Jessica’s Law, Mike Jimenez, president of the California Correctional Peace Officers Association, was against the law. He said by pushing sex offenders into homelessness, it detracts from the purpose of the law to protect others.
For sex offenders, recidivism rates are lower than for other criminals. According to the Department of Justice, “sex offenders were less likely than non-sex offenders to be rearrested for any offense.” The Watchdog Institute cites another Department of Justice study that says only 7 percent of sex crimes against children have been committed by someone once convicted of a sex crime.
On the Megan’s Law Web site, which is a different law forcing sex offender registration, it’s stated that, “90 percent of child victims know their offender, with almost half of the offenders being a family member.” The image painted of a stranger lurking around parks isn’t the reality. Jessica’s Law perpetuates this myth and it is affecting people by the thousands.
An ex post facto law, which retroactively increases the severity of a punishment, is against Article I, section 10 of the Constitution. Jessica’s Law does just that. People could lose homes that have been owned for decades.
Even relocation wouldn’t work, as an apartment complex or compound full of sex offenders has just as much community appeal as a chemical plant. Simply putting all sex offenders in one place is not a rational choice.
In order to fix this problem, the state must reevaluate the necessity of a law that is nearly impossible to enforce. Sex offenders should be monitored, but not in an inefficient manner. The best way to reform Jessica’s Law is to classify offenders by risk. By evaluating offenders by their riskiness instead of lumping them all together in one pot, offenders can be monitored by necessity without expending unnecessary resources. Only then can stiff penalties be given out for violation.
Tuesday, December 15, 2009
Lansing — About once a month, a group of Michigan citizens sit around a table in one of the state Capitol’s ornate committee rooms and plot their uphill revolt.
They probably wouldn’t describe it that way, but the members of the Coalition for a Useful Registry’s professional advisory board do acknowledge they don’t often end up on the winning side of legislative or judicial skirmishes over Michigan’s growing sex offender registry.
But at the group’s Dec. 2 meeting, with members seated around highly polished wooden tables, coalition members — including those with family on the registry — discussed rare “victories” at the legislature and state appeals court, and reviewed a looming deadline to comply with new federal mandates.
Coalition members are united in the view that Michigan has too many people on the sex offender registry who, they argue, aren’t a threat to anyone and don’t merit the stigma of extended punishment on the registry.
With over 45,100 names and faces on the registry of convicted sex offenders –- and even some whose records are conviction-free –- Michigan holds the eyebrow-raising distinction of having the highest ratio of its citizens on a state sex offender registry.
According to an analysis earlier this year by the National Center for Missing and Exploited Children, for every 100,000 Michiganders, 472 are on the registry. That’s more than California (319), Florida (281), New York (148) or Illinois (158) – or any state.
“We’re trying to put a face on this,” said Lynn D’Orio, a defense attorney and member of the advisory board. “That’s why the coalition exists.”
Nine years ago when the coalition was formed, it was mostly driven by family members of registrants who knew first-hand the humiliation and lasting negative consequences of being on the list. “We just weren’t getting very far,” said Shelli Weisberg, legislative director for the American Civil Liberties Union of Michigan and also a board member. “We eventually decided if we put together other professionals who could represent the same views, but back them up with their own professional credibility and their research, that we might have more of a presence.”
Today, the coalition’s professional advisory board counts social workers, juvenile case workers, attorneys and even a former prosecutor as members.
By reviewing legislation and educating state lawmakers, the board hopes to “help convince legislators that the registry needed to be, at least, reformed,” Weisberg said. “We at least need to be logical about how it’s working.”
“There’s a big interest in the registry,” Weisberg added, noting that the last forum for legislators attracted over 20 state lawmakers. “We’re very encouraged with the interest.”
Matthew is struggling to move on with his life, six years after being convicted of having sex with a high school girlfriend who was one year below the legal age of consent.
Matthew, who is required to register as a sex offender, is facing a new criminal charge that accuses him of illegally living within 1,000 feet of a school. His latest trouble started as Freeman was shooting hoops in his Pittsfield Township driveway Aug. 3. According to a police report, a state trooper pulled up to Matthew's house across the street from Ann Arbor's Carpenter Elementary School, where children were on the playground at 7:30 p.m.
Matthew told the trooper Pittsfield Township police told him “it shouldn’t be a problem” to live near the school. He had registered with Pittsfield police 27 days earlier using his family's Dalton Avenue address. Matthew told the trooper he was on the Michigan Sex Offender Registry because he had “sex with his 15-year-old girlfriend when he was 17.” He also said his girlfriend’s mother got “upset with him and pressed charges.”
