Sunday, June 29, 2008

IN Adds Other Crimes To Online Registry Violent offenders added to online registry.

Indiana began posting the names, photos and addresses of violent offenders -- those convicted of murder and voluntary manslaughter -- online in a database that already contained the names of convicted sex offenders.

But many of the offenders, most of whom already have served their court-prescribed sentences, believe the law is comparable to double jeopardy because it punishes them beyond their time in prison.

But Elias Velasquez, of East Chicago, said he feels he is being convicted again.

More than 20 years ago, the 44-year-old man was sentenced to 10 years in prison for the 1987 shooting death of a man in a bar. He served five years in prison and was released in 1993 with good-time credit.

Velasquez said he has stayed on the right side of the law for 15 years -- volunteering his time with youth and helping north Lake County residents secure jobs with the construction company where he works.

But the 2007 amendment to state law now requires Velasquez and other violent offenders to register their home and work addresses with the Sex and Violent Offenders Registry.

"It feels like harassment," he said. "It's kinda like double jeopardy. ... I'm trying to live my life. I'm not bothering anybody."

Welcome to the club, boys. When it's just sex offenders, everyone is okay with it. but when it starts including other offenses, now society cries foul. We all must stop these laws NOW before every offender (past and present) is posted online for the world to see. Join our fight !

Thursday, June 26, 2008

LA To Castrate Sex Offenders Baton Rouge - Louisiana Governor Bobby Jindal Signs Chemical Castration Bill

(As absurd as this is, we must tell you that this is not a joke)

Governor Bobby Jindal today signed the Sex Offender Chemical Castration Bill, SB 144, authorizing the castration of convicted sex offenders.

Governor Bobby Jindal said, “The Sex Offender Chemical Castration Bill is a good bill...

SB 144 by Senators Nick Gautreaux, Amedee, Dorsey, Duplessis and Mount provides that on a first conviction of aggravated rape, forcible rape, second degree sexual battery, aggravated incest, molestation of a juvenile when the victim is under the age of 13, or an aggravated crime against nature, the court may sentence the offender to undergo chemical castration. On a second conviction of the above listed crimes, the court is required to sentence the offender to undergo chemical castration.

This bill also provides that a court may instead order a physical castration instead of the chemical castration. Convicted sex offenders who undergo castration must still serve their full sentence, as their treatment will not affect their sentencing. Under the bill, if a convicted sex offender fails to appear for their chemical castration, they will serve an additional sentence of three to five years.

This will certainly not withstand Constitutional challenge as it is a blatant violation of the 8th Amendment of the United States Constitution, as forced vasectomy has been ruled. Bad move, Bobby.

Nevada Sex Offender Law Challenged Jun. 25, 2008 Las Vegas Review-Journal

ADAM WALSH ACT: Sex offender law tested anew
Constitutionality of law taking effect July 1 challenged

Challenges to Nevada's new sex offender law mounted Tuesday as the American Civil Liberties Union of Nevada filed a complaint in federal court on behalf of 12 sex offenders who claim the law is unconstitutional.

The lawsuit was filed on the same day a District Court judge granted an injunction on behalf of two unnamed sex offenders, which permits them temporarily not to comply with the new law, known as the Adam Walsh Act.

The lawsuit claims the new law, set to take effect on July 1, violates sex offenders' constitutional rights by punishing them for crimes for which they've already served time. It also restricts their movement in that the law prevents them from being within certain distances of schools, parks or day care facilities, the lawsuit states.

On Tuesday, District Judge David Wall granted the preliminary injunction for two sex offenders who filed a challenge to the new law. The injunction, filed by attorney Richard Schonfeld, allows the sex offenders, known only as D.P. and W.L., to not comply with the new law while their case is heard in court. It was granted in part because the sex offenders might win their case, Schonfeld said.

Wednesday, June 25, 2008

Sex Offender Sanctions: Are There ANY Limits?

