Commerce Clause Rulings

Sentencing Law & Policy : Two significant sex offender rulings on constitutional issues from the Eighth Circuit.

As noted on this official opinion page the Eighth Circuit has released two significant sex offender rulings today. Here are the basic detail (and links) from the unofficial summaries on that page:

United States v. Roger Dean Tom, No: 08-2345 -- District court erred in finding 18 U.S.C. Sec. 4248 (the "Adam Walsh Act") was an unconstitutional exercise of Congress's powers under the Commerce Clause; Congress, having been empowered by the Commerce Clause to criminalize and punish the conduct of which defendant is guilty, has the ancillary authority under the Necessary and Proper Clause to provide for his civil commitment so that he may be prevented from its commission in the first place; 18 U.S.C. Sec. 4248 does not upset the delicate federal state balance mandated by the Constitution.

United States v. Scott Hacker, No: 08-2427 -- SORNA's registration and penalty provisions are valid exercises of Congress' authority under the Commerce Clause; Hacker lacks standing to raise a Tenth Amendment challenge to SORNA; Hacker lacks standing to assert an argument that Congress impermissibly delegated to the Attorney General the authority to determine SORNA's retroactive effect; Hacker lacks standing to challenge the interim rule on APA grounds.

More Places to Ban Sex Offenders

citizen-times.com (Asheville, N.C.) - Sex offender bill gets specific.

Legislators moved today to reverse what they say could be unconstitutional limitations on sex offenders' movements. They want to scale back a law they passed last year that now is keeping some sex offenders from church, and could also ban them from some restaurants, libraries and stores.

Trying to avoid further unintended consequences, lawmakers this time are getting more specific about where they don't want sex offenders to go, including:
• amusement parks.
• arcades.
• toy stores or toy departments.
(want to shop for a Christmas gift for your nephew? The government will arrest you)
• movie theaters that are showing G-rated or PG-rated films.
(want to go to a cinema with a friend? The government will arrest you)
• colleges, unless the offender is a student there.
(want to attend an art exhibit or concert at the local college? The government will arrest you)
• gyms and fitness centers.
(want to get fit and live a healthy life? The government will arrest you)
• state and county fairs.
• school bus stops.
• libraries during children's programs.

These add to existing restrictions on schools, children's museums, child care centers and nurseries.

The proposal by Rep. Rick Glazier, D-Cumberland, specifically allows offenders to attend places of worship, as long as religious leaders know about their status and give them permission.
(want to go to church? The government will arrest you if you don't tell your pastor you're legal history)

The proposal was unveiled and endorsed by a House committee today. It could receive a House vote this afternoon.

We urge all readers in North Carolina to contact this idiot legislator, Rick Glazier at:
Phone: 919-733-5601
Email: Rick.Glazier@ncleg.net
Legislative Mailing Address: NC House of Representatives
16 W. Jones Street, Room 2215
Raleigh, NC 27601-1096

Sex Offenders Just Like Us

stuff.co.nz : Criminologist says : Sex offenders are just like us.

Sex offenders are just like the rest of us, according to criminologist and researcher Philip Birch.
Birch, who has come from the United Kingdom to take up a position at the University of New South Wales (UNSW), challenges the notion that sex offenders are psychologically damaged, lonely, insecure or dysfunctional.

Instead, he says we are more likely to find offenders in our homes, workplaces and neighborhoods than lurking behind a bush in a dirty trenchcoat.

"It serves us well to construct the sex offender as the `other', (to believe) they're not like us, that there's something pathologically wrong with them," Birch says. "It serves us to have these theories that give us grand explanations why they commit such offenses, when actually it's a little bit more complex.

"The attacker is usually known to the victim. They are our fathers, they are our brothers, they are our uncles, they are our family members. They are our next door neighbours that we invite around for a barbecue and a beer."

Birch, who recently delivered a seminar entitled The Making of a Sex Offender at UNSW, bases his conclusions on a study he conducted two years ago that later became the book Sex as Crime?, published in 2008.

Birch set out to test previous research linking sex offenders to so-called "insecure attachment styles".
Attachment styles are developed with a main caregiver between the ages of six and 24 months and act as a "blueprint" for our relationships in later life, he says. A child who has an uncaring parent is likely to develop an insecure attachment style, he says.

"Research indicates these insecure attachment styles are mapped into sexual offending," he says. "Sexual offenders demonstrate high levels of insecure attachment styles." But when Birch compared attachment styles among sexual offenders and non-offenders, he found no evidence that offenders were more insecure than the non-offending population. "My non-sex offending population sample actually demonstrated higher levels of insecure attachment styles than the sex offenders," he says.

What this implies, Birch says, is that rather than a person being destined to become a sex offender, it's something we all have the capacity for, given the right circumstances.

