Monday, December 13, 2010

The politics of abusive lawmaking in America

Original Article

12/13/2010

By alaskalive

When Politicians vote for and support the legalized banishment of United States Citizens, it does not do anything to build up America as a Strong and Just Nation. Voting to support laws which doom citizens to a life poverty once they have one felony conviction on their public record only supports a further breakdown of working class society.

Once a person has a felony conviction on their record, life for them consists of trying to conceal their past mistakes. Unfortunately, politicians, lawmakers and the public seem to promote the opposite. Once a person in these United States of America has a felony conviction, they find it hard to get a job, launch a career and little things like just having a decent place to live seem disappear from their attainable goals.

Read the rest of the article here


CANADA - Will we be safer? Strict new legislation will ensure every sex offender is put on a federal registry

Original Article

12/13/2010

By Michael Friscolanti

Eighteen months ago, the federal government promised to finally fix Canada’s dysfunctional sex-offender registry. At the heart of the proposed legislation was a “mandatory inclusion” rule, ensuring that every person guilty of a sex crime actually ends up on the database. No exceptions. No excuses.

But eighteen months later, as Bill S-2 (PDF) slowly works its way through Parliament, the status quo stands in the courts: a prosecutor must still ask a judge to add a rapist or pedophile to the registry—and some judges are still refusing. Like in the case of J.W., a Nova Scotia man sentenced to 15 months probation for pinning his girlfriend against a wall and tearing off her clothes. The Crown wanted him registered, but J.W. told the court he was planning to enlist in the military after serving his sentence, and that checking in with police on a regular basis would be tricky.

The judge gave him a pass. “As a member of the Canadian Forces, J.W. will, no doubt, be required to make frequent changes of his primary residence due to the changing locations of his basic training, ongoing training and field manoeuvres as well as placements on tours of duty,” wrote Justice Theodore Tax. “These frequent changes, which may be in remote locations inside or outside of Canada, will no doubt have a significant impact on his ability to comply with the [sex offender] reporting obligations.”

Such exemptions will soon be extinct. S-2 has already passed through the Senate, and when it clears third reading in the House of Commons (likely in early 2011) judges will lose all discretion when it comes to the registry. Every single sex offender, regardless of the circumstances, will have to report to police once a year, notify the cops of an address change, and endure the odd visit from detectives if, for in—stance, a child is abducted from the neighbourhood.

For the RCMP, the force in charge of the registry, the new law will remedy years of frustration. Since the database was first launched in 2004, the Mounties have been warning their political masters that the system is an embarrassing mess—riddled by weak legislation, laughable technology, and a Parliament obsessed with protecting the privacy rights of proven criminals. Optional registration is just one of countless deficiencies. Hundreds of offenders are missing, countless more have exploited a rule that allows them to leave home for two weeks without telling authorities, and the computer that is supposed to keep track of everyone is so archaic that it can’t even record the most basic fact: when is a person scheduled to check in?

After a Maclean’s investigation, based on scathing internal memos obtained under Access to Information laws, the federal Conservatives finally took action. But today, as their response inches toward royal assent, a delicate question lingers: is mandatory inclusion the best solution? Should criminals like J.W.—an 18-year-old first-time offender deemed a “very low risk” to strike again—be lumped in the same category as hard-core sexual predators? The registry, which already contains more than 24,000 names, was designed to provide police with an instant list of suspects living near a crime scene. But does the next J.W. really belong on that list? Will society be any safer?

Sexual assault is everything from pinching someone to full, violent rape,” says Stephen Robertson, J.W.’s lawyer. “Are you telling me that one end of the spectrum should be treated the same as the other? It would be terrible. The judge could see this was a decent boy who let his impulses get away one time and was immediately remorseful. The military angle was just one extra thing the judge could point to.”

Critics of the mandatory rule can point to another case: R. vs. [name withheld]. Twelve months ago, the former general manager of the Saskatchewan Roughriders was granted an absolute discharge (guilty, but no criminal record) for sexually assaulting his children’s 16-year-old babysitter. Felling “loopy” after popping pills for back pain, [name withheld] grabbed the teenager’s hips, puts his fingers through her belt loops and wheeled her around. In the judge’s words, “while in that position there was physical contact of a sexual nature.”

The whole episode lasted just a few seconds—and [name withheld] has said he doesn’t remember any of it. He later apologized to the unnamed girl (she forgave him) and the prosecutor didn’t even bother asking for a registration order. Under the new system, however, [name withheld]’s name would have been automatically entered—no questions asked.

He is not somebody who should be on a sex offender registry,” says Aaron Fox, his Regina lawyer. (Now the GM of the Edmonton Eskimos, [name withheld] did not respond to an interview request through a team spokesman.) “The registry will begin to become meaningless,” Fox continues. “It just won’t have the significance it’s supposed to have.”

Gary McLennan does not agree. A retired Mountie who ran the registry centre in Saskatchewan, he says there is no magic tool that can predict who will reoffend. And people like [name withheld], who commit so-called “minor” crimes, are removed from the computer after 10 years. “He should have been on, I’m sorry,” McLennan says. “It’s not a big inconvenience. Once a year you have to register and have your picture taken, and after 10 years it’s goodbye. You prove to us in 10 years that you’re not going to recommit an offence.”

