Saturday, January 12, 2008

The Adam Walsh Law: Why We Need It, What It Does

View the article here

Give me a break. The BS in this article is so obvious. Nothing about these laws will protect people, it will only let them "feel safe" when they are no safer than before these laws were in affect. I believe the Nazi's did this back in the 40's, and we know what occurred there, don't we? Why do you continue to push this BS when it was not proven your son was killed by a sex offender, and FACTS prove these laws do not and are not working? Stop the BS and show the FACTS? Stop exploiting your sons death to make you rich and famous, let him rest in peace! You admitted you had a "sex addiction" and got therapy and was "cured", yet you claim they cannot be cured, so are you cured? You teach people to hate and distrust men. Your intentions are good, but your fear-mongering is total BS! I wish someone would investigate your sons case more, and you as well. What is in your closet Mr. Walsh? Why isn't your wife being brought up on charges of child neglect for leaving your son alone in a shopping mall?

01/09/2008

America's Most Wanted understands that there are concerns about the lack of consistency and uniformity in the way that states deal with sex offenders and which offenses may or may not be included in sex offender registries. AMW also understands that there will on occasion be instances in which relatively minor offenses are treated harshly and inconsistently. In fact, that was a prime reason for the Adam Walsh Act.
- There is TONS of minor offenses being treated harshly, because your BS laws treat everyone as if they killed your son, or Jessica Lunsford. You know this, just don't want to admit it. You say above this law was for consistency, yet we do not have it, and leaving it up to the states, it will NEVER be consistent, and again, you know this, you are just grandstanding.

Sex offender registries are not new. The first registry in the country was the California registry, established in the 1940s. Yet, we had reached a situation in which at least 100,000 of the nation's more than 600,000 convicted, registered sex offenders were not complying with the law. Many were literally missing. We were witnessing tragic incidents like the Jessica Lunsford case in which registered offenders with many prior arrests weren't where they were supposed to be, and were preying upon the innocent.
- Yeah, the German Nazi's did this back in the 40's, you mention, and we know what occurred there, don't we? Why don't you check out this article. This is what these laws are all about, isn't it?

We want people to understand how this important law is supposed to help protect children. The Adam Walsh Act is a federal law that is actually made up of individual state laws. Each state has its own sex offender registry and its own laws about how the registry works and what offenders must do to comply with their registration duties. The Adam Walsh Act provides a framework for the states. It is a floor, not a ceiling, and states are permitted to enact registration laws that go beyond the minimum standards of the federal law. While we believe that most registered sex offenders want to, and in fact do, comply with their registration duties, the laws are directed at those offenders who don't register because many seek anonymity and pose the greatest threat to children.
- How is this law going to protect children? It won't. No matter how many laws you put on the books, if someone is intent on murdering someone, abusing a child, doing drugs, they will. Banishment and shaming is a product of Nazi Germany, and now it's here. Welcome to the USSA! And no, these laws are made to PUNISH ALL SEX OFFENDERS, even those obeying the laws. I'm sure the millions of people you are torturing with these very laws can vouch for me on this... You use the word "sex offender" and "threat to children" as if sex offender, pedophile, child molester, rapist all mean the same, they are not. Just because someone is labeled a sex offender, that doesn't mean they have harmed a child. STOP YOUR BS!!!!!!!!


The single most important thing that must happen is that every state should implement the Adam Walsh Act immediately.
- Why? Why the urgency? Do you have some investments somewhere that we should know about, or some hidden agenda? If all 630,000 sex offenders were harming children, at the rate you have spewed about, there would not be hardly any children left, period. You are just spewing lies, grandstanding and exploiting your own sons death. Are the funds there? How do you suggest paying for the billions of dollars it will take to do this? This country is already in debt and will soon crash and burn... Open your eyes for Gods sake!!!



Building A National Standard

In working with Congress on the Adam Walsh Act, our goal was a more unified system of sex offender management throughout the nation. Certain states should not be allowed to become "safe harbors" for sex offenders. We believe that communities in each state should be able to have the same type of information about potential threats to their children. The Adam Walsh Act will ensure this consistency.
- And yet this "unified system" is not happening, and will not work. The last couple years have proven that. You say "communities in each state should be able to have the same type of information about potential threats to their children!", so what about a murderer registry, DUI offender registry, child abuse registry, drug dealer/user registry, etc? These crimes kill more children than sex offenders, especially DUI. So are you for protecting children or punishing just sex offenders? Tell the truth Mr. Walsh!! Also, how is the Adam Walsh Act going to "ENSURE" this? It won't and you know that!

