Wednesday, September 30, 2009

Federalism Challenges to the Adam Walsh Act



08/29/2009

Abstract:
This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders. Part I provides background information on the Adam Walsh Act and these two provisions. Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause. This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue. Part III argues that neither provision is justified independently by the Commerce Clause. Finally, Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws. This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision. Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes. This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses. Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down. The Note concludes by suggesting how the provisions might be revised to pass constitutional muster.


"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


GA - Georgia’s sex-offender laws an injustice themselves

View the article here

This was Jerry Keen's idea, see his own quotes here.

09/30/2009

By Jay Bookman

You know, it takes a lot to generate sympathy for a sex offender. But Georgia’s draconian laws about where sex offenders can live are doing the trick. It’s downright ridiculous.

“A group of homeless sex offenders who had been living in tents in the woods behind an office park near Marietta were told they had to leave the land by Tuesday.

“We don’t want to allow anyone to live on our property for liability issues,” said Mark McKinnon, a spokesman for the Georgia Department of Transportation, which owns the wooded land where the sex offenders had taken residence.

Several men said their probation officers had told them about the encampment as a kind of last resort for homeless sex offenders trying to meet the strict residency requirements of their probation.

Georgia’s law prohibits the state’s 16,000 sex offenders from living, working or loitering within 1,000 feet of schools, churches, child care facilities and other areas where children gather. It limits the locations where they can live….

William Hawkins, 34, a registered sex offender living in the camp, gathered his belongings Tuesday.

He’s not sure where he’s going to go.

When Hawkins was 15 years old, he had sex with a 12-year-old in Florida and received two years of house arrest and 10 years’ probation. “I have a 19-year-old case. Technically, I don’t think I have to be on it,” Hawkins said of the sex offender registry.”

The law hounding those people has no real purpose but to, well, hound them. As experts have testified to the Georgia Legislature, it serves little or no protective function. A sexual predator intent on finding victims will do so, regardless of where he (or occasionally she) is forced to live. Furthermore, unlike many states, Georgia law makes no distinction between somebody like Hawkins and somebody who has a history of true predation.

An even better example is Wendy Whitaker, who as a 17-year-old was caught performing oral sex on a 15-year-old classmate. That incident back in 1996 put her on the same sex offender list as a multiple rapist, As The Economist recently pointed out in an article featuring Whitaker as an example:
- Don't forget Genarlow Wilson as well.

“The Georgia Sex Offender Registration Review Board, an official body, assessed a sample of offenders on the registry last year and concluded that 65% of them posed little threat. Another 30% were potentially threatening, and 5% were clearly dangerous.”

Given that reality, throwing them all into the same bag and forcing them to live together in surreptitious little communities helps no one. If serious threats must be freed, restrict their movements and track them closely. But don’t pretend that they’re all the same. Law enforcement officials have already told legislators that the law is overly strict, forcing officers to spend precious time tracking low-risk offenders that could better be spent elsewhere. But politicians passed the law as an act of grandstanding, and so far they haven’t summoned the courage to correct it.

Of course, much of the rest of the world is more intrigued by the case of Roman Polanksi, who hasn’t exactly been living in a tent city in the 32 years since he drugged and raped a 13-year-old girl. Ann Woolner, a columnist for Bloomberg, explores that case and reaches what I think is the right conclusion:

“The shame is that it has taken this long to sort everything out. The blame for that lies with Polanski for refusing to answer for evading the law.

Celebrate the man’s talent, honor his contributions to filmmaking. However gifted he is, Polanski’s art can’t serve as a reason to ignore his terrible crime or his refusal to answer for it.”

The injustice done to the Wendy Whitakers of the world, and maybe to the William Hawkins, far outweigh any alleged unfairness to Polanski.

UPDATE: I should note that my colleague Cynthia Tucker has also weighed in on the Polanski case, reaching a verdict similar to Woolner’s.

“It’s important for Polanski to face the bar of justice, even thirty years late. His appearance would serve as an example to others among the wealthy and glamorous that they are not above the law. Neither money, fame, connections nor artistic achievement should excuse you from facing up to your crimes. Forcing Polanski into court, in a case which will receive lots of media attention, might also stiffen the resolve of other victims of sexual violence who are trying to find the courage to face their abusers.”


"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


Debra Tate on Roman Polanski and the system

NPR Audio - Opinion Roundup (09/30/2009)

Download (25.9 MB)


Roman Polanski - Wanted and Desired (HBO) Video Link



"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


OFF TOPIC - Virtual eye in the sky sparks stalker fears

View the article here

A TOTAL invasion of privacy, but, I guess the UK's Big Brother is coming to the USA, just like I've said for a long time now. They talk about Australia in the article, but you can bet, if it's done, it will be available to anyone with access to the Internet.  SCARY!!!

