AK Court Rules Adam Walsh Act Retro-Active

Newsminer.com: AK Court Rules Adam Walsh Act Retro-Active

ANCHORAGE -- The Alaska law requiring detailed personal information on sex offenders to be collected and distributed cannot be applied to people who committed their crimes before the law was passed, the Alaska Supreme Court justices ruled.

The decision Friday was brought in the case of a man convicted in 1985 and listed under the pseudonym "John Doe" in the lawsuit.

The Legislature in 1994 passed the Alaska Sex Offender Registration Act.

Justices said detailed personal information about sex offenders required by the law and posted on the Internet cannot be applied to "Doe" or others convicted and sentenced before the law was enacted.

That would violate the ex post facto clause of the Alaska Constitution, justices said. An ex post facto law is a one passed after the commission of an act and which retrospectively changes the legal consequences.

The decision reverses a Superior Court ruling in favor of the state. It was written by Justice Robert L. Eastaugh. Chief Justice Dana Fabe dissented.

Attorneys for "Doe" contend the law substantially altered the consequences attached to his completed crime and that the Alaska Constitution afforded him more protection than the federal version.

State attorneys said the measure was a regulatory law intended to help protect the public, not a penal law aimed at the offender and was not intended to punish convicted individuals for past acts.

Justices disagreed, concluding the law's effect was punitive. It places a severe stigma on all to whom it applies. Offenders face intrusive duties under threat of prosecution and are subject to profound humiliation and community-wide ostracism, the decision said.

State attorneys argued that negative effects on employment and housing opportunities would exist even without the registry and result not from dissemination of information but from the conviction itself. State attorneys said there was no evidence that Alaskans have directed any wrath at convicted sex offenders and that the sex offender registry Web site warns not to commit crimes using information from the site.

Justices did not find those arguments persuasive.

Read this ruling here.

Recent Supreme Court decisions: http://www.state.ak.us/courts/sp.htm

IN Appeals Court Rules Against Sex Offender

Indianalawblog.com: 23 July 2008

Yesterday's Court of Appeals decision in the case of Jesse S. McCown v. State of Indiana (ILB entry here, 5th case, is the subject of a story posted this afternoon by Sophia Voravong in the Lafayette Journal Courier that begins:

A Lafayette man convicted of molesting a 14-year-old girl more than 20 years ago will have to register on Indiana's Sex and Violent Offender Registry, the Indiana Court of Appeals has ruled.

Jesse S. McCown, who was homeless at the time, was found guilty in May 2007 of two Class D felony counts of failure to register as a convicted sex offender and one misdemeanor count of failure to possess identification.

He appealed the decision by Tippecanoe Circuit Court Judge Don Daniel on grounds that his 10-year requirement to register already expired. McCown, who pleaded guilty in 1987 to two counts of child molesting, was released from prison in 1990 and from parole in 1991.

Sex with a 14-year-old is sexual misconduct with a minor under current law, but it constituted child molesting under the law that was in effect at the time of the offense.

"Our position was simply that his 10 year registration ran out a long time ago," Lafayette attorney Bruce Graham, who represented McCown on appeal, said today.

"It's not clear to me how the Court of Appeals concludes to the contrary. I've read the opinion twice now, and I still don't understand their underlying theory."

Graham said he plans to request that the case be transferred to the Indiana Supreme Court.

NJ: Sex-Offender Residency Limits Rejected

AP News: NJ Sex-Offender Residency Limits Rejected

NEWARK, N.J. (AP) — New Jersey towns cannot ban sex offenders from living near schools, parks, or other places where children gather, a state appeals court ruled on Tuesday.

The three-judge panel found that New Jersey's Megan's Law was "pervasive and comprehensive" and should be the only law governing how sex offenders are treated.

The towns banned adults convicted of sex offenses against a child from living within 2,500 feet of any school, park, playground, church or other place "where children might congregate."

Similar laws are in place in many states and dozens of New Jersey towns; those in New Jersey will be at risk if the latest ruling stands.

Appellate Judge Joseph F. Lisa, writing for the court, said the Cherry Hill and Galloway ordinances "interfere with and frustrate the purposes and operation of the statewide scheme."

"Megan's Law is already accepted as constitutional and as the state's comprehensive approach to sex offenders. The residency requirements do not contribute to rehabilitation and may in fact undermine it," said Deborah Jacobs, executive director of the state chapter.

State Public Defender Yvonne Smith Segars filed a brief urging the appeals court to strike down the laws.

"You can't impose unrealistic burdens on people and expect them to reintegrate. They paid their debt to society and are under supervision," Segars said.

* Court ruling: http://tinyurl.com/5tjwo5

Sex Offenders Unlikely to Re-Offend

NewScientist.com: Sex offenders unlikely to commit second crime
06 July 2008, Magazine issue 2663

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 4000 sex offenders released on parole in 2002 were re-imprisoned for another sex offense in the subsequent 5 years, according to new figures from California.