"I argue that attachment styles. . . change and develop and will always map on to the environment we find ourselves in," he says. "That would imply that any one of us at any given time. . . could be a sex offender."

He says this is consistent with what is known about sexual crimes: "(They are) more likely to take place in the home, more likely to be committed by someone we know, it's our fathers, our brothers, our uncles."

Birch says the portrayal of sex offenders in the media and films, such as the troll-like pedophile played by Jackie Earle Haley in the movie Little Children, fuels the stereotypes his research challenges.
"That sends out the message that they're a homogeneous group, and we know they're not," he says.

Birch says his research also has implications for getting a realistic image of sexual offenders and understanding where potential victims are most likely to be at risk. "We construct the sex offender as `the other' but they're not, they're living amongst us, with us, between us.

"The likelihood of knowing one is probably high."

Taking Professional Licenses from Sex Offenders

necn.com (Boston) : Call for stricter sexual offender registry.

Republican State Representative Karyn Polito has spent much of her political career fighting for tougher legislation when it comes to sex offenders in the Bay State. Now, she is taking that fight a step further after learning a man convicted of groping a teenage girl and exposing himself on the MBTA Green Line still holds a state license to sell real estate. "When it comes to holding a license, that's a privilege," Polito said.

She's drafting legislation that would expand the list of crimes requiring offenders to register with the state -- it would also bar those offenders from getting any professional state license.

So this idiot legislator from Massachusetts wants to make it even more difficult for ex offenders to re-integrate into society, and to have any profession which requires a professional license. These kind of foolish lawmakers are what put our communities at greater danger, by ostracizing ex -sex offenders to be branded for life, and making it impossible to re-integrate into normal lives. We urge all readers in Massachusetts to contact this woman to insist that she become more informed on this issue.
Telephone: 617-722-2230 District Office: 508-845-2300
E-Mail:Rep.KarynPolito@hou.state.ma.us

Watch Video Report: http://www.necn.com/Boston/New-England/2009/05/11/Call-for-stricter-sexual/1242090985.html

Finally, Common Sense from the Media

Philadelphia Enquirer : Editorial - Sex-offender laws.

State legislators should halt plans to tamper with a New Jersey Supreme Court ruling that prevents towns from creating "pedophile-free" zones.

The state Supreme Court last week upheld a lower court's decision nullifying sex-offender residency laws in Cherry Hill and Galloway Township, Atlantic County.

About 120 municipalities throughout New Jersey have adopted ordinances restricting where sex offenders can live. In Cherry Hill, the local law banned convicted sex offenders from living within 2,500 feet of schools, churches, parks, or other places where children might congregate. That meant nearly the entire township was off-limits.

The court ruled that such restrictions interfere with the statewide Megan's Law of 1994, which requires that paroled sex offenders register with authorities. The registry cannot be used to deny housing to offenders, which is what the local ordinances did.

A patchwork of local residency bans only serves to drive paroled offenders underground. The public is more likely to be protected if parole officers know where the offenders are living and monitor them regularly.
Besides, a ban on living in a township can't stop an offender from driving through that town.

The instances in which strangers abuse children are horrible, and they get intensive media coverage. But those cases are not the norm. About 90 percent of child sexual abuse is committed by a person known to the child, usually a family member.

Legislators in Trenton are pushing bills that would get around the court ruling and again give municipalities the ability to ban paroled sex offenders. It's not an effective way to attack this difficult problem. A better option is to make sure enough parole officers and treatment programs are working with offenders and keeping track of them.

Implications of the "Holier-than-Thou Effect"

writ.news.findlaw.com : Implications of the "Holier-than-Thou Effect" For Criminal Justice.
By Sherry F. Colb , Professor of Law and Charles Evans Hughes Scholar at Cornell Law School

Excerpts:

Theorists of criminal justice typically cite four reasons for punishing people who commit crimes. One is retribution, the moral desire to make a person who has acted wrongfully suffer and thus pay for his mistakes. Within retributive theory, we can ask, for example, whether a person who rapes but does not kill a child deserves to be executed. In conducting proportionality review under the Eighth Amendment ban on cruel and unusual punishments, the U.S. Supreme Court, in Kennedy v. Louisiana, answered this particular question in the negative.

The retributive approach to crime is, in some sense, the purest. Rather than utilizing the apprehended criminal (and his penalty) as a means of shaping others' behavior, the retributivist examines the content of the criminal's character, as manifested by his conduct, and decides what the proper penalty would be, putting aside instrumental considerations.

In contrast, a second common reason for punishment is deterrence, both general and specific. In general deterrence, penalties aim to scare aspiring criminals, as a group, into changing their evil ways. At best, general deterrence prevents people from offending before anyone has had to suffer punishment – that is, the law on the books chills misconduct without having to be enforced. In reality, of course, people do offend and thereby "test" the threat of the criminal law, and their penalties then serve to emphasize, for others, the downside risk of crime.