The intent of the Adam Walsh Act is simply to protect our children from predators. It is a vast improvement over the current patchwork of registries across the nation, a system filled with holes and gaps. We recognize that it may not address every situation relating to specific offenders and like any law, could have unintended consequences.
- Ok, you say predators above, but these very laws punish ALL SEX OFFENDERS. So what do you really mean Mr. Walsh? Holes and Gaps? Care to mention any of those "holes and gaps?" You also say above "may not address every situation!" But I thought you said it would ENSURE this? So are you lying? And this "unintended consequences" BS is just that, BS! You know what the unintended consequences are, these laws have been on the books for years, so you should know exactly what those are. They are no longer unintended, that are known consequences!!! What are those unintended consequences you mention? Suicide, death, vigilante attacks, harassment, loss of housing, jobs, the list is endless.

If there are problems with implementation of the Adam Walsh Act at the state and local level, we urge state lawmakers to take a close look at whether their state laws are inadvertently creating situations that do not further the goal of protecting children.

Nonetheless, we remain convinced that the single most important thing that must happen is that every state should implement the Adam Walsh Act immediately. States have three years to implement its provisions. In addition, Congress and the President must provide the funding authorized under the Act to enhance the ability of federal and state authorities to manage our growing population of sex offenders. We are committed to full, fair and uniform compliance across the country and will continue to work to ensure that it happens. Our children deserve nothing less.
- I thought the deadline was 2009? That is one year. Did someone extend this deadline to 2011 now? Also, you failed to mention, if they do not, they will not get grant money, and even if they do, they will not get funding, so what is the incentive? This is basically bribery, which is a crime the last time I checked. Also, why is the number of sex offenders growing? It is those unknown people out there who have not been caught or committed a crime yet. So if we are at 630,000 now, what will this be in 5 or 10 years from now? Well over 1 million. Why are we not looking at therapy (if it worked for you, it should work for a majority of these people)? We need to determine why this is occurring, not just lock em' up and throw away the key. You could kill every single one of them right this minute, and more would follow. This has been around since the dawn of time. I'm not saying it's right, or ok, but just pointing out the facts. What are you going to do to fix this mess?? Nothing I see!


Vigilantes: Coming soon to a community near you

Courtesy of the "Forensic Psychologist" blog

10/18/2007

Facing global environmental catastrophe, economic decline, and war without end, who can resist strapping on a nine millimeter and blasting bad guys?

Viewers are flocking to "The Brave One," which remains on the top 10 list with $35 million in gross sales so far. Women, especially, are loving Jodie Foster as Erica Bain, a liberal-turned-vigilante killer on the mean streets of New York.

It's "a pro-lynching movie that even liberals can love," says the New York Times.

Americans have always loved a good vigilante yarn. But the allure increases in times of uncertainty and perceived powerlessness. And people are more fearful of crime than ever, despite dramatic drops in crime since Charles Bronson ("Death Wish") blasted a path through the same city more than 20 years ago. Especially, these days, our collective fear and hatred turns to "terrorists" and criminal predators. (For a great analysis of the history and allure of the vigilante film, see Eric Lichtenfeld's piece in Slate.)

Nothing wrong with letting off a little steam. But recent news events cause me to doubt that the vigilante mood is shut off when people leave the theater.

Last month, two men in a small Tennessee town torched the residence of a man convicted of a child pornography charge. The man's hapless wife died in the fire.

A month earlier, in a scene reminiscent of the Salem witch trial days, a crowd of angry neighbors descended on a New Hampshire home, taunting the woman resident as a "molester" and "skinner" (prison lingo for a child molester) before tossing a burning scarecrow on her front porch.

These incidents are not isolated. Other vigilante attacks on sex offenders, the most vilified pariahs in modern society, include the following:

  • A vigilante killed two sex offenders and visited the homes of another four in Maine. He had gotten their addresses from an online sex offender registry. (He then shot himself to death.)
  • A drunken father and son broke into the house of a paroled sex offender in New Jersey and began beating another man whom they mistakenly took as the sex offender. Yet again, the vigilantes had found their victim through a "Megan’s Law" community notification law.
  • In Bakersfield, California, a knife-wielding vigilante tried to break down the door of a sex offender whose name, photograph and address had been distributed in the neighborhood by police. Police shot the vigilante dead.
Are you picking up on a common theme here? Something to do with community notification laws?

Publishing the names and addresses of people who are villainized as "sex offenders" is almost like handing out murder licenses to violent and unstable people.

As law scholar John LaFond put it: "These [community notification] laws are almost a confession by the state that we have done all that we can, you must now take the defense of your family into your own hands."

Even those who believe all sex offenders deserve to die might not feel so strongly if they knew how some people got onto the sex offender registries, which fail to distinguish based on the severity of the offense.

For example, what about the middle-aged family man convicted of statutory rape at age 16 for his consensual relationship with his 15-year-old girlfriend?

That man is no more of a threat to children than is any other randomly selected man on the street. He is certainly less of a threat to public safety than the vigilantes who are gunning for him.