The trooper aimed a laser gun at the school building and determined Freeman was living 326 feet away, the report said, breaking the law. Matthew, 23, is charged with a school safety zone residency violation, a misdemeanor punishable by up to a year in jail. He was arraigned Dec. 4 and is scheduled to return to court Friday.
Matthew pleaded guilty to fourth-degree criminal sexual conduct involving force or coercion and was sentenced to probation in September 2003, court records show. By pleading guilty to the misdemeanor charge, he admitted to having sex with his 15-year-old girlfriend, who was two years younger. In Michigan, the legal age of consent is 16.
Matthew will remain on the registry until Aug. 17, 2028, according to the registry’s Web site.
Monday, December 14, 2009
The petitioner's brief primarily focused on the statutory interpretation issues in the case. The brief filed partly by our friend, Corey Rayburn Yung at SexCrimes.typepad.com , was solely concerned with the Ex Post Facto Clause claim. You can find the brief here.
Facts of the Case:
An Indiana federal district court convicted Thomas Carr of violating the Sex Offender and Registration and Notification Act. The Act imposes penalties on anyone who is a convicted sex offender, and traveling in interstate or foreign commerce, knowingly fails to register as a sex offender, unless he proves that "uncontrollable circumstances" prevented him from doing so. On appeal, Carr argued that he did not violate the act because he traveled before the Act was passed. The Seventh Circuit held that the Act does not require that the defendant's travel postdate its enactment, and, consequently, affirmed the district court.
1) Can a person be prosecuted under the Sex Offender and Registration and Notification Act when the defendant's offense and interstate travel both predate the Act's enactment?
2) Does the ex post fact clause preclude prosecution under the Sex Offender and Registration and Notification Act when the defendant's offense and interstate travel both predate the Act's enactment?
Peter Aldhous over at New Scientist is reporting on the declining rates of sex offending in California, which I blogged about on June 23 (click here), as well as similar reported declines in Minnesota. The article, "Sex offenders unlikely to commit second crime," begins like this:
Sex crime statistics tend to make depressing reading, but now there is some good news from the most populous state in the US. Just 3.2 per cent of more than 4,000 sex offenders released on parole in 2002 were re-imprisoned for another sex offence in the subsequent 5 years, according to new figures from California.Unfortunately, you have to subscribe to read the remainder of the article, as well as prior coverage of this topic by Mr. Aldhous. However, my June 23 blog post on the new California data is here, and the Minnesota recidivism study is online here. A comprehensive, 225-page report by researchers on behalf of the California Sex Offender Management Board is online here. The data on 5- and 10-year recidivism are a bit hidden at the CSOMB website, but you can get them HERE and HERE, respectively.
While experts know that sex offenders are less likely to reoffend than most other criminals (New Scientist, 24 February 2007, p 3), the very low rate of re-imprisonment in the new study will challenge public perceptions about the risks these criminals pose.
The figures are broadly consistent with a 2007 Minnesotan study, which found that 3.2 per cent of sex offenders released from 1990 to 2002 had been re-imprisoned for a further sex crime within 3 years of their release.
What's more, sex offenders in Minnesota are even less likely to reoffend....
A freelance photographer is crying foul after police arrested him at a West Virginia mall, where he had taken pictures of a child sitting on Santa's lap, according to MyFoxDC.com.
The photographer, Scott Rensberger, told MyFoxDC.com that a man came up to him on Tuesday after he took the photos and asked him to delete them. Rensberger said he complied, but then police officers approached him, questioning him why he was taking pictures of children.
Police say they arrested Rensberger after a scuffle that ensued when he started taking photos of the officers.
Rensberger was charged with battery, resisting arrest and obstruction of justice, but he denies doing anything wrong.
Rensberger said he plans to argue his case in court. "America's gone nuts. We can't take pictures anymore," he said.
Hysteria run a muck in America!
Saturday, December 12, 2009
Phoenix - Arizona has to decide to delay implementing a law aimed at increasing protections from sex offenders.
States are supposed to adopt the Sex Offender Registration and Notification Act, or SORNA, rules by July 2010.
This week, a state committee voted to ask for an extension until 2011. Officials on the committee said Arizona cannot afford to implement the law because of its budget crisis. The startup cost is estimated at $12 million.
"It is extremely expensive,” said Maricopa Juvenile Public Defender Chris Phillis. Phillis also said the law would be detrimental to Arizona. "This is not good for Arizona. It's going to have a very chilling effect,” she said.