As for the Tories, don’t expect any last-minute amendments that scrap the mandatory plans. “Police services and victims’ groups have been clear: the national sex-offender registry must be strengthened so that it better protects our children and communities from sexual offenders,” says David Charbonneau, a spokesman for Public Safety Canada. “We are determined to strengthen the registry so that it becomes a more effective tool.”


FL - Is Florida holding sex offenders in legal limbo?

Original Article

12/12/2010

By Todd Ruger

DeSOTO COUNTY - At a state sex-offender treatment center outside Arcadia, hundreds of inmates who completed their prison terms are held until they receive sufficient treatment to learn to control their criminal behavior.

But some convicted pedophiles and rapists who fight their commitment under the "Jimmy Ryce (PDF)" law can find themselves stuck there indefinitely, in a legal no-man's-land.

The sex offenders do not receive treatment until a judge declares them a danger to society and orders an official commitment to the center. But the commitment process can take years, even though the law calls for that trial to happen within 30 days.

So there they sit, held as "pre-trial detainees," not getting counseling or mental health treatment they may need to get better and someday be set free.

Last week, the 2nd District Court of Appeal looked at one detainee's eight-year, pre-commitment stay at the Florida Civil Commitment Center and took what it called the "extraordinary step" of asking the Florida Supreme Court to step in immediately.

"The issues raised in this case involve potentially serious violations of constitutional rights," the ruling states.

The story of [name withheld]'s stay at the Florida Civil Commitment Center is complicated, but the dilemma it raises is clear. While no judge has ever said he should be committed, he has been detained there since 2002, receiving only limited treatment.

The appeal court's ruling indicates other detainees find themselves in a similar Catch-22, where fighting their detention can mean being incarcerated for years without a commitment order or treatment.

"If the department is not providing treatment during this delay, a pretrial detainee may not actually hold the keys to the cell in which he is civilly detained," the court of appeal ruling states.

Given the rather remote location of the Arcadia facility, the only one of its kind in Florida, another issue has arisen. The detainees at Arcadia are sometimes hundreds of miles from the county where their commitment case is being contested. That means the judges in DeSoto County who hear the detainee complaints are powerless to take action in those cases.

The lower court asked the Florida Supreme Court to look at the situation illustrated by [name withheld]'s case and provide guidance about how detainees can challenge delays in treatment and trial.

How it works in Florida

Florida's commitment center is one of dozens across the country that keep sex offenders involuntarily locked up beyond their prison sentences. The programs raise constitutional concern among courts and civil rights advocates who say they punish sex offenders twice for the same crime.

Lawmakers say it makes the community safer from a type of criminal that is likely to re-offend.

Florida spends $25 million a year to run the center created by the Jimmy Ryce Act of 1998, named for a 9-year-old boy who was kidnapped, raped, murdered and dismembered by a ranchhand in Miami-Dade County.

The law says that before a sex offender's prison term ends, state attorneys can file petitions asking judges to force civil commitment on inmates who were convicted of a violent sex crime.

If a judge finds there is probable cause that the inmate is a violent predator, the inmate is given an attorney and sent to the treatment center in Arcadia to await trial.

The trial is supposed to happen within 30 days, but often the defense attorneys waive that time limit as they search for experts to testify that their client does not need to be committed.

"Once the right to the 30-day trial is waived, however, these proceedings often seem to take many years," the court of appeal wrote. "The fact that the detainee is being held sometimes hundreds of miles from the trial forum does not facilitate timely resolution of these cases."

The Department of Children and Families contracts with a private company, GEO Group, to operate the facility. DCF officials say the center does not provide treatment to pre-trial detainees because treatment is expensive and can take a long time. If the detainee ends up not being committed to the facility, it could be a waste of taxpayer money, DCF spokesman Joe Follick said.

Also, successful treatment requires that offenders fully disclose all their crimes, so someone fighting a commitment would not want to do that, Follick said.

Meanwhile, the center does not have the power to review who is there and force the courts to act on the case.

In the case of [name withheld]'s eight-year stay, he has received more treatment than any other pre-trial detainee, according to court transcripts. The court of appeal got involved when [name withheld] asked a DeSoto County judge to order the center to give him more treatment.

[name withheld] went to prison in 1994 for a kidnapping and rape of a Boca Raton woman who asked him for a ride to work. When he was about to be released in 2002, prosecutors told a judge that psychologists found him to be a sexually violent predator whose mental condition makes him likely to re-offend.

Since then, a host of issues have combined to keep [name withheld] there.

The clerk's office mistakenly closed his civil commitment case. Starting in 2005, three years passed without any filings or court activity on the case, with prosecutors saying they were busy on other cases. [name withheld]'s defense attorney has a history of misplaced files and complaints of neglect from other detainees, according to Florida Bar records.

Kristin Kanner, an assistant state attorney who handles Jimmy Ryce cases in Broward County, says the 2nd District Court of Appeals is wrong because it did not have all the information.

[name withheld] could have pushed his case forward, but has declined an offer to self-commit because he would have to undergo a polygraph test as part of his treatment, and Kanner speculated that he does not want to discuss his acquittal on a charge of murder in a fatal fire.

"I look like I've been holding him there unconstitutionally, but that's not the case at all," Kanner said. "This is not a guy who's been pounding the table asking for a trial. It's not really an injustice; he doesn't want his trial."

Kanner says she is ready to try his case at a moment's notice. She recently set a status hearing for the case after the court of appeal started asking questions about [name withheld]'s case.

It is unclear whether the Florida Supreme Court will take up the issue.