TX - Georgetown official kills himself after sexual assault allegations arise

View the article here

If these laws are restrictive and not punishment, why are so many people taking their own lives?

01/11/2008

Authorities said they were close to an arrest after he failed to show up for interview.

A Georgetown official fatally shot himself Tuesday, a day after allegations that he sexually assaulted a child surfaced, authorities said.

Tony Carrillo, assistant director of parks, was found with a self-inflicted gunshot wound in his home outside Florence about 4:30 p.m. Tuesday, said Detective John Foster, a spokesman for the Williamson County sheriff's office.

Foster said investigators had been scheduled to meet with Carrillo on Tuesday after the allegations were made Monday. State Child Protective Services officials notified the sheriff's office about the accusation, he said.

Authorities interviewed the youth, who was described only as a girl younger than 17, on Monday, Foster said.

After Carrillo failed to show up for the Tuesdaymeeting, Foster said, deputies decided there was "enough probable cause" to arrest him.

"We wanted to give him time to rebut and discuss the allegations, but he never gave us that chance," Foster said.

Foster said that when deputies went to Carrillo's house, they found him dead.

Georgetown city spokesman Keith Hutchinson said officials learned Tuesday about the death.

"Tony had worked for the Parks and Recreation Department since 1999," Hutchinson said in a statement. "He was a hard-working and valued employee whose death came as a great shock to city employees."


Man Goes To Strip Club,Leaves Child In Vehicle


NY - New York Mom Allegedly Put Son, 7, in Oven as Punishment

View the article here

Not SO related, but again shows that most abuse is done by the parents of children.

01/12/2008

AIRMONT — Police arrested a woman Friday after her 7-year-old son told authorities she burned him in an oven, and a day-care worker was arrested for not reporting the attack, authorities said.

The mother, 26-year-old Tiffany Fraser of Tallman, was charged with assault and endangering a child, authorities said.

Police began investigating after the boy was spotted alone at a shopping center and told officers he had run away because "his mother had put him in an oven and burned him as a punishment," according to police reports.

The day-care worker, 37-year-old Joelle Lherisson, was charged with failure to report child abuse. Both Fraser and Lherisson were arraigned in Airmont Village Court and released until their next court dates.

Lherisson told WCBS-TV that the boy showed no signs of abuse, and she had taken good care of him.

"There was nothing wrong with the child," she said.

Fraser's lawyer, Edward Cigna, declined to comment. There was no phone listing for Fraser.

Lt. Brad Weidel of the Town of Ramapo police force, which covers Airmont, said the boy's burns — on his nose, arm, hand and left leg — were noticed at a daycare center owned by Lherisson in July, but Lherisson did not report them.

When the boy reported the oven incident at the shopping center, he and a sibling were removed from their home by the Rockland County children's agency and police began an investigation that led to both arrests, Weidel said.


KY - Seizing Sex Offenders' Property

View the article here

I hope this goes for celebrities, politicians (i.e. Mark Foley in Florida) and others as well. We all know prison is a business, and this will make prison more of a business. Why don't you do this with other criminals as well, like DUI offenders, murderers, gang members, thieves, etc? Welcome to Nazi, USSA!

01/11/2008

A local lawmaker takes a shot at sex offenders and especially the cars, cash and computers they use to commit crimes. For years, Kentucky has seized the property of convicted drug dealers. Now it wants a shot at sex offenders. A bill filed this week in Frankfort would authorize police and prosecutors to also seize property used by sex offenders who prey on children.

Joe Webb shows how their crimes might pay off for the Commonwealth.

Last spring, when Highland Heights hosted this sex offender sting, it nabbed a dozen guys thinking they were coming to have sex with a teenager. Under House Bill 210, filed by Covington lawmaker Arnold Simpson, not only would these guys get mugged, cuffed and locked up, they'd lose the cars and trucks they drove to the scene. Plus, the computers used to chat with the bait. Police like the idea.

Assistant Chief Spike Jones, Covington Police: "This gives us an avenue for collecting some of the money that these investigations drain from our agency. A good investigation is an expensive thing. Expensive undertaking."

The bill would give 85 percent of the seized property to police, 15 percent to the prosecutor. Under House Bill 210, if a person drove up to a Kentucky playground, lured a child into their car, drove home and molested them, police and prosecutors would be able to do a lot more than lock them up.

Rob Sanders, Kenton County Commonwealth's Attorney: "We at least, potentially, would seek to forfeit that car used to transport the child and that house used to conceal the crime where they were molesting that child."

Under the proposed law, Sanders says, theoretically, the state could have seized any car Jeni Dinkel used to drive her victim and half of the equity she had in her Villa Hills home. Prosecutors would use the money for training in prosecuting sex crimes.

"If you look at it in terms of us representing the Commonwealth, it's hardly an equitable situation where the public defenders who are being paid with taxpayer dollars are getting far mor training than the attorneys who represent the community."

