2008 Constitutionalfights Stats

Constitutionalfights.org was founded in January 2008. Since then, we have seen a tremendous growth in the viewership of this blog. Here are the traffic stats for our blogs.
With over 11,000 views, overall traffic tripled from June to November 2008, but predictably declined during the Christmas month of December.
Most of our visitors are from Ohio, as this blog focuses primarily on the Ohio Adam Walsh Act laws, but covers news and information about these laws nationally. Second place went to California with Texas, Illinois, New York Florida, Virginia and Maryland following in site hits.
Just slightly over half of our viewers are male at 51%.
68% of visitors are over age 35.
81% white, 9% black, which is not far from the national ethnic distribution.
71% have no children. We would very much like to see more parents made aware of this blog.
50% of visitors earn under $60K income, while 50% earn over $60K.
55% of viewers have a college degree or graduate school education.
Finally, 80% view this blog at home, versus 20% at a workplace.
15% of visits are from hardcore addicts of our blog.
51% of visits are by regular viewers.
34% of visits are from passers-by.

Revamping Juvenile Sex Offender Law

rapidcityjournal.com South Dakota: Court's ruling leads to revamping juvenile sex offender law.

SPEARFISH - The 2009 South Dakota Legislature will be asked to change the state's juvenile sex offender laws because of a November ruling by the South Dakota Supreme Court. The court said in a Nov. 5 decision that the current system for registering juvenile sex offenders is unconstitutional and violates the equal protection clause. The boy, who was ordered to register as a sex offender for the rest of his life. Reindl said she appealed that ruling because it is out of line with adult sex offender laws.

Adult offenders, through suspended imposition of sentence or by petitioning the circuit court, can have the registration requirement lifted. (apparently in South Dakota, this is possible; In most states, it is not).
The statute that required the sex offender registration for juveniles did not offer an "out" of the lifetime registration requirement, Reindl said.

The Supreme Court's ruling has had a significant effect on the state's juvenile sex offender system, according to South Dakota Attorney General Larry Long.

Reindl said there are going to be other issues related to subsequent convictions of people for failing to register although they should not have been on the list at all. "The ripple effects are bigger than any of us contemplate right now," she said.

Reindl said her motivation for pursuing the case to the Supreme Court was in the interest of her client, who would have been branded for life, although adults have a way to get off the sex offender registry.

Reindl blamed far-reaching 2006 federal guidelines for putting pressure on states for lifetime sex offender laws. "I feel the federal legislation, which includes the Jacob Wetterling Act and the Adam Walsh Act, has pressured states into drafting laws for lifetime sex offender registration. The new acts do not match up with existing laws in South Dakota, which were drafted in 1997."

She said these laws can make people feel secure, but sex offender registration laws do not protect the public from convicted violent criminals who aren't required to register.

"The Adam Walsh Act is far-reaching and broad, but does it really protect children from legitimate offenders who are a risk? A protective net could be a tool in this cause, but it's not a perfect solution," she said.

Driving Sex Offenders Underground

midhudsonnews.com (NY): Lawmakers send sexual offender residency law back to committee.

KINGSTON – Passions ran high over a proposed local law that would set restrictions on where high-risk sex offenders could live. The law would “… prohibit sex offenders from residing, having employment or otherwise enter or remain within one thousand feet of areas and facilities that would provide them easy access to potential victims.” That would include schools, daycares, playgrounds and public pools, among other places.

Ulster County Legislature Criminal Justice and Safety Committee Chairman Frank Dart cautioned against acting in haste: “Would you rather have a sex offender that you know is living next door to you, or, have a sex offender and drive him under ground, and you don’t know if he is living behind a plaza, in the woods, and you don’t know where he is?”
“This could endanger the public, if we act too fast," ”warned Democrat Brian Shapiro.

In the end, the Democrats prevailed. The proposed local law goes back to committee.