09/29/2009

By Sarah Collerton

Privacy groups are aghast at early plans to make virtual maps so realistic that individual humans could be spotted and tracked.

United States researchers are working on ways to layer more real-time, real-world information into Google Earth or Microsoft Virtual Earth.

The Georgia Tech trial video of an augmented virtual Earth shows people just walking around, a soccer game being played in a park, how fast clouds move across the sky and the speed traffic is moving along the highway.

But the things you are seeing are not actually real, rather animations based on recordings of real people and events.

The researchers have produced the realistic animations of humans and various objects using live video feeds that detect the position and motion of things.

They also use behaviour simulation and motion capture data so the animated humans look and move realistically.

The Australian Privacy Foundation (APF) says real-time capture of large-scale natural and man-made phenomena could be highly valuable, both socially and economically.

But they have grave concerns over the real-time capture of human activity, which they say is "grossly privacy-intrusive".

The group is worried about who will be collecting the real-time data, how it will be used and how long it will be stored.

APF chair Roger Clarke says there are far too many risks involved to even consider the technology.

"The risk of voyeurism in many different forms is enormous here," he told ABC News Online.

"Stalkers, particularly relating to celebrities and notorieties, but there's an awful lot of people who aren't celebrities who are at potential risk from people who have funny ideas."

Mr Clarke says Australia's privacy legislation is far too lax, and even the prospect of this technology shows Australia needs clearer privacy protection.

"We have an awful lot of holes in our privacy legislation in all countries, but Australia is atrocious, particularly in relation to the private sector," he said.

"We don't have appropriate protections in place."

Privacy concerns in the wake of the launch of Google Street View prompted the technology giant to blur faces of people caught in photographs and take down images at the request of property owners.

Street View allows people to see 360-degree ground-level images of cities captured from a car equipped with a camera.

Earlier this year, Google argued in a US court that an expectation of privacy concerning pictures of houses or yards is unrealistic in this age of aerial and satellite imagery.

The Georgia Tech researchers will present their findings at the IEEE International Symposium on Mixed and Augmented Reality in Florida next month.

Video Link



"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


WA - State .v. McMillan - Relieved of registration (This is HUGE!)

Click the image below to see the web page, or the PDF here

Everyone should read this!



"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


CA - California Lawmakers Reintroduce Bill to Register Convicted Arsonists

View the article here
House passes registry for convicted arsonists

If laws are in place to prevent access to the registry by the public, then how is this any different than a sex offender registry? Arsonists kill more people than sex offenders, so do DUI offenders, so why not a DUI registry as well? Either way, a registry will not prevent an arsonist from setting fires, nor a DUI offender from driving drunk. It's just more smoke and mirrors to get everyone on a registry!

09/30/2009

California Lawmakers Reintroduce Bill to Register Convicted Arsonists

It's been over a month and 160,000 acres since flames began a devastating push through Los Angeles County. One of the most destructive wildfires in the history of California, the Station Fire, now sits just below full containment.

And the cost has been high. In addition to destroyed homes and displaced residents, two firefighters lost their lives fighting the blaze. Following forensic confirmation of arson, police have classified both deaths as homicides.

An investigation is currently underway.

In June of this year, _____ was sentenced to death for setting a 2006 fire in the San Jacinto Mountains, which eventually claimed the lives of five fireman, 34 homes and 41,000 acres.

Californians are all too cognizant of the threat posed by wildfires. In 2007, California lawmakers introduced the Managing Arson Through Criminal History Act (MATCH Act). Though passing in the U.S. House of Representatives, the act stalled in Senate.

In March 26th of this year, the bill was reintroduced as House Resolution 1727. On September 9th, as the Station Fire continued to rage, Representatives Mary Bono Mack (Contact) and Adam Schiff urged congress to hasten passage of the bill, which would establish a national criminal arsonist registry.

If passed, the law would require individuals convicted of arson to register for five years following a single offense, 10 years for two offenses, and for life if there are three or more.
- Why not for life, like registered sex offenders?

As it stands in the submitted bill, registry information would include:
  • name and any aliases
  • social security number
  • most recent address
  • physical description
  • description of offense
  • fingerprints and palm prints
  • photocopy of a valid license or identification card

There is also a provision for "any other information required by the Attorney General," which could leave the door open for future additions.

Proponents hope that the bill will provide some measure of defense against repeat arsonists. Potentially, it could expedite the process of tracking down potential suspects and sharing information across state lines.
- And yet it won't prevent any further arson!

For example, if a convicted arsonist left one state and began setting similar fires in another, law enforcement officers in the second state could use the national database to look for patterns -- resulting in more efficient and successful investigations.

Unlike sex offender registries, the MATCH Act would not allow public access to arson records.
- Why not?  If a registry is okay to be accessed by the public, why not all other registries?