The bill was filed Wednesday and is a long way from becoming law.

State Representative Simpson says he filed the bill at the urging of police and prosecutors.


NM - For grandmother, innocence is worth years in jail

View the article here

01/12/2008

She was 7 when she told her mother that Grandma Esther molested her and another cousin her age, that Grandma Esther shot up heroin and tried to get her to shoot up, too.

That Grandma Esther did bad things no grandma is supposed to do.

She is 10 now, and so far there has been no trial for Grandma Esther, no justice and no peace from the bitter feud between family members who believe the girl and those who believe she was forced into a lie.

"This has been a nightmare," said the girl's mother, Denise Lovato, and the woman blamed by those on Grandma Esther's side for planting the sordid story in the girl's head. "My daughter is strong, stronger than me, but it's still been a very vicious thing, all this waiting."

Grandma Esther, whose full name is Mary Esther Lovato, has been waiting, too, locked up at the Metropolitan Detention Center since her arrest April 26, 2005, on a dozen charges, including three counts of criminal sexual penetration of a minor.

That kind of waiting in that kind of place accused of the kind of crime even inmates detest has been just as nightmarish for Lovato, 58, her family said.

"It has been hard. She's been punished. They have been cruel to her. People have hurt her in there," said her sister, Nila Lopez. "They say you're innocent until proven guilty — well, it's been the opposite for her."

By the time the case goes to trial in late March, Mary Lovato, innocent or guilty, will have been in jail a month shy of three years.

In that time, her case has been set for trial 12 times.

Cases involving children always take time, but Lovato's case has been prolonged even further over questions of her competency, substitutions of lawyers on both sides and Lovato's insistence that her case not be pleaded out.

"She has stuck to her guns," said her attorney, Troy Prichard, whose relative newness to the case was posited as the latest reason to delay her trial, which was to have occurred last week. "She has maintained her innocence. People lie. Cops lie. She's fine with waiting for trial."

Prichard was assigned the case last July after Lovato angrily demanded that her previous public defender be fired over his insistence that she accept what seemed a sweet plea deal rather than stand trial.

Three times, she has rejected plea deals that would have ended her jail misery and freed her almost instantly — provided she was willing to plead guilty, be placed on probation for up to 20 years and register as a sex offender.

If convicted at trial, she would also face up to 54 years in prison.

"She's not going to take that plea. She's never going to take a plea," her sister said. "She's innocent. Why should she?"

Lovato, she said, would rather rot in a jail cell than confess to a crime she didn't commit.

She'd also rather put her granddaughter on the witness stand to be unmercifully grilled, her every action and motive questioned, her character torn apart.

"She loves (her granddaughter), but she's going to make her testify," Nila Lopez said. "She feels bad about it. She cries about it. But she didn't do it."

Prosecutor Ann Demarais, the second prosecutor on the case, said she had hoped to avoid trial to spare the girl and to spare Lovato from any further time behind bars.

"But we were ready to go to trial this month as planned," she said.

Now it could be Demarais who causes another delay — she is leaving the District Attorney's Office.

"I wanted to try the case before I left," she said. "I didn't want this girl to have to get used to another prosecutor."

And get used to more delays.

Meanwhile, Denise Lovato said her daughter remains just as determined as Grandma Esther to go to trial, no matter how long it takes.

"My daughter tells me, 'Don't worry, Mom. God knows,' " she said. " 'When Grandma sees me, that's when everything is going to change. God is going to let everybody know what happened.' "

By that time, with memories blunted and nerves frayed, God might be the only credible witness left.


IL - Couple face life terms in sex abuse cases

View the article here

Another case to prove that 90% or more of all sexual abuse occur at the hands of family, not strangers, like the public is lead to believe.

01/12/2008

A Baldwin City couple are facing life in prison for sex crimes involving their children.

A 28-year-old Baldwin City woman, who made her first appearance Friday in Douglas County District Court, is charged with three crimes involving her 3-year-old son and another crime involving her boyfriend’s daughter.

The woman is charged with aggravated criminal sodomy, aggravated indecent liberties with a child and sexual exploitation of a child. She faces up to life in prison on those charges, prosecutors said. She also is charged with endangering a child — her boyfriend’s 14-year-old daughter. The woman faces up to 17 months in prison on that charge.

Court documents allege the crimes against the toddler occurred last year, between June 1 and Aug. 9. The crimes against the teenager occurred between Jan. 1, 2007, and March 31, 2007, documents say.

The woman’s 40-year-old boyfriend is awaiting sentencing in his own case.

He was charged in August with three counts of rape of a child, one count of aggravated indecent liberties with a child and one count of criminal sodomy, all involving his daughter. The incidents allegedly occurred between November 2004 and March 2007, in Lawrence and Baldwin City.