Bail Conditions of AWA Unconstitutional

NYfederalcriminalpractice.com: SDNY Magistrate Finds Non-Discretionary Adam Walsh Act Bail Conditions Unconstitutional in Child Pornography Possession Case. U.S. District Court • Southern District of New York

In United States v. Arzberger, 08 cr. 894 (AKH/JCF), 2008 WL 5453739 (S.D.N.Y. December 31, 2008), the defendant, who faced charges of receipt and possession of child pornography, opposed the government’s motion to modify the terms of his bail by adding certain non-discretionary conditions set forth in the Adam Walsh Amendments to the Bail Reform Act, including a curfew, electronic monitoring, a direction to avoid contact with any potential witnesses and prohibition from any dangerous weapon. Arzberger challenged the provisions as unconstitutional under the Fifth and Eighth Amendments, both facially and as applied, and that they violated the Separation of Powers Doctrine.

In a lengthy decision, Magistrate Judge Francis first reviewed the sparse precedents on the issue (three of the four of which had found the Amendments unconstitutional), and then analyzed each proposed condition separately under the Due Process clause. He concludes: “The Adam Walsh Amendments are unconstitutional on their face to the extent that they would impose conditions that infringe protected liberty interests without providing the accused with an individualized assessment of the need for such conditions.” The court rejected the defendant’s facial challenge under the Eighth Amendment, held the as-applied challenge under the Eighth Amendment was premature, and also held that the Adam Walsh Amendments do not violate the Separation of Powers Doctrine.

It is heartening to see reason prevail in an area of the criminal law that one Sixth Circuit judge wrote in a dissenting opinion is approaching the hysteria of the Salem Witch trials. In United States v. Paull, No.07-3482 (6th Cir. January 9, 2009), as highlighted on Professor’s Berman’s website here, Judge Merritt filed an opinion that dissents from the court’s decision to affirm a 17.5 year sentence in a child pornography possession case. Judge Merritt begins:

As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography. Our “social revulsion” against these “misfits” downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts.

(Note: it should be noted that the opinion of this magistrate was a dissenting opinion in this case but is important none-the-less)

The Scarlet Letter of the 21st Century

The Adam Walsh Act: The Scarlet Letter of the Twenty-First Century
Lara Geer Farley, Washburn Law Journal

Reforming sex offender laws will not be easy. At a time when national polls indicate that Americans fear sex offenders more than terrorists, legislators will have to show they have the intelligence and courage to create a society that is safe yet still protects the human rights of everyone.

In recent years, the words “sex offender” have transformed into a loosely and frequently used term. Congress and state legislatures have enacted sex offender laws because of highly publicized, horrific crimes, particularly those committed against children. As federal and state governments introduce stricter punishments, requirements, and prohibitions for sex offenders, the offenders become branded by the negative stigma associated with their status. While many sex offenders commit heinous crimes, experts and officials question whether the strict laws imposed against all sex offenders, including non-violent offenders like Evan B., actually increase the safety of those the laws seek to protect.

This Note will argue that the most recent development in this area of law, the Adam Walsh Child Protection and Safety Act of 2006 (AWA), contains over-inclusive sex offender registration requirements and punishments. Implementation of the AWA will undoubtedly cause problems for state governments, law enforcement, non-violent sex offenders, and citizens, both as taxpayers and intended beneficiaries of the AWA. Specifically, the AWA is an unfunded mandate that places severe and unfair registration requirements and punishments on sex offenders, and requires offenders to register without distinguishing between violent and non-violent offenders or evaluating the likelihood of recidivism.

Part II of this Note examines the development of sex offender registration requirements in the federal and state governments. It addresses the transformation from the initial freedom left with the states to determine their own standards to the recent, more expansive, and mandatory federal requirements under the AWA. Part III of this Note discusses the purpose of the sex offender requirements under the AWA and reasons why the AWA’s over-inclusiveness hinders achievement of that purpose. Part IV concludes with a call for reform of the AWA, in order to better achieve the AWA’s purpose.