SORNA requires juveniles to be listed on the sex offender registries. Experts said juveniles rarely reoffend and would be irreparably harmed by being listed on the registry, which defeats the rehabilitative purpose of the juvenile justice system.
The law adds to the number of crimes that require registration. For example, anyone convicted of public urination would be required to register as a sex offender. "We're not going to be registering and watching the right offenders,” Phillis said.
Phillis said parole and probation officers would be forced to keep an eye on many people who are not a danger to society, thereby spending less time watching sex offenders who are a threat.
Friday, December 11, 2009
Omaha - The Nebraska Supreme Court has reversed an order calling for a man convicted more than 10 years ago to re-register as a sex offender.
John Ways Jr. was convicted of pandering in 1996 and served two years in prison. Last year, Ways' was found guilty of contempt of court for failing to register as a sex offender, as a judge had ordered in 2002. Lancaster County District Judge Robert Otte determined that because Ways had spent less than five years on the registry and had been ordered to spend 10, Ways would have to re-register and remain registered until early 2014.
But in its ruling Friday, the Nebraska Supreme Court said the lower court didn't have the authority to determine the duration of Ways' registration.
S-09-0017, State v. John S. Ways, Jr. (Appellant). View Decision here.
Proceedings: The Appellant pleaded guilty to criminal contempt as part of a plea agreement. He was sentenced to 54 days in the county jail with credit for 76 days and a $1000 fine. The trial court also re-notified Appellant of his obligation to register as a sexual offender under the Nebraska Sex Offender Registration Act (SORA). Due to his failure to previously register under the SORA, the trial court informed Appellant that his registration under the SORA would not end until April 9, 2014, subject to any modifications to the SORA.
Issues: The district court erred in (1) requiring Appellant to register as a sex offender after June 24, 2008; (2) amending Appellant’s registration as it lacked jurisdiction and was a collateral attack of a prior district court order.
State of Nebraska, appellee, v.
John S. Ways, Jr., appellant. N.W.2d
Filed December 11, 2009. No. S-09-017.
Judgments: Appeal and Error. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
Because we find it to be dispositive, we first address Ways’ assertion that the portion of the December 4, 2008, order regarding Ways’ SORA obligations in the criminal contempt case was an improper exercise of authority by the district court. We conclude that the district court lacked authority in the criminal contempt case to address issues regarding SORA registration requirements arising from Ways’ conviction in the separate earlier criminal case of pandering.
The present case regarding criminal contempt was a separate action and not part of the action in which Ways was convicted of pandering. The information in the present case, filed in late October 2008, charged Ways with two counts: failure to register under SORA and criminal contempt for disobeying the January 31, 2002, order in the pandering case ordering Ways to register. The information put Ways on notice of the charges against him. See State v. Kennedy, 251 Neb. 337, 557 N.W.2d 33 (1996) (information setting forth specific acts constituting offense gives adequate notice to defendant). The count of failure to register was dismissed as part of a plea agreement, and Ways pled guilty to criminal contempt. Notwithstanding the limited scope of the present case, in its sentencing order of December 4, 2008, the court exceeded the sentencing necessary to dispose of the criminal contempt identified in the information and addressed issues regarding registration requirements related to the pandering case.
In this criminal contempt case, we conclude that the district court was without authority to enter an order regarding the duration of Ways’ SORA registration requirement, which was a consequence of his conviction for pandering in a separate criminal action. We therefore vacate that portion of the sentencing order of December 4, 2008, which orders Ways to register until at least April 9, 2014, and affirm the remainder of the sentencing order.
Affirmed in part, and in part vacated. Heavican, C.J., not participating.
Of course, Andrew Cuomo did not put it in so many words, but his latest press release has announced that Classmates.com, as well as a host of other social networking sites, have signed up to receive Internet identifiers of registered sex offenders.
New York's e-STOP allows the internet identifiers of registered sex offenders to be released to any "authorized internet entity," defined as " any business, organization or other entity providing or offering a service over the internet which permits persons under eighteen years of age to access, meet, congregate or communicate with other users for the purpose of social networking."
The Terms of Service of Classmates.com require users to be at least 18.
I have not yet checked all of the other sites listed in the press release.
As I have written elsewhere, this is basically a placebo law. An article from CNET News
It is one thing for Attorney General Cuomo to advocate an unconstitutional law, but another to arrange breaking the same law. New York's Sex Offender Registration law states: " The unauthorized release of any information required by this article shall be a class B misdemeanor."