Specific deterrence operates at the level of the particular person receiving the punishment; by suffering the consequences of his actions, he learns for the future that "crime doesn't pay" and avoids reoffending.

A third objective of criminal punishments is to incapacitate offenders and thereby restrain them from committing further crimes. In the case of imprisonment, for example, a person who is living inside a penitentiary does not have the same opportunities to engage in anti-social conduct as he would on the outside. A sentence of death, once executed, ensures that the offender can no longer hurt anyone. Accordingly, some juries consider "future dangerousness" as an aggravating factor when deciding whether to sentence a killer to death. For extremely dangerous offenders, a prison term alone might not be sufficient to prevent them from killing again.

Fourth, criminal punishment may direct itself toward rehabilitating offenders. The phrase "house of corrections" and the word "reformatory" reference this objective and imply that a person who commits a wrongful act can be changed into the sort of person who would no longer do so. Rehabilitation might involve therapy or behavioral conditioning (A Clockwork Orange explores the potential dark side of this approach), but it treats criminality as a pathology or defect that is subject to reform.

The holier-than-thou effect might, however, help us to see that many of the people who are languishing in prison are not "worse" people than their law-abiding counterparts. Indeed, we might have behaved as they did under the "right" circumstances. This view does not mean that we cannot punish criminals, but it does call into question the conclusion that most convicts are beyond redemption and should be, in effect, written off with long, life-destroying prison sentences. Indeed, the situation-dependent nature of behavior counsels against surrounding a person convicted of wrongdoing with other criminals for long stretches of time, during which he will be almost entirely cut off from what lawful behavior in civilized society looks like. Shorter and less brutal sentences, coupled with humane and educational transition opportunities for former prisoners, could yield better results for everyone.

To take into account the holier-than-thou effect might also facilitate the forgiveness necessary to our ability to think logically about the problem of crime. If we are filled with rage and hatred (which are often themselves a very understandable response to crime), it will be more difficult for us to imagine, and thus to allow, that someone who committed a bad act in the past might soon become (or might even have already been) a contributing member of society.

As of early 2008, the United States had the highest documented per capita rate of incarceration in the world. More than one in every one hundred adults here were in prison. Of Americans in prison, between twenty and forty percent were estimated to be infected with Hepatitis C virus, and the prevalence of prison rape contributed to a high rate of HIV infection as well. If we are able to say of at least some of these offenders that "There but for the grace of God go I," we might begin to consider the changes necessary to fix our broken system.

VT to Quintuple Size of Internet Sex Registry

fox44.net : Lawmakers quintuple size of Internet sex registry.

Vermont lawmakers have passed a bill quintupling the size of the state's Internet sex offender registry. The action Saturday,moves Vermont closer but still not into full compliance with a 2006 federal law designed to make responses to sex crimes more uniform around the country.

Many may believe that this bill would make communities safer, but expanding these registries to a wider range of offenses actually make enforcement and vigilance less effective, not more so. We have discussed this many times and posted evidence of this fact elsewhere in this blog.

VT Sex Offender Sues City over Residency Ban

timesargus.com (Vermont) : ACLU-Vermont challenges Barre sex offender residency restrictions.

The American Civil Liberties Union Foundation of Vermont has filed a lawsuit against the city of Barre on behalf of a man who has been told that he cannot live with his wife and children in the city solely because of his criminal record.

The suit was filed in Washington Superior Court on behalf of Chris Hagan, a Vermonter who moved to Barre with his family this spring. The lawsuit challenges the legality of a city ordinance passed last summer that bars individuals convicted of certain sex offenses from living in exclusion zones that encompass much of the city.
The ordinance does not distinguish between individuals who re-offend or bother their neighbors, and those who do not, the ACLU said in a news release issued this afternoon.

In 2001, Hagan was accused of sexual assault as a result of sexual contact with a 15-year-old. Hagan, 18 at the time of the alleged offense, pled guilty to a lesser crime in exchange for a reduced sentence. He served time in prison, during which he completed sex offender treatment. Hagan is not on parole or probation, and is classified “low risk” to re-offend.

After his release, Hagan attended community college, started a contracting business, and met and married his wife, Amy. He, his wife, and their two children moved to Barre this spring, not knowing of the residency restrictions. The family does not live in public housing, but in a privately owned apartment that they rent.