IV. CONCLUSION
Over the past two decades, federal and state governments have introduced stricter punishments, requirements, and prohibitions for sex offenders. The most recent development in this area of law, the Adam Walsh Child Protection and Safety Act of 2006, contains over-inclusive sex offender registration requirements and punishments. Implementation of the AWA will undoubtedly cause problems for state governments, law enforcement, non-violent sex offenders, and citizens, both as taxpayers and intended beneficiaries of the AWA. If the AWA is not reformed, its requirements will drain public resources, unnecessarily deprive sex offenders of their liberty, and produce few public safety gains. The AWA’s requirements are over-inclusive. The AWA does not differentiate between violent and non-violent offenders. The AWA also does not individually evaluate the likelihood of offender recidivism. Therefore, the AWA does not allow law enforcement officials to focus on the small number of sex offenders who actually need monitoring— offenders who committed severe offenses and are likely to recidivate. Rather, under the AWA, law enforcement officials must attempt to supervise all sex offenders, a daunting task that police have neither the funds nor officers to adequately achieve. As a result, unsupervised sex offenders—both violent and non-violent—slip through the system and the dangerous offenders continue to threaten public safety. A reformed AWA could prevent tragedies like Evan B.’s from occurring. There was no need to require Evan B., a non-violent offender with little risk for recidivism, to register as a sex offender. Evan B. was a high school boy who made an innocent mistake. Unfortunately, over-inclusive sex offender registration requirements did not allow Evan B. to serve his sentence and resume his life. Rather, Evan. B.’s life headed in an ominous downward spiral—his community shunned him; he dropped out of school; he could not find employment; he moved away from his friends and family; he became depressed; and he killed himself. Lawmakers should reform the AWA to require only violent offenders who are likely to recidivate to register. Therefore, non-violent offenders unlikely to recidivate will not be branded as sex offenders—a scarlet letter that may stigmatize them for life. Furthermore, law enforcement officials will be able to focus on only dangerous offenders necessitating supervision and registration. Law enforcement officials will notify community members about violent and dangerous sex offenders that live nearby and will educate them about how to keep their children safe. If reformed, the AWA will successfully serve its purpose as a method of public safety.

Sex Offender Data

While more information regarding statistical myths and falsehoods is posted in our "Truth over Myth" posting in this blog, we felt it was constructive to post this additional official data to once again reiterate that much of the information found online is simply not true. (most of these documents are PDF files).

U.S. Department of Justice Statistics: Recidivism of Sex Offenders Released from Prison in 1994 (latest available):

"Within 3 years following their release, 5.3% of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime."

U.S. Department of Justice Statistics: Criminal Offender Statistics
Sex offenders were about four times more likely than non-sex offenders to be arrested for another sex crime after their discharge from prison –– 5.3 % of sex offenders versus 1.3 % of non-sex offenders.

Child victimizers
* Approximately 4,300 child molesters were released from prisons in 15 States in 1994. An estimated 3.3% of these 4,300 were rearrested for another sex crime against a child within 3 years of release from prison.

State of Michigan, General Recidivism: Parole Board Statistics: 1990 through 2000:
Sex Offenders 2.46% average recidivism.

State of Ohio Department of Rehabilitation and Correction -Ohio Official Sex Offender Recidivism Data:
Recidivism rate for child -victim sex offenders (outside family) for a new sex-related crime in Ohio is 8.7%
The recidivism rate for all sex offenders for a new sex-related crime in Ohio is 8.0%

Child Victims:
Approximately 60% of boys and 80% of girls who are sexually victimized are abused by someone known to the child or the child's family (Lieb, Quinsey, and Berliner, 1998). Relatives, friends, baby-sitters, persons in positions of authority over the child, or persons who supervise children are more likely than strangers to commit a sexual assault.

The National Incidence Studies of Missing, Abducted Runaway and Thrownaway Children : Official Most-Recent Study Statistics from The National Criminal Justice Reference Service: "results DO NOT indicate an increase in child abductions by strangers"

The Victimization of Children and Youth: A Comprehensive National Study (University of North Carolina, University of New Hampshire):
"The great majority of sexual victimizations were perpetrated by acquaintances"

U.S. Census statistics do not record statistics related to crime.
"The Census Bureau releases some statistics on the criminal justice system in our data on government employment and finance, but none on crime, criminals, or victims."
Any statistics you read about sex offenders from U.S. Census statistics is a blatant falsehood.

Furthermore, there is no accurate count of sex offenders within the states or nation, but the numbers are estimated to be approximately 665,000 U.S. citizens who have been convicted of some "sex crime". That' s about one person in 455 U.S. citizens, folks.