Last month, the man pleaded no contest to the three rape charges. He will be sentenced in March.

According to Douglas County District Attorney Charles Branson, the investigation of the woman started as officers gathered evidence in her boyfriend’s case.

“The initial investigation was started after the victim in that case came forward to some law enforcement personnel and social service personnel that they had been victimized,” he said.

Both adults face 25 years to life in prison under Jessica’s Law.

Jessica’s Law is the informal name given to a 2005 Florida law aimed at deterring sex offenders from offending again. Jessica Lunsford was a 9-year-old Florida girl raped and murdered by a previously convicted sex offender.
- And it's not doing this, because a majority of those being arrested are NEW sex offenders, not repeat offenders. Some are, but a majority are not. And I think every human on the face of this planet knows what Jessica's law is by now.

The law, which applies to defendants whose victims are younger than 14, was adopted in 2006 in Kansas. It imposes a 25-year sentence for adults convicted of a violent sex crime against a child. A second conviction triggers a 40-year term and a third results in life without parole.

Branson said the main feature of the law is that it allows judges to impose harsher than normal sentences on first-time offenders, if the crimes are severe. These two cases meet that test, he said.

The woman — speaking Friday via an electronic feed from jail — told District Judge Stephen Six she now was living with her parents in Overbrook. She said her mother had been driving her to Stormont-Vail Hospital West, a behavioral health division of the Topeka hospital, to see a counselor.

“I have a severe problem with depression and I haven’t had my medication today,” she told the judge.

She began crying and told the judge she was on suicide watch, but not a flight risk because the only place she had to go was her parents’ house. She said she works in Lawrence.

The judge set her bond at $250,000 and ordered her not to have any contact with her son or her boyfriend’s daughter.

Her next court appearance is set for 2 p.m. Monday. The Journal-World generally does not identify people charged with sex crimes unless there is a conviction.


MA - CORI reforms bill filed - Changes to help ex-cons get jobs

View the article here

01/12/2008

BOSTONGov. Deval L. Patrick filed legislation yesterday that would reduce the time the public could view most criminal records — from 15 years to 10 years for felonies and from 10 years to 5 years for misdemeanors — to make it easier for past offenders to get jobs and to reduce prison recidivism.

The changes are among numerous proposed reforms to the state’s Criminal Offender Record Information law laid out by the governor after a year of study.

“CORI was never intended to turn every offense into a life sentence,” the governor said in a statement announcing the initiative. “All but a handful of people incarcerated are eventually released, and they need to get back to work.”

While the change in the length of time before records are sealed and some other changes would require legislative approval, several changes were implemented by the governor by executive order yesterday.

The legislation also would increase access to sealed criminal records for police and criminal justice agencies, granting them access to all criminal records sealed by the courts, and would impose a new penalty of $5,000 or one year in prison for those convicted of making unauthorized requests, unauthorized use or dissemination of CORI records.

Handling of juvenile records would not change under the legislation.

Meanwhile, the governor directed state agencies to implement several other changes in the handling of criminal records.

Under the executive order, state agencies would only be allowed to check a job applicant’s criminal background “once an applicant has been deemed qualified” for a position, and only when the contents of a criminal record are relevant to the duties of the job.

The order also requires the board that oversees the CORI records to set up new training standards for employees handling criminal record requests. It also requires several state agencies to conduct public education programs to advise the public of the rights they have under the criminal offender record information system and to inform employers of permissible uses of criminal records.

That program also will include a review of federal and state laws governing the use of criminal records to make public housing decisions meant to reduce placement of ex-offenders. In addition, the Executive Office of Health and Human Services is being directed to revise its hiring guidelines for human services providers and vendors, and the state Office of Workforce Development has been told to develop recommendations to improve pre-release and post-release job training programs for prison inmates.

The governor’s office said the reforms are aimed at reducing recidivism rates by increasing job opportunities for those with criminal histories and to improve the accuracy of CORI files and make them more readily understandable to the public and employers.

The proposed new limits on how long a criminal record would remain unsealed for public viewing would only apply to individuals who had no subsequent criminal activity during that period. The bill would provide that sex offender criminal records never be sealed and would maintain the current 10-year public access to records for misdemeanor violations of restraining orders.
- So it's ok for murderers and other violent criminals to get a job, but not sex offenders. Why?

Secretary of Labor and Workforce Development Suzanne M. Bump said employers and job seekers should benefit from the reforms, as many employers have jobs that go unfilled while many ex-offenders cannot get those jobs because of barriers posed by the criminal record system.

“These reforms will reduce those barriers and will support policies that promote education, re-entry and job training in a tight labor market,” she said.


VA - Ex-bank VP spared prison

View the article here

What is the purpose behind giving someone 5 years in prison, then suspending them all? Why don't they just say, no prison time? Same thing right?