The bill has not resulted in strong opposition, though there is some concern about cost. With state budgets cut, some arson investigation units question how such an initiative might be undertaken without significant funding. Under the Act, states would get increased federal funding, but would still be required to maintain their own registries. Failure to do so would result in up to 10 percent in funding cuts.
- And this was never considered for the sex offender registry!

Proponents of the MATCH Act assert that those who have served their time need not worry about privacy concerns because the information would only be available to law enforcement agents and fire investigators. In reality though, anytime data is being collected, it is important to fully contemplate the privacy implications.
- Oh, give it time, it will be, and applied ex post facto, watch and see!  This is how it all starts!  Then, more registries will follow, because, after all, if one registry is okay, why not one for all citizens?

The future of the MATCH Act remains unclear. Although the recent fires have brought this issue to the forefront of national attention, many in Congress are loathe to place additional burdens on state governments given recent state budgetary challenges.

Regardless of what happens with the MATCH Act though, it is clear that there is strong support for the prosecution and prevention of arson. Accordingly, it is important that those under investigation for such crimes take care to protect their rights and interests. For more information, speak to an experienced criminal defense attorney.
- You hear this, the "prevention of arson!"  How is a registry going to "prevent" arson?  It won't!


"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


UK - Man falsely accused of molesting girls

View the article here

People who make false accusations, should be brought up on charges and put into jail for awhile!  Until that is done, vigilantism will continue!

09/30/2009

By Pat Hurst

HUNDREDS of leaflets have been handed out by police to stop vigilantes targeting a man falsely accused of being a paedophile.

People in Accrington were sent a warning informing them allegations made by two girls about a local man in his 60s are `false and without foundation'.

Allegations

The girls involved reportedly asked to walk the family's dog and visited the house regularly before the allegations were made last month.

Police say they investigated the claims thoroughly and found them to be groundless.

But hate mobs have targeted the home of the suspect and his wife, who suffered vandalism and insults.

The victim says he has suffered a stroke over the stress and the rumours of him being a child molester. He has called for his accusers to be prosecuted.

The leaflets given to residents by Lancashire Police read: "ATTENTION RESIDENTS. There have been allegations made about a local resident paying inappropriate attention to young children in the area."
- Is that all it said?  Doesn't look sufficient enough to get the point across, to me!  If this is exactly what is said on the fliers, then it may lead to more assaults!

"Allegations of this nature are taken very seriously and this matter has been FULLY investigated by the police."
- Sure doesn't look like it, not by what was put on the fliers!  If it's been investigated, what is being done to the people who made the false accusations?  If nothing, why not?

"The result of our investigation is that the allegations have been found to be false and without any foundation whatsoever."

Insp Mick Johnson said: "Investigating officers became aware of issues that may be related to that allegation, allegations of damage and juvenile nuisance in the area."

'Investigations'

"The allegations have been fully investigated and no further action is being taken."
- So then I see you do NOT "take it seriously!"

"Since the letter drop, the instances of nuisance in that area have dropped dramatically."


"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


GA - Homeless Sex Offenders, directed to this encampment by probation, now being forced to leave!

More Videos Here

Video Link


Video Link



"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


GA - Sex offenders pack up camp in Marietta

View the article here

See this article as well, it states:

These stories become sicker every passing moment. As to those on parole or probation they are NOT ALLOWED to move without PRIOR approval of their Agent, and Agents normally will not allow a move without first checking the place these folks want to move to. Who will win, Transportation or Corrections? If it were me on P/P I'd sit there, get arrested and force everyone into court, let the judge slam ALL the state workers, because it is not the fault of the men living in the tents. Thats the only way to generate proper documentation for any Corrections Hearing as to a violation of P/P.

09/29/2009

By Kim Isaza

MARIETTA - The eight sex offenders camping in woods in Marietta because they had no place else to go packed up and left the site on Tuesday, as ordered.

The day before, officials from the state Department of Transportation, which owns the 25 acres, told the men to leave, but gave them one day to do so.

"It's really very common that we find people living on our land, often in tents or under bridges," GDOT spokesman Mark McKinnon said. "Simply from a liability standpoint, we don't let people live on our property, and as soon as we are made aware of it, we ask them to leave. This is a little different, with these people saying they have nowhere else to go, so we did give them 24 hours to gather their belongings."

The property is contiguous to a local office of the state DOT, McKinnon said his agency was unaware of the campers until Monday, "when CNN walked in."

Under state law, registered sex offenders are barred from living within 1,000 feet of a church, school, park or other area where children gather. The men living at this site, off of Cobb Parkway just north of the Canton Road Connector, told reporters that their probation officers had directed them to the site, as a last resort.

Calls to Pam Rittweger, the head of the state probation office in Marietta, were not returned by press time.