Sex Offender Post-Incarceration Sanctions: Are There ANY Limits?
-by Richard G. Wright
(PhD in Public Policy, University of Massachusetts, Boston; Assistant Professor of Criminal Justice at Bridgewater State College)

American society has decided that there is no greater villain than the sex
offender. Terrorists, drug dealers, murderers, kidnappers, mobsters,
gangsters, drunk drivers, and white-collar criminals do not elicit the
emotions and evoke the political response that sex offenders do. The intent
of this paper is to empirically substantiate this claim. Central to this
argument is the imposition of post-incarceration sanctions.
One way to discern society’s views about specific forms of criminal
behavior is to examine historical, and contemporary methods of
punishment. In the last fifteen years, all forms of government have pursued
unique ways to control sex offenders after their release from prison or jail.
All criminal offenders are subject to community supervision in the form of
probation or parole conditions. For some offenders, probation and parole
conditions may be quite restrictive and may include random drug tests,
unannounced home visits, searches, and strict requirements for substance
abuse and psychological counseling. Yet, as will be discussed in this
article, there are a number of post-incarceration sanctions that have been
created exclusively for and apply only to sex offenders.

The growth of sex offender post-incarceration controls have come from the federal government,
state governments,and now in an interesting trend, from local cities and towns; all of whom are trying to determine if,
when, and how sex offenders will return to their communities. Specifically,
society has imposed post-incarceration controls on sex offenders’ privacy,
places of residence, travel, employment, sexuality, and reproductive

Sex Offender Boundaries Deemed Ineffective Prohibiting sex offenders from living near schools sounds like a good idea, but such residency restrictions may make it harder to supervise offenders — and without preventing new sex crimes.

Spurred by the visceral public reaction to violent crimes committed against children, lawmakers have introduced an array of strategies designed to control sex offenders and prevent them from committing new sex crimes, including longer prison sentences and parole terms, civil commitment of sex offenders who have completed their prison sentences but are judged to pose a continuing threat, and GPS monitoring of released sex offenders.

Increasingly common are residency restrictions on certain types of released sex offenders, barring them from living within a certain distance (typically 1,000 to 2,000 feet) of a school, playground or other area where children gather

But residency restrictions for sex offenders not only don't seem to be working as promised, there's some indication that by hindering smarter practices they help increase the danger of molestation. And despite their popularity with lawmakers and the public, they have not been universally embraced, even by those in the law enforcement community. A January 2007 resolution passed by the American Correctional Association declares, "There is no evidence to support the efficacy of broadly applied residential restrictions on sex offenders." A 2006 statement issued by the Iowa County Attorneys Association on that state's residency restriction requirements takes a similar view, asserting, "There is no demonstrated protective effect of the residency requirement that justifies the huge draining of scarce law enforcement resources in the effort to enforce the restriction."

A new study, "Does Residential Proximity Matter? A Geographic Analysis of Sex Offense Recidivism," which contains a detailed analysis of 224 sex offenders....(read study here PDF)

The study concluded, "Placing restrictions on the location of correctionally supervised sex offender residences may not deter the sex offender from re-offending and should not be considered as a method to control sexual-offending recidivism."

In analyzing re-offense rates among 130 sex offenders on probation, the Colorado report found, "When controlling for risk, sex offenders living in SLAs had the second-lowest number of criminal, technical and total violations (high-risk offenders in jail had the lowest number of violations)." A technical violation is one that contravenes the terms of either the offender's probation or his treatment and can include such behavior as possession of pornography or "having a sexual relationship with a vulnerable person (for example, dating a woman who has small children)."

Wednesday, June 18, 2008

Another federal district judge finds SORNA unconstitutional Molloy: Sex offender registry rule unconstitutional.

A federal judge in Missoula (Montana) this week ruled that a provision of the national Sexual Offender Registration and Notification Act is unconstitutional and dismissed a felony indictment accusing one sex offender of failing to register in Montana.

In a 44-page opinion issued Wednesday, U.S. District Judge Donald W. Molloy ruled that Congress cannot federally criminalize a sex offender's failure to register in a state-run database. Congress therefore exceeded its authority under the Interstate Commerce Clause by making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction, Molloy wrote. In his order, Molloy dismissed the indictment without prejudice, ruling that the provision “would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life.” US v. Waybright - Re-Registry Provision Struck Down :

Waybright argues Congress exceeded its power under the Commerce Clause by enacting two specific provisions of SORNA—18 U.S.C. § 2250(a) and 42 U.S.C. § 16913. [...] Section 16913 imposes registration requirements on all sex offenders in the United States regardless of whether they travel in interstate commerce.[...] Waybright asserts, even if § 2250(a) is a valid exercise of Congress’ Commerce Clause power, he cannot be convicted under the statute because he should not have been required to register under § 16913 in the first place. According to Waybright, the registration requirements found at § 16913 also exceed Congress’ power under the Commerce Clause. Waybright contends § 16913 is unconstitutional because Congress lacks the power to force citizens who have been convicted of purely local offenses under state law to register as sex offenders.