01/12/2008

STAUNTON — A former vice president of Community Bank convicted of child pornography was spared prison time earlier this week at a sentencing hearing conducted in Staunton Circuit Court.

David L. Cropp, 52, of Fayetteville, N.C., faced as many as five years in prison on a charge of possession of child pornography.

Cropp came under suspicion in May 2005 when a network administrator at the downtown branch of Community Bank on North Central Avenue noticed unusual activity coming from the bank's intrusion prevention system, a system Cropp helped implement. The activity was pinpointed to Cropp's laptop.

The administrator testified in October that he found explicit messages and abusive comments on Cropp's computer, all concerning children. Virginia State Police seized the laptop and 14 floppy disks, two of which contained more than a dozen pictures of child porn, testimony revealed.

At Wednesday's sentencing hearing, assistant city prosecutor Anne Reed asked for a three-year prison term. Judge Humes J. Franklin Jr. sentenced Cropp to five years behind bars with all five suspended.
- So what is the point?

"(Franklin) thought Mr. Cropp would not survive incarceration," Reed said.

Franklin ordered a sex offender evaluation for Cropp and treatment if necessary. The judge placed Cropp on five years supervised probation.
- No sex offender registry? I guess you and this banker are buddies or something.

Reed said pictures from Cropp's computer were traced by the National Center for Missing & Exploited Children to a child in England. She said the child appeared to be about 8 years old.

Cropp told investigators that "poor judgment" in chat room discussions led to his involvement in the case, but he denied knowingly downloading the nude pictures.
- Yeah right. Where were the pictures on his machine? If they were in the cache, then yeah, maybe, but if they were in some folder, then he knew what he was doing. You are protecting this man for some reason.


KY - ANY PLACE WHERE A PERSON SLEEPS - AN ANALYSIS OF A DISTRICT COURT’S RULING DECLARING THE SEX OFFENDER RESIDENCY REQUIREMENTS UNCONSTITUTIONAL

View "The Advocate" here

To read the entire PDF, click the above. Below is only the portion starting on page 14 of the PDF

By Samuel N. Potter, Appeals Branch

In the last edition of the Advocate, part one of this article summarized the changes House Bill Three (HB3) made to the sex offender residency requirements (SORR). Part two of this article will examine a case from Kenton District Court that ruled the new SORR violated the Ex Post Facto Clause of the Constitutions of the United States and Kentucky. Copies of the motion and order can be downloaded from the 2007 annual conference materials from the session on sex offender registration on DPA’s intranet. If you do not have access to DPA’s intranet, feel free to contact the author at sam.potter@ky.gov or 502 564-8006.

The Kenton District Court case involved more than 10 defendants and five defense lawyers, both private and public defenders. All the defendants became sex offender registrants (registrants) before HB3 took effect. The defendants challenged the constitutionality of HB3 as applied to them on multiple grounds: Equal Protection violation; Substantive Due Process violation; Ex Post Facto violation; and Inalienable Property Rights violation. The first three grounds involved both the Kentucky and United States Constitutions, while the last ground relied solely on the Kentucky Constitution. The Kenton District Court based its dismissal ruling only on the Ex Post Facto Clause, though it intimated that the remaining grounds raised substantive issues that will have to be resolved in the future. The Court’s observation is sound. The implication of this statement is significant for criminal defense attorneys. Ex Post Facto challenges will not succeed in each case. Thus, it is worth the time and effort to challenge the SORR on multiple grounds, not knowing which Constitutional provision may warrant relief in any given situation.

The Court spent about eight pages of its 36 page opinion on the historical background of the sex offender registration system (SORS). This included a detailed retelling of the facts of the crime committed against Megan Kanka in New Jersey. This horrible incident provided the political motivation to pass SORS across the nation, which are commonly referred to as Megan’s Law. The SORS attempted to provide a quick solution to the problem that communities face of not knowing where sexual offenders live. Over time, however, the registration requirements and restrictions have grown more burdensome, and the punishments for violations have grown more harsh. The defendants challenged the premises upon which the SORR are founded. The first premise assumed that many sexual offenders target unknown children at a high rate. The second premise assumed that sex offenders re-offend at a high rate after being released. The Court examined some scientific studies that supported the defendants’ challenges of these two premises. The findings are striking and are worth repeating here.

  • Many studies show that sexual abuse most often occurs in a preexisting relationship. For example, 80% of girls and 60% of boys are abused by someone they know.
  • No more than 10% of child sexual abuse cases involve strangers to the victim.
  • In 1997, only 7% of child molesters in prison committed their offense against a stranger.
  • More specifically, 3% of children under 12 were abused by strangers, and 11% of children 13 to 17 were abused by strangers.