Study: Residence Restrictions and ReOffending

Levenson, J. S., & Zandbergen, P. & Hart, T (2009) An empirical analysis:
Residential proximity to schools and daycare centers: Influence on sex offense recidivism. (PDF file)

Study Background and Purpose
Residential restrictions for sex offenders have become increasingly popular despite a lack of empirical data demonstrating that offenders' proximity to schools or daycare centers contributes to recidivism. Using a matched sample of recidivists and non-recidivists from Florida (n-300), we investigated whether sex offenders who lived closer to schools or daycare centers were more likely to reoffend sexually than those who lived farther away.

Results
No significant differences were found in the distances that recidivists and non-recidivists lived from schools and daycare centers. We compared the proportions of recidivists and non-recidivists who lived within common buffer zones. Offenders who lived within 1000, 1500 or 2500 feet of schools or daycare centers were no more likely to reoffend sexually than those who lived farther away. There was a virtually non-existent correlation between reoffending and proximity to schools or daycare centers.

Sex Offenders and Disintegrative Shaming

International Journal of Offender Therapy and Comparative Criminology,
Vol. 53, No. 1, 5-28 (2009)
Sage Publications (registration required to view full text)

Lifers on the Outside: Sex Offenders and Disintegrative Shaming
Monica L. P. Robbers, Marymount University, Arlington, Virginia

This article examines the effects of labeling though informal and formal sanctions on sex offender reintegration, using qualitative analysis from a probability sample of 153 registered sex offenders in four counties in the Commonwealth of Virginia. It also provides an overview of sex offender legislation and literature. Results of the study indicate that the majority of respondents experienced negative treatment because of their status as a sex offender. Results also indicate that formal and informal sanctions are stifling opportunities for sex offenders to be fully reintegrated into society and that treatment programs are not as effective as they could be. Implications for sex offender policy and further research are discussed.

from Sex Offender Statistics

Registering Harm: A briefing book on the Adam Walsh Act

Justice Policy Institute- Registering Harm: A briefing book on the Adam Walsh Act

Congress passed the Adam Walsh Act, a federal law that requires states to include children as young as age 14 on registries — often for the rest of their lives — in an attempt to protect our children from sexual violence. But the Adam Walsh Act won’t keep our children safe. Instead, this law will consume valuable law enforcement resources, needlessly target children and families, and undermine the very purpose of the juvenile justice system. Thankfully, states can opt out of compliance with this law, and make smart investments in programs and policies that will actually protect our children and our communities.

Why expanding registries won’t protect our children.

Congress’ well-intentioned effort to protect our children by expanding sex offender registries won’t work because registries fail to recognize the complex realities of sexual offending. A large percentage of sex offenses are committed by people known to the victim — including family members. A U.S. Department of Justice study shows that, among youth who were victims of sexual violence, almost half (49 percent) of youth under age six and 42 percent of children ages six to 11 in the study were sexually assaulted by a family member. Overall, the study concluded that 34 percent of youth victims (0–17 years old) were sexually assaulted by a family member and 59 percent were assaulted by acquaintances. In other words, only 7 percent of youth victims in this study were assaulted by strangers. Since most people who commit sex offenses are “first-time offenders,” meaning that they have never been convicted of a sex offense, the majority of people committing sex offenses would not already be on the registry. Having a registry can therefore create a false sense of security within families and communities, who might rely on the registry to identify people who may be a threat to their safety.
Being on a registry can hinder a person’s ability to access rehabilitative services needed to lead a productive life and engage in appropriate, legal behavior. Registries can impede access to employment, housing and education, which have been shown to be an integral part of the re-entry process and a necessity for young people who are trying to turn their lives around. Instead of funding preventative programs, registries burden our already over-taxed law enforcement resources and create public safety hazards.

The Adam Walsh Act consumes resources that should be spent on programs proven to protect our children and communities The Adam Walsh Act requires states to register more people and keep track of them for even longer periods of time, without the availability of substantial additional federal funding. All states currently have some form of registry and community notification, but fully implementing AWA poses significant financial and logistical challenges. As an unfunded mandate, the AWA provides little federal funding for implementation and stands to cost states more than they will receive in federal funding. AWA requires states to participate in a national registry and to disseminate the registry widely throughout communities. States that intend to comply with AWA should be prepared to finance new software and technology costs to fully implement the registry.