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 ...
The complete article is 322 words long.(subscription required)

Editorial: The uncomfortable truth about sex crimes
24 February 2007, Magazine issue 2592

SEX offenders are a breed apart, notorious recidivists who are driven by deviant sexual desires. That, at least, is the common perception. The facts are rather different. Most sex offenders do not fit any psychiatric diagnosis related to sexual deviance. Reconviction rates for this group as a whole are relatively low compared with other types of criminals. Most importantly, the majority are not a breed apart.

The label "sex offender" is a rag-bag term that covers individuals who have committed a wide range of offenses. Some are nasty opportunists for whom rape or child abuse is just one in a long string of diverse crimes. Most knew their victims: they assaulted acquaintances, family members or friends. Others are young men who had sex with under-age girlfriends. The stereotypical predator, persistently targeting vulnerable strangers, is rare.

While it is true that convicted sex offenders are more likely to commit a further ...
The complete article is 715 words long.(subscription required)

April 2007 Minnesota Sex Offender Recidivism Report:
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.

Nevada Sex Offender Law in Legal Limbo

UPI.com ( Nevada) : Nevada Sex Offender Law in Legal Limbo

CARSON CITY, Nev., July 1 (UPI) -- A U.S. judge says he has blocked Nevada's new sex offender law from going into effect until constitutional challenges are resolved.

U.S. District Judge James Mahan said he was concerned that if the law went into effect Tuesday as planned, low-level sex offenders would be publicly identified on the state's sex offender Web sites. They would then be unable to regain their anonymity if the law is later found unconstitutional, the Las Vegas Review-Journal reported Tuesday.

"It's a matter of due process," he said. Mahan is set to hear arguments Aug. 26 on whether the law is constitutional.

The new Nevada sex offender law is being challenged by the American Civil Liberties Union of Nevada and local defense attorney Robert Langford on behalf of 12 sex offenders. They argue that the change in law is cruel and unusual punishment by punishing sex offenders again for crimes they have already paid for.

It would change the way Nevada classifies sex offenders, who currently are categorized by their risk of re-offending. Under the new law, sex offenders would be classified by the crimes they committed, with the number of Tier 3 sex offenders in Nevada increasing from about 160 to more than 2,500.

Sex Offender Law Controversial

NevadaAppeal.com (Nevada) : Sex Offender Law Controversial

If a new Nevada law concerning sex offenders goes into effect, Carson City will go from zero, to an estimated 23, Tier 3 offenders — a term once used to identify an offender who was believed most likely to commit a sexual crime again.

The increase in Tier 3 offenders won’t be because those people suddenly moved here.

They’ve lived here all along, deemed either Tier 2, “moderate risk” or Tier 1, “low risk” under Nevada’s former system based on a individual assessment of an offender’s risk to the community.

Buckling under the pressure to enact the federal Adam Walsh Child Protection and Safety Act rather than lose out on tens of thousands of dollars in federal funding, Nevada legislators adopted the new system which replaces the individualized risk-based assessments with tier levels dictated by the type of crime committed.

No longer will the tier levels indicate whether or not a sex offender is low risk, moderate risk or high risk to the community.

That, according to the American Civil Liberties Union, is dangerous to the community and in violation of a number of rights afforded individuals in the U.S. and Nevada constitutions.

“The new system is totally divorced now from risk to the community,” said Lee Rowland, northern coordinator for the ACLU of Nevada. “Now all of a sudden the designation of Tier 3 no longer has any relationship to risk.”

On Thursday, Las Vegas Judge David Wall issued a preliminary injunction in a case filed on behalf of two convicted sex offenders who challenged the constitutionality of Assembly Bill 579.

Wall granted the delay until Aug. 29, when he will hear arguments on the constitutionality of the law passed by the 2007 state Legislature.

Another Registry? Not So Fast !

Sunjournal.com (Maine): Another registry? Not so fast ! Tuesday, July 8, 2008

If there's one thing Maine knows about online criminal registries, it's that they carry unforeseen consequences.

The Department of Corrections plans to publish the an online database of 10,000 people serving prison or probation terms. The logic is simple: providing public information, to the public, for the benefit of the public.

Yet this is the same logic that, tragically, helped a Canadian man murder two registered sex offenders in Maine in 2006. Stephen Marshall researched his victims via Maine's online registry.

The murders raised many questions about online registries; Maine's highest court answered some in a landmark decision last year, in which it said the registry had become possibly unconstitutional.

The core problem with criminal registries is stigma. Although those registered earned their inclusion, unless the registry makes clear differentiation among them and their crimes, the public's natural inclination is assuming the worst, which can breed contempt, suspicion and fear.