The Court stated: “The implication of these and countless other studies is that laws designed to protect our children, to be effective, should focus on preventing sex offenders from harming children whom they know, not fixated on preventing the rare attacks by strangers. Legislators however, continue to focus on high profile, emotionally charged cases like that of Megan Kanka, and craft measures designed to combat the predator lurking in the bushes.” Opinion, p.10.

A causal connection has not been discovered that links an increased re-offense rate to the offenders residence near a school or playground. Of 500 sex offenders who legally lived close to schools, only one was rearrested, and the arrest did not involve another sexual assault. The Minnesota Department of Corrections concluded that residency restrictions were not effective in deterring the offender from re-offending because only two re-offending acts were committed on unknown victims in parks, but those parks were several miles from the re-offenders’ homes.

Studies refute the premise that sex offenders re-offend at a high rate.

  • After five years, the re-offense rate for child molesters was 12.7% in a study of 29,000 sex offenders.
  • Only 14% of sex offenders released from prison in 1994 reoffended.
  • Of child molesters released in 1994, 3% were rearrested for a sexual assault, 14% were rearrested for a violent offense, and 39% were rearrested for any offense including parole violations and traffic offenses. Id.
  • Of all prisoners released in 1994, 68% were rearrested for any offense in three years. Id.

The Court concluded this section by quoting another article: “Residency restrictions suffer from several practical problems that call into question their basis, efficacy, and fairness. Their scientific premise is spurious and only leads to over-inclusive and ineffective restrictions that will do nothing to stop the small fraction of sex offenders who will harm unknown children again.” Opinion, p. 11-12.9 With this background information providing context, the Kenton District Court proceeded to its Ex Post Facto analysis.

The Court’s Ex Post Facto analysis consisted of over 20 pages. “No state shall . . . pass any . . . ex post facto law.” U.S. Const., Art. I, §10. “No ex post facto law . . . shall be encacted.” Ky. Const., §19(1). The Court found no U.S. Supreme Court case directly on point regarding whether the SORR violates the Ex Post Facto Clause. However, the case of Smith v. Doe, 538 U.S. 84, 105-106 (2003), upheld the constitutionality of the SORS, ruling that it “is nonpunitive and its retroactive application does not violate the Ex Post Facto Clause.” Opinion, p. 13. Based on Smith v. Doe, the Eighth Circuit has upheld the constitutionality of SORR. Doe v. Miller, 405 F.3rd 700 (8th Cir. 2005). The Kenton District Court disagreed with the conclusion of Doe v. Miller because of the plain language found in Smith v. Doe: “offenders subject to the Alaska statute are free to move where they wish and to live and work as other citizens, with no supervision.” Opinion, p.14 (quoting, Smith v. Doe, 538 U.S. at 101; emphasis mine.)

Determining whether a statute violates the Ex Post Facto Clause consists of a two step analysis. Step one requires the court considering the issue to ascertain whether the legislature intended the statute to impose punishment or establish civil proceedings. Id. at 92. The inquiry ends if the legislature intended to impose punishment, and the statute violates the Ex Post Facto Clause. If the legislature intended a regulatory scheme that is civil and non-punitive, then the court proceeds to the second step. Step two has the court determine whether the purpose or effect of the statutory scheme is so punitive that it negates the legislature’s intent to deem it civil. Id. Five factors that are not exhaustive or dispositive serve as useful guideposts for evaluating step two:

  1. Has the regulatory scheme been regarded as punishment in our history and tradition;
  2. Does it impose an affirmative restraint or disability;
  3. Does it promote the traditional aims of punishment,
  4. Does it have a rational connection to a non-punitive purpose, and
  5. Is it excessive with respect to that purpose. Id. at 97 (citing, Hudson v. United States, 522 U.S. 93, 99 (1997)).

The Court began with step one and asked whether the legislature expressly or implicitly intended the SORR to impose a criminal punishment or a civil regulation. “Considerable deference must be accorded to the intent as the legislature has stated it.” Opinion, p. 15 (quoting, Smith v. Doe, 538 U.S. at 93). The Court found that the following facts supported a finding that legislature intended the SORR to be punishment.

  • The title of HB3 was “An act related sex offenses and the punishment therefore.” (Court’s emphassis.)
  • Both the House and the Senate required official cost estimates from the Department of Corrections and local governments. The estimates focused on increased costs due to more people being incarcerated and more probation and parole officers.
  • The sole enforcement procedure the legislature authorized with the SORR were criminal sanctions of a Class A misdemeanor for the first offense and a Class D felony for subsequent offenses.

Based on these facts, the Court believed the legislature intended the law to be punitive and violated the Ex Post Facto Clause. Even though this resolved the question, the Court in an effort to be thorough proceeded to step two.