The Adam Walsh Act needlessly targets children and families

In the push to target people that may actually pose a significant danger to the public, youth convicted of sex offenses have been swept up in legislation that publicly brands them as sexual predators. Research has shown, however, that juvenile sexual offending is very different from adult sexual offending, and that youth are not committing the majority of sex offenses.

The Adam Walsh Act compromises public safety

Reliance on registries creates the illusion that parents can protect their children from sexual violence simply by checking an online database. A survey of mental health professionals found that 70 percent of those surveyed felt that “a listing of sex offenders on the web would create a false sense of security for parents who might feel that they can protect their children simply by checking a web site.” Despite registry requirements and stiff penalties for not registering, registries are often inaccurate and out of date. The result is misdirected apprehension and the alienation of people who live at an address listed on the database, but who have never been convicted of any crime.

In every state, the first-year cost of implementing the Adam Walsh Act outweighs the cost of losing 10 percent of the state’s Byrne grant money. The Justice Policy Institute calculated estimates of the potential costs of coming into compliance with Title I of the Adam Walsh Act based on the fiscal impact drafted by one state. States that complete individual, comprehensive analyses based on their unique statutory and law enforcement characteristics may arrive at different figures. Regardless of individual state differences in statutes, technology, and law enforcement resources, the added staff and technology needed to come into full compliance with the AWA is sure to exceed the Byrne funds that would be lost by not complying.

In the Virginia Criminal Sentencing Commission’s Fiscal Impact Statement for Proposed Legislation, Senate Bill No. 590 – ID# 08-0244808, the state found that implementing a registry and notification system that would be in compliance with the Adam Walsh Act would cost $12,497,267 in the first year of implementation.

Justice Policy Institute: Cost for states to comply with AWA

Court strikes down federal sex offender law

GoogleNews/AP : Court strikes down federal sex offender (civil commitment) law.

RICHMOND, Va. (AP) — Congress overstepped its authority when it enacted a law allowing the federal government to hold sex offenders in custody indefinitely beyond the end of their prison terms, a federal appeals court ruled Thursday.

The law allowing civil commitment of "sexually dangerous" federal inmates intrudes on police powers that the Constitution reserves for states, many of which have their own similar statutes, a three-judge panel of the 4th U.S. Circuit Court of Appeals said.

Civil commitment power "is among the most severe wielded by any government," Judge Diana Gribbon Motz wrote. "The Framers, distrustful of such authority, reposed such broad powers in the states, limiting the national government to specific and enumerated powers."

In upholding a decision by U.S. District Judge W. Earl Britt of Raleigh, N.C., the 4th Circuit became the first federal appeals court to rule on an issue that has divided courts nationwide. A judge in Minnesota reached the same conclusion as Britt, while courts in Hawaii, Oklahoma and Massachusetts upheld the measure.

Thursday's ruling is binding only in the states included in the 4th Circuit: Virginia, North Carolina, South Carolina, West Virginia and Maryland.

U.S. Department of Justice spokesman Charles Miller said it was too early to comment on what steps the government might take next. The department could appeal the ruling to the U.S. Supreme Court or seek a rehearing before the full federal appeals court.

Elizabeth Luck, a spokeswoman for the federal public defender's office in Raleigh, declined to comment. The public defender represented five inmates who challenged the law after they were kept in custody beyond the end of their sentences at the federal prison hospital in Butner, N.C.

Civil commitment was authorized by the Adam Walsh Child Protection and Safety Act, which also establishes a national sex offender registry, increases punishments for some federal crimes against children and strengthens child pornography protections. Those provisions are not affected by the ruling.

The appeals court found no merit in the government's argument that it had constitutional authority to enact the civil commitment law under the Commerce Clause, ruling that "sexual dangerousness does not substantially affect interstate commerce." The government also relied on a clause authorizing Congress to enact "all laws which shall be necessary and proper" for executing federal powers, but the court said that applies only to powers enumerated by the Constitution.

"Congress's perceived need for the sort of civil commitment statute at issue here does not create constitutional power where none exists," Motz wrote. "Congress must instead seek alternative, constitutional means of achieving what may well be commendable objectives."

Motz was joined in the opinion by Judge G. Steven Agee and visiting U.S. District Judge James C. Cacheris.

• U.S. v. Comstock: http://pacer.ca4.uscourts.gov/opinion.pdf/077671.P.pdf