The state Department of Corrections responded to questions with this statement: "There are approximately 160,000 felony probationers under supervision of the Department of Corrections. Of those, more than 6,000 are sex offenders, and approximately 400 are homeless."
- From looking at the Georgia Registry, there are a total of  17,499 registered sex offenders on the registry, and a total of 121 homeless sex offenders.

"These homeless sex offenders present many challenges to Probation Officers and sometimes end up squatting in non-traditional locations in order to be in compliance with the law. While this is discouraged, the problem does exist. Ultimately, it is the responsibility of the offender to find suitable housing; however, Probation Officers, who are sworn officers who take an oath to enforce the law, work daily to assist them in their efforts."
- And the legislature, who "took an oath" to uphold the constitution, are not doing so!

"There is no policy that directs offenders to live in the woods as a last resort in Cobb County or any other county in the state. While officers may have suggested the location, no offender was ever directed or forced to reside there. The primary mission of the Georgia Department of Corrections is public safety. That mission remains the focus of our efforts."
- You are wrong, they probation officers directed them there!

At the campsite at midday Tuesday, members of the media outnumbered the campers, all of whom had packed up and were ready to leave.
- Got to get that next hot "sex offender" story!

_____, 30, said his probation officer had helped him find a place, though he declined to say where he was headed.

Another man at the camp who spoke on condition of anonymity thought for a moment about whether he would want to go to a probation detention center.

Finally, the forty-something man with cropped gray hair and blue eyes said, "No. I just got out of detention two months ago. I'm not going back. I'd rather live in the woods."

As for whether the state regulations are overly severe, State Sen. Steve Thompson (Email), a Marietta Democrat, said state legislators must decide whether the law is working.

"I don't think the state can have knowledge and willfully condone" such practices as probation officers telling offenders to live in the woods, Thompson said. "There's no easy solution, and I'm betting this is happening in other places."

"The state needs to address the responsibility of overseeing these people," Thompson said. "This doesn't make a lot of sense."


"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


TX - Teen with 47 IQ gets 100 years in sex abuse case

View the article here

This is just absurd, cruel & unusual punishment!  What's next, Eugenics?

06/10/2009

Case stems from charges involving the fondling of a 6-year-old neighbor

PARIS - A teenager who has profound mental disabilities was sentenced to 100 years in prison after pleading guilty to charges in a sex abuse case involving his 6-year-old neighbor.

_____, 18, of Paris, was arrested and charged after a neighbor found him fondling her stepson in September. The teen pleaded guilty to five counts, including aggravated sexual assault and indecency by contact, and a jury decided his punishment.

Lamar County Judge Eric Clifford decided to stack the sentences against _____ after jurors settled on two five-year terms and three 30-year terms, The Dallas Morning News reported Wednesday. The judge said neither he nor jurors liked the idea of prison for _____ but they felt there was no other option.

"In the state of Texas, there isn't a whole lot you can do with somebody like him," Clifford said.
- Sick bastards!  You could get him the help he needs, not throw him in prison for life!

Diagnosed as mentally disabled
_____ has an IQ of 47 and was diagnosed as mentally disabled as a child. He never learned to read or write and speaks unsteadily.

Despite being a target of bullies, he was courteous, well-behaved and earned money by doing chores for neighbors, supporters said. His parents say he'd never acted out sexually.
- This kid was probably molested himself!

"He couldn't understand the seriousness of what he did," said his father, Robert _____. "I never dreamed they would think about sending him to prison. When they said 100 years — it was terror, pure terror, to me."

Jurors said they sent the judge notes during deliberations in February, asking about alternatives to prison, but didn't get a clear answer. They believed the judge would order concurrent sentences, jurors said.

District Attorney Gary Young said he sympathized with _____'s situation but stands by his decision to prosecute on five counts. Prosecutors commonly pursue several charges for a single incident to see which the jury will support.

Diversion program not an option
Young said a diversion program was not an option since the law doesn't allow that for serious felonies.
- Well maybe it should?  If anything, he should've been sent to a juvenile facility, or somewhere he could get the help he needs.  This world is just sick!

"I hope people will remember he committed a violent sexual crime against a little boy," he said.
- And he is mentally handicap as well, which you apparently do not care one bit about!

_____'s appellate attorney, David Pearson, said the court-appointed doctor did the bare minimum to assess competency and ran tests geared for mental illness, not mental retardation.

He said an appeal will be filed.

Is this what is next? (Video Link)



"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


GA - Sex Offender "Concentration" Camps - Thanks to Jerry Keen and others in legislature

More videos can be seen here

Video Link


Video Link



"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved


WA - Microsoft To Release Free Antivirus PC Software

Click the image to visit the site



"TThey who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." - Benjamin Franklin (United States Constitution, Bill of Rights)

© 2006-2009 Sex Offender Issues , All Rights Reserved