Just like Hester Prynne, the adulteress in Nathaniel Hawthorne's "The Scarlet Letter," her shame as a public pariah overshadowed her personal attributes. It was impossible for Prynne to seek or earn redemption while her crime was broadcast from the red "A" pinned to her clothing.

The law court's evaluation of the steady expansion of Maine's sex offender registry, which grew to include crimes and criminals dating back decades, echoed this notion.

It must be weighed whether a public registry of probationers and prisoners can preserve their rights, while also providing a valuable public benefit. Could a registry be an incentive against criminal behavior? Will it protect people from harm, or only further castigate criminals?

How does one separate the dangerous from the reformed? Is there a legal liability for the state if the online registry contains misinformation? At what point does a convicted criminal pay their debt to society, if they must register?

Such questions need time to consider. Maine's sex offender registry has existed for years, without yet reaching a conclusion. Before any new registries are opened, a good amount of examination needs to occur.

If there's one thing Maine should know by now, it's not to start a registry, then try to answer the questions later.

Utah Judge Stops Sex Offender Registry Law

KSL.com: Judge bars enforcement of sex offender-registry law. July 1st, 2008 @ 6:45pm
(watch video)

A federal judge has barred Utah from enforcing a new sex offender-registry law, pending the outcome of a suit that could decide whether the law is constitutional.

The suit claims the requirements of the law are a violation of one's right to privacy.

The law, known as House Bill 34, requires registered sex offenders to turn over to the Department of Corrections their passwords to social networking sites like MySpace and Facebook.

Sex Offender Retroactivity Correction Act of 2008

U.S. Congress: Sex Offender Registration and Notification Retroactivity Correction Act of 2008:

Bill Status:
Introduced: Feb 13, 2008
S 2632
110th CONGRESS, 2d Session

"To ensure that the Sex Offender Registration and Notification Act is applied retroactively."

IN THE SENATE OF THE UNITED STATES
February 13, 2008

SEC. 2. REGISTRY REQUIREMENTS.

Section 113 of the Sex Offender Registration and Notification Act (42 U.S.C. 16913) shall apply to sex offenders convicted before, on, or after the date of enactment of that Act.

Call and write your U.S. Senators and Congressmen to tell them to STOP this bill !

Find your U.S. Representative: https://forms.house.gov/wyr/welcome.shtml

Find your U.S. Senator: http://www.senate.gov/general/contact_information/senators_cfm.cfm

Feds Release New Adam Walsh Act Guidelines

U.S. Department of Justice - Office of Justice Programs: New Adam Walsh Act Guidelines.

On July 1, 2008, Attorney General Michael B. Mukasey released the National Guidelines on Sex Offender Registration and Notification. These Final Guidelines, designed to assist jurisdictions with their SORNA implementation efforts, will be published in the Federal Register on July 2, 2008. Following the public comment period on the Proposed Guidelines, the SMART Office reviewed the more than 275 comments received and incorporated several suggestions in the Final Guidelines. In conjunction with the release of the Final Guidelines, the SMART Office published a set of frequently asked questions about the Final Guidelines and Fact Sheets to explain significant changes from the Proposed Guidelines, including revised minimum registration requirements for juvenile sex offenders. (Changes can be read here)

At the end of April 2008, the SMART Office awarded more than $11 million in funding to state, local, and tribal governments. This funding will be used to create or enhance sex offender registration programs, improve law enforcement and other justice agency information sharing as it relates to sex offender registration and notification, and collect, store, and link sex offender biometric data or submit for analysis DNA data for investigative purposes.

Later this month, the SMART Office will host its 2008 National Symposium (July 30-August 1, 2008 ) on Sex Offender Management and Accountability. The symposium will bring together state and federal lawmakers, top state, local and tribal government officials, policy advisors, law enforcement, parole and probation officers, prosecutors, and frontline professionals who monitor, register, track, and manage sex offenders. The symposium also will include special tracks focusing on policy, enforcement, emerging issues, and topics related specifically to tribal governments and sex offender management in Indian Country.

(These laws are to apply to children as young as 14 years of age.)

(Read full text of guidelines .)

(Read FAQ of SORNA guidelines.)

Regarding Retroactive application:
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Section 113: "(d) Initial Registration of Sex Offenders Unable To Comply With Subsection (b)- The Attorney General shall have the authority to specify the applicability of the requirements of this title to sex offenders convicted before the enactment of this Act or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b)."

(Section 113(d) ensures that there will be a means to resolve issues about the scope of SORNA's applicability, including any questions that may arise concerning the retroactive applicability of its requirements to sex offenders convicted prior to its enactment.)

Refusing to Adopt the Adam Walsh Act

HumanRightsWatch: Protecting Children from Sexual Violence: Don't Adopt the Adam Walsh Act
By Sarah Tofte, Criminal Justice Researcher
published in Sacramento Bee

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.