District Judge Molloy quickly determined that the only way § 16913 could be appropriately upheld under the Commerce Clause would be under the Lopez (514 US 549) theory that there must be a nexus between the statute and regulation of "activities that substantially affect interstate commerce." Given that threshold, the US then argued that there was a substantial connection between the government's economic interest in regulating child pornography (as part of the Adam Walsh Act) could be undercut by not allowing registration of offenders. Molloy easily dismissed this argument:

Section 16913 has nothing to do with commerce or any sort of economic enterprise; it regulates purely local, non-economic activity. While certain sex offenses may be commercial or economic in nature (e.g., child pornography), sex offenders themselves are not necessarily engaged in commercial or economic activity. Even though the Adam Walsh Act regulates some sex offenses that are commercial (e.g., the distribution of child pornography), its regulation of sex offenders is not indispensable to the success of its other provisions. [...] But, any effect on interstate commerce from requiring sex offenders to register is too attenuated to survive scrutiny under the Commerce Clause.

Molloy then rejected an alternative argument made by the government based on the Necessary and Proper clause. Finding no other possible way for the government to justify this Congressional power, Molloy then stated:

Section 16913 is not a valid exercise of any of the congressional powers enumerated in the Constitution. As a consequence, Section 16913 is unconstitutional. To obtain a conviction under § 2250(a), the government must first prove Waybright was required to register under § 16913. Because §16913 is unconstitutional, the government cannot satisfy its burden of proof with respect to § 2250(a). Accordingly, the Indictment must be dismissed.

This is the first district court decision that has declared a portion of the Adam Walsh Act unconstitutional. The government, obviously, plans to appeal to the 9th Circuit Court of Appeals, but we find Molloy's argument to be compelling. Section 16913 has as much to do with interstate commerce as us registering with the local VFW.

One thing to watch for if the government ends up losing its appeal, however, is what Molloy alluded to in his footnote on the constitutionality of the provision. He basically gave Congress a roadmap by which to make the statute constitutional.

In declaring § 16913 unconstitutional, the Court expresses no opinion about the wisdom or necessity of creating comprehensive, national standards for the registration of sex offenders. Nor does the Court mean to suggest Congress could not have achieved the purposes of SORNA in a manner consistent with its enumerated powers. To the contrary, the Court acknowledges § 16913 could be made constitutional by limiting the registration requirement to sex offenders who travel in interstate commerce or by amending § 16913 to encourage the states to enact laws requiring all sex offenders to register.

So far, this case hasn't received much in the way of national legal coverage, but there are a few tidbits floating around:

Tuesday, June 17, 2008

State v. Ferguson : Ohio Sex Offender Law

State v. Ferguson, Case No. 2007-1427. Oral argument May 6, 2008. Does the retroactive application of 2003 amendments to Ohio’s “Megan’s Law” to sexual offenders whose crimes took place before the effective date of those amendments violate the prohibition in the U.S. and Ohio constitutions against ex post facto laws that impose more severe punishment on an offender “after the fact” of his crime than was applicable to his offense at the time it was committed? Oral argument preview. Court Docket and Briefs. Argument Video.

from: Cleveland Marshall College of Law

State of Ohio v. Andrew J. Ferguson, Case no. 2007-1427
8th District Court of Appeals (Cuyahoga County)

The video below is the "Argument Video" before the Ohio Supreme Court in this case. Basically, two areas of law are presented:

1. whether the 2003 amendments to Ohio's Sex Offender Registration Laws were meant to be prospective (looking forward to new offenders) or retro-active ( applying back to before the law was created) ...


2. whether these laws are punitive (punishment) or remedial (remedy to society).

Even the Attorney representing the State of Ohio admits that these 2003 amended laws were not intended to apply retro-actively. Its astounding, really. Even though this case relates to the 2003 amended Ohio Sex Offender Registration Law, it has relation to the 2008 Adam Walsh Act Laws, and the new law is discussed in these arguments. But the arguments that these laws are not punitive is absurd. Instating life-long requirements to register with sheriff's offices up to four times each year until the day you die ( with threat of imprisonment for failing to do so) is clearly and obviously punitive. What is truly insightful is that these public officials are often confused as to which laws they are talking about, and what requirements are included in them.