Tuesday, December 8, 2009
State Representative Debra Maggart (R-Hendersonville) and Senator Diane Black (R-Gallatin) will push for passage of legislation in January to place violent juvenile offenders on Tennessee’s Sex Offender Registry as required under the federal Adam Walsh Act. The legislators introduced legislation today to place offenders between the ages of 14 and 18 years of age on the Registry.
Readers in Tennessee should contact these two political puppets and explain to them what is happening in Ohio, where two Supreme Court cases are currently being decided on the constitutional violations of the Adam Walsh Act on juveniles.
Monday, December 7, 2009
Subsequent to the Supreme Court's 2008 decision in District of Columbia v. Heller, declaring the right to keep and bear arms a fundamental individual right, federal courts in New York and Washington have held that denying the right to bear arms based only upon mere arrest is unconstitutional.
At issue in those cases was the constitutionality of the 2006 Adam Walsh Child Protection and Safety Act which prohibited persons arrested (not yet convicted) for child pornography from possessing guns. A federal judge in New York said that it is unconstitutional for an
"accused person be required to surrender his Second Amendment right to possess a firearm without giving that person an opportunity to contest whether such a condition is reasonably necessary in his case to secure the safety of the community."
United States v. Arzberger, 592 F. Supp. 2d 590 (S.D.N.Y. 2008). Echoed another federal judge, this time in Washington:
"the Supreme Court held that the Second Amendment created an individual right to possess firearms. If the government's position in this case is sustained, this constitutional right would be taken away not because of a conviction, but because a person was merely charged."
United States v. Kennedy, 593 F. Supp. 2d 1221 (W.D. Wash. 2008).
Sunday, December 6, 2009
Contempt charges will proceed against radio broadcaster Derryn Hinch after he failed in a Supreme Court bid to challenge the legitimacy of suppression orders he allegedly breached by naming two sex offenders. Hinch is facing five charges of contempt of court for naming the offenders at a victims of crime rally in June last year, and on his website.
Justice Robert Osborn said courts had repeatedly recognised that the rehabilitation of offenders was in the public interest, and this could be jeopardised if identities were published.
Hinch has been jailed previously for naming a sex offender in defiance of the courts. He served 12 days' jail in 1987 after revealing on radio the prior convictions of a pedophile.
Saturday, December 5, 2009
You have now reached the 1000 signature mark on the petition against the Ohio and national Adam Walsh Act Sex Offender laws ! If you are a reader of this blog and have not yet signed the petition, please do so today. Only your name is posted on the petition listing. Share the petition with others, and post a link to appropriate websites and blogs.
There are unintended consequences, counselors and offenders say, of a 2006 county ordinance that expanded residency restrictions for offenders and predators. The ordinance is under renewed scrutiny after the arrest last month of a group of homeless sex predators in Auburndale.
Supporters have said the ordinance is for the protection of the public, but critics say that it's had the opposite effect. It's increased the number of homeless sex predators and offenders, actually increasing the likelihood of further offenses.
"Desperate people do desperate things if they feel like there's no hope," Edward said in a recent interview. He is currently living on-and-off with family in Auburndale. "People can change. They have to want to. But if they're told everyday that they can't, why would they believe that they could?"
Polk County is among several Florida counties that have gone beyond state law to expand restrictions. Now many counties are facing similar challenges, and offenders and those who treat them say county commissioners should rethink the ordinance.
The part of the ordinance that "hurts the most" is the rule that predators must live at least 1,000 feet away from school bus stops, he said. While the ordinance keeps predators from living nearby, it does little to prevent them from treading near restricted places, he said. That means it's ineffective in preventing wayward offenders from offending again.
The process for finding a residence is mainly trial and error. Once an offender has found a potential residence, he or she contacts their probation officer or the Sheriff's Office. The Sheriff's Office plugs the address into a computerized mapping system that shows whether or not it is out of a restricted zone. If it's not, it's back to the drawing board, and the offender must try again. Although the DOC is allowed to provide offenders and predators with some guidance, both it and the Sheriff's Office say they do not tell offenders where they can live. They're on their own for that.
The DOC admits the ordinance has made finding housing more challenging for offenders. Crump, the former probation officer for the DOC, said the ordinance has also placed an extra burden on law enforcement by making it more difficult to track offenders.
And treatment providers like Brimer say the ordinance ignores the reality of sex offenses - that most are not committed by strangers. In two years of child sexual abuse investigations by the Polk County Sheriff's Office, 94 percent of crimes were committed by suspects the victims knew, like Edward, including family members, friends and acquaintances.