The Court moved on to step two, which is essentially a balancing test to see if the punitive purpose and/or effect of the SORR negates its civil regulation. The five factors listed above provide guidance, and courts are free to weigh the factors as they see fit. Factor one examines the historical tradition of the regulatory scheme, namely residency restrictions. The defendants argued the SORR are equivalent with the punishment of banishment. Banishment is “punishment inflicted on criminals by compelling them to quit a city, place, or county for a specified period of time, or for life.” Opinion, p. 19 (quoting, United States v. Ju Toy, 198 U.S. 253, 269-270 (1905). The Court agreed with the defendants’ argument.

Factor two considers whether the SORR imposes an affirmative duty or restraint. Because the SORR restricts where a registrant can live, the SORR is inherently an affirmative restraint. This factor distinguishes the residency restrictions from the registration system. The Kentucky Supreme Court upheld the SORS because the mere act of registering did not limit the activities of the registrant. Hyatt v. Commonwealth, 72 S.W.3d 566, 572 (Ky. 2002). The Court reasoned that unlike “registration requirements, residency restrictions do in fact impose an affirmative disability and do place limitations on the activities of the offender. . . . The punishment imposed by these statutes, banishment, is not prospective in nature.” Opinion, p. 25. That the SORR imposes an affirmative restraint on registrants cannot be denied.

Factor three addresses whether the SORR promotes the traditional aims of punishment—deterrence and retribution. Smith v. Doe found that the SORS was not retributive because it was reasonably related to sex offenders high re-offense rate, though the U.S. Supreme Court did not cite any data to support this proposition. Smith v. Doe, 538 U.S. at 102. The Kenton District Court referred to the studies it cited early to rebut that proposition and show that sex offenders are less likely to re-offend than the average person. Further evidence of the retribution nature of the SORR was the idea that a registrant could visit “his mother’s home near an elementary school all day long, each and every day, while school was in session and he allegedly posed the greatest risk to children – but he could not spend the night there after school was dismissed and the children returned to their various homes.” Opinion, 21 (citing, People v. Leroy, 828 N.E. 2d 769, 793 (Il. App. 2005(dissent))). The absence of individualized risk assessment of sex offenders bothered Justice Souter significantly enough that he concurred in Smith v. Doe and caused Justice Ginsburg to dissent. Smith v. Doe, 538 U.S. at 108-109; 116-117. The Court concluded that the SORR promoted retribution, a traditional aim of punishment.

Factors four and five are connected. The issue they seek to resolve is whether a rational connection exists between the restriction and its purpose. Factor four inquires whether the SORR has a rational connection to a non-punitive purpose. The SORR are designed to protect children from sex offenders. The Court observed that the “protection, however, is minimal at best and completely illusory at worst.” Opinion, p. 26. Registrants can still frequent schools, daycares, and playgrounds as often as they want without violating the SORR. The SORR do not prevent a registrant from living with the prior victim as long as the residence is not close to a school, daycare, or playground. The Court concluded that the “residency restrictions appear to be little more than a political placebo, offering false comfort to pacify the public’s fear of sex offenders.” Opinion, p. 27. No rational connection exists between the non-punitive purpose of protecting children and the SORR.

Factor five addresses whether SORR is excessive with respect to protecting children. The complete lack of individualized risk assessment lumps all offenders together without any consideration of the likelihood that a given person will reoffend. Justice Souter wrote in his concurring opinion that the SORS “uses past crimes as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on.” Smith v. Doe, 538 U.S. at 109. The SORR potentially subjects nonsex offenders to its jurisdiction. A defendant who car jacks a vehicle with a passenger who is 17 and is convicted of kidnapping or unlawful imprisonment would have to register as sex offender and comply with residency restrictions even though no sexual assault occurred. KRS 17.500(3)(a)(1); KRS 17.520(2)(a); KRS 17.545(1). The fluidity of the SORR contributes to its excessive nature. Where a registrant can live is subject to constant change as new schools, daycares, and playgrounds are opened. A city that desires to do so can open enough playgrounds to render all residences within its limits illegal to the registrant, effectively banishing the sex offender. Therefore, the Court concluded that the impact of the SORR is excessively punitive.

Based on this analysis, the Kenton District Court declared the SORR unconstitutional as it applied to these defendants because it violated the Ex Post Facto Clause because the scheme is punitive and not regulatory. The Court succinctly and persuasively articulated the problem with the SORR: not “only do they [SORR] dictate where an offender may or may not reside, but collaterally, they could impact where an offender’s children attend school, access to public transportation for employment purposes, access to employment opportunities, access to residential alcohol and drug abuse rehabilitation programs and even access to medical care and residential nursing home facilities for the aging offender.” Opinion, p. 30.

The constitutionality of the SORR remains an open question. Other courts in Jefferson County and Madison County have joined the Kenton District Court in declaring the SORR unconstitutional. However, the appellate courts of Kentucky have not yet addressed the issue, though cases are starting to work their way up. Until then, challenges to the constitutionality of the SORR should continue to be raised.