Watch Ohio Supreme Court Oral Arguments

Tuesday, June 10, 2008

Federal Lawsuits Against Adam Walsh Act

The Adam Walsh Act faces federal constitutional challenges. Two federal circuit courts, the 4th Circuit and the 11th Circuit, are now considering whether Congress violated the Constitution's commerce clause in passing the Adam Walsh Act because challengers allege it has no nexus with interstate commerce. U.S. v. Comstock, No. 06-hc-2195BR, and U.S. v. Powers, 07-cr-221KRS.

But it is Ohio that finds itself in the midst of a legal meltdown because of a shift in sex offender registration law. Ohio rushed to switch from a long-standing state offender registration program to the 2006 federal Adam Walsh Child Protection and Safety Act registration system.

This posting will be updated when more information is found regarding the federal cases.

Ohio Court Rules on Adam Walsh Act

8 May 2008 - Ohio Court of Appeals, Cuyahoga County, 8th Appellate District:

In Ohio, vs Vincent Holloman-Cross, the Court of Appeals refused to recognize the implementation of the Ohio Adam Walsh Act's retro-active application as being punitive in nature.

" The ex post facto clause of Article I, Sections 9 and 10 of the United
States Constitution prohibit:
“1st. Every law that makes an action done before the passing of the
law, and which was innocent when done, criminal; and punishes such
action. 2d. Every law that aggravates a crime, or makes it greater than
it was when committed. 3d Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime, when
committed.” Calder v. Bull (1798), 3 U.S. 386, 390.
{¶ 16} The Sex Offender Registration and Notification Act (SORNA) is
contained in the Adam Walsh Act, enacted on July 27, 2006, which requires
convicted sex offenders to register in the jurisdiction in which he or she resides.
SORNA is incorporated into Ohio law. See R.C. 2950 et seq.
{¶ 17} SORNA requires all jurisdictions to maintain a registry including the
following information regarding sex offenders: names and aliases, social security
number, residence, place of employment or school, vehicle information, physical
description, criminal history, current photograph, fingerprints, palm prints, a DNA
sample, and a photocopy of one’s driver’s license or identification card. 42 U.S.C.
16914. SORNA also sets forth the manner in which sex offenders are to register,
namely, every ninety days, as applied in the case sub judice. 42 U.S.C. 16916.
{¶ 18} The Supreme Court of the United States set forth the framework for
determining whether a statute violates the ex post facto clause:

“We must ascertain whether the legislature meant the statute to
establish ‘civil’ proceedings. If the intention of the legislature was to
impose punishment, that ends the inquiry. If, however, the intention was
to enact a regulatory scheme that is civil and nonpunitive, we must
further examine whether the statutory scheme is so punitive either in
purpose or effect as to negate the State's intention to deem it ‘civil.’
Because we ordinarily defer to the legislature's stated intent, only the
clearest proof will suffice to override legislative intent and transform
what has been denominated a civil remedy into a criminal penalty.”
Smith v. Doe (2003), 538 U.S. 84. (Internal quotations and citations
{¶ 19} Thus, we must first consider whether SORNA is civil or punitive in
nature. SORNA is codified in Title 42 of the United States Code, a section reserved
not for criminal punishment, but for “Public Health and Welfare.” Furthermore,
SORNA’s purpose is to “protect the public from sex offenders and offenders against
children ***.” 42 U.S.C. 16901. Thus, “[i]t is clear that Congress intended SORNA
to be civil in nature.” United States v. Mason (M.D.Fla. 2007), 510 F.Supp.2d 923,
929. Therefore, we find that SORNA is civil and nonpunitive.
{¶ 20} Furthermore, we must consider whether SORNA’s statutory scheme is
so punitive either in purpose or effect as to negate the intent to deem it civil. A review
of SORNA reveals that it deals primarily with procedural issues, including collection
and dissemination of a sex offender’s information, which is indicative of a civil
statutory framework. Thus, “there is insufficient evidence to transform SORNA from
a civil scheme into a criminal penalty.” Mason. The majority of courts that have
addressed this issue as it pertains to failure to register pursuant to SORNA have
found the same. See United States v. Markel (W.D.Ark. 2007), 2007 U.S. Dist.

{¶ 21} Therefore, we find that SORNA, as set forth in the Adam Walsh Act
does not violate Holloman-Cross’ ex post facto protections. Holloman-Cross’
second assignment of error is overruled"

This decision irresponsibly fails to understand the comprehensive nature and onerous requirements instated on offenders who committed crimes BEFORE this law was passed. The requirement does not involve simple dissemination of information, but a requires past offenders to report in person up to four times a year for as long as he lives, in many cases. And to have his personal information and image posted online as a Scarlet Letter, which exposes him to vigilante violence and societal rebuke. THIS IS PUNISHMENT. And this Court is wrong.