Even though Hagan has been a law-abiding citizen in Barre, the city notified him on April 23 that he had to move out of the apartment or face daily fines beginning next week. The ACLU’s lawsuit against the city includes a request for a preliminary injunction to prevent the city from fining Hagan. (which has now been granted for 60 days)

NJ High Court Strikes Down Residency Laws

AP : NJ court strikes down sex offender residency limit.
University of Pittsburgh School of Law : Jurist -Legal News and Research
NJ Supreme Court decision here (PDF)

New Jersey's Supreme Court ruled on Thursday that towns cannot ban sex offenders from living near schools, parks, or other places where children gather.

The court struck down two municipal ordinances that restricted where convicted sex offenders could live, a ruling that invalidates similar laws in more than 100 other towns across the state. The two cases, in Cherry Hill and Galloway townships in southern New Jersey, highlighted Megan's Law, which requires convicted sex offenders to register their whereabouts with law enforcement.

The broader issue, though, centered on whether towns have the authority to pass ordinances that may conflict with state laws.

In its 6-0 decision, the Supreme Court echoed a 2008 appellate ruling that sided with the plaintiffs. Justice John E. Wallace Jr. did not participate.

All 50 states have some version of Megan's Law, but the cases decided Thursday are the first of their type to reach a state Supreme Court, said Frank Corrado, an attorney for the American Civil Liberties Union who represented the unidentified plaintiff in Galloway Township. The ACLU filed a lawsuit in Vermont this week challenging a similar ordinance in the town of Barre, near Montpelier.

"We continue to feel these laws are counterproductive and don't accomplish their purpose," Corrado said Thursday. "There's no real connection between limiting where someone can live and a sex offense occurring in a park or public place."

Stratis said supporters of the ordinances will now have to rely on the state Legislature to expand Megan's Law or explicitly authorize towns to craft their own rules. Lawmakers are expected to revisit several bills that have been on hold pending the Supreme Court ruling.

Iowa's legislature recently revised a state law to relax restrictions on where lower-risk sex offenders can live, but also created buffer zones that prevent them from entering areas where children congregate.

Under Megan's Law, convicted sex offenders may only live in a residence approved by a parole officer, and must notify authorities when they change addresses and employment. The law forbids anyone from using an offender's criminal record to deny housing.

Both New Jersey towns have ordinances that prohibit sex offenders convicted of offenses against minors from living within 2,500 feet of schools, parks, playgrounds and day care centers. In all, about 120 towns in New Jersey have passes similar ordinances.

The Galloway Township case involved a Stockton College student who had served two years' probation for criminal sexual contact committed when he was 15 against a 13-year-old girl. He was designated under Megan's Law as a Tier I offender, meaning he was considered to have the lowest risk of re-offense.
The township sent him a notice telling him he could not live on campus since his dorm was within 2,500 feet of a day care center.

The two plaintiffs in the Cherry Hill case, James Barclay and Jeffrey Finguerra, moved into a motel within 2,500 feet of Camden Catholic High School while they awaited approval for a new residence from their parole officers. The township found them guilty of violating the ordinance and fined them.

Charges Dismissed as Result of IN Supreme Court

Indianalawblog.com : Ind. Decision - Charges dismissed as a result of last week's Supreme Court decision.
(See earlier story : http://constitutionalfights.wordpress.com/2009/05/04/rulings-affect-sex-offender-registry/)

Both motions for dismissal were prompted by an Indiana Supreme Court decision handed down last Thursday in a similar case involving Richard Wallace, a convicted sex offender. Patterson is a convicted violent offender. Both were required to register under Indiana law.

In both cases, they were charged, convicted and had served their sentence for their crime before the requirement for them to register was enacted. In Wallace's case, it was the requirement to register as a sex offender, in Patterson's, as a violent offender.

The defense motion to dismiss pointed out, "The Indiana Constitution provides that 'no ex post facto law ... shall ever be passed.'" "Ex post facto" is a Latin term for "after the fact." A general explanation of an ex post facto law is a law that is retroactive, or that changes the consequences of a crime after the crime was committed.

In the Wallace case, he had already completed a sentence for child molesting before the Act was enacted. When the decision was made last Thursday, the court said Wallace's conviction violated the state constitution's prohibition of retroactive laws.

The state's motion requested the court dismiss the case for the reason that it cannot proceed with prosecution due to the recent Indiana Supreme Court decision in Wallace v. State.

Prosecutor Jarrod Holtsclaw said he had read the Wallace decision. "We have no choice," said Holtsclaw. "The Indiana Supreme Court does have the final say on Indiana laws. Unless it's taken to the United States Supreme Court, we have to abide by the Indiana Supreme Court's decision."

Holtsclaw said most people in Indiana's judicial arena have been waiting on this decision for quite some time.

Not only does the ruling affect the Patterson case, but it is expected to affect many other cases in the state.
"This could affect hundreds, maybe thousands, of other cases. We're trying to see how many other cases in Greene County will be affected. I've asked the Public Defender's Office to take a look at other cases," said Holtsclaw.