Friday, June 6, 2008

SC Court Rules on Retroactive Sex Offender Law

A South Carolina Court of Appeals ruled on June 5, 2008 that the application of the state's amended sex offender registry law was retroactive in this case:

"Prior to 1996, S.C. Code §§ 23-3-430 and 23-3-460 required any person convicted of indecent exposure to register annually as a sex offender. In 1996, the statute was amended to include a person convicted of indecent exposure only “if the court makes a specific finding on the record based on the circumstances of the case the convicted person should register as a sex offender.”

Wiesart appeals the trial court’s ruling that S.C. Code Ann. §23-3-430(14) (Supp. 2007) is not retroactive. We reverse.

Statutes that are remedial or procedural in nature, however, operate retroactively. A statute is remedial and applies retroactively when it creates new remedies for existing rights or enlarges rights of persons under disability.

Wiesart argues the amendment to § 23-3-430 is retroactive because it is procedural or remedial in nature. We agree.""

Tuesday, June 3, 2008

Ohio Official Sex Offender Recidivism Data

This is an Official Report from the State of Ohio
Department of Rehabilitation and Correction
April 2001

Ten-Year Recidivism Follow-Up Of 1989 Sex Offender Releases

Understand that "re commitment for a new crime" includes minor probation violations ranging from not reporting, to any failure to abide by any probation requirement. We know for a fact that probation officers often use any excuse possible to re-arrest a sex offender and they do. In one case, in Ohio, a released sex offender on probation was re-arrested because he shared a name with another sex offender in the county. In another, possession of an "R"-rated movie named "Kids" was used to re-arrest a sex offender on probation. And in another case, a sex offender on probation was threatened with arrest and charges for having a video security system at his residence.

The category of "re-committment for a technical violation " indicates that the sex offender was found to be in violation of his probation and re-incarcerated for violating some probation requirement (see above) .
Therefore, the focus on this data should be on re-arrest for another sex crime. After all, this is what all the societal hysterical concern is all about:

The baseline recidivism rate of sex offenders followed-up for ten years after
release from prison was 34%. This rate was comprised of:

Recommitment for a New Crime 22.3 %

  • For Sex Offense 8.0 %
  • For Non-Sex Related Offense 14.3 %

Recommitment for a Technical Violation 11.7 %

  • For Sex Offense 1.3 %
  • For Sex Lapse 1.7 %
  • For Non-Sex Related Offense 8.7 %
The total sex-related recidivism rate, including technical violations of
supervision conditions, was 11.0%.

Recidivism rates differed considerably based on a victim typology:

Sex offender type General recidivism Sex recidivism

Rapists – (adult victims) 56.6% 17.5%

Child Molester – extrafamilial 29.2% 8.7%

Child Molester – incest 13.2% 7.4%

Sex offenders who returned for a new sex related offense did so within a few years of release. Of all the sex offenders who came back to an Ohio prison for
a new sex offense, one half did so within two years, and two-thirds within
three years.

Paroled Sex offenders completing basic sex offender programming (level 1)
while incarcerated appeared to have a somewhat lower recidivism rate than those
who did not have programming. This was true both for recidivism of any type
(33.9% with programming recidivated compared with 55.3% without
programming) and sex-related recidivism (7.1% with programming recidivated
compared with 16.5% without programming).


The recidivism rate for child -victim sex offenders (outside family) for a new sex-related crime in Ohio is
The recidivism rate for all sex offenders for a new sex-related crime in Ohio is 8.0%

This is hardly the exaggerated claims of recidivism made by the media and hysterical society.
Spread the word, educate society. Ignorance is dangerous.

These Ohio statistics are in line with federal United States Department of Justice data, which reports:

Recidivism Rates of Sexual Offenders (5.3% re-arrested, 3.3% of Child Victimizers re-arrested)
Recidivism Rates for NON- Sexual Offenders (67% re-arrested, 47% re-convicted)

See this page for USDOJ report:


"Research has shown that sex
offenders recidivate at a lower rate than other offenders.

A review of 61 recidivism research studies
involving 24,000 sex offenders found that only 13.4 percent committed a new sex offense (Hanson and
Morton-Burgon 2004). It further shows that when sex offenders do recidivate, they are more likely to
commit a non-sex offense"