Thursday, January 5, 2012

FL - Why did Florida authorities fail to inform registered sex offenders of 2010 law? Public deserves answers

Original Article

01/04/2012

"I didn't know" is not a valid legal defense when it comes to the vast majority of local, state and federal laws.

Get caught breaking a law — whether you knew it was a crime or not — and you can expect to pay the consequences.

There are exceptions, however. Some criminal statutes require potential offenders to be notified of a new law before the offender can be prosecuted for violating the law.

Such is the case with a 2010 Florida law requiring registered sex offenders to provide advance written notice when visiting a school or day care facility (unless picking up or dropping off the offender's own children). In addition to prescribing certain conditions on registered sex offenders — including signing in upon arrival at a school or day care facility, and being given an escort on campus — the 2010 law also requires authorities to notify registered sex offenders of the law.

It didn't happen in the case of [name withheld], a registered sex offender living in Vero Beach who visited Osceola Magnet School in September with his wife but failed to first notify the school principal in writing. When Indian River County authorities learned about the incident, they discovered [name withheld] couldn't be prosecuted because, according to Assistant State Attorney Chris Taylor, there is no evidence [name withheld] or any other registered sex offender was given notice of the law.

The 2010 law is a good law. It is designed to provide an extra layer of protection for our children. However, for the statute to be enforceable, Florida authorities first needed to contact registered sex offenders and make them aware of their obligations under the law. This didn't happen.

It's easy to understand authorities failing to inform some registered sex offenders of the law. But failing to inform all?

This is disconcerting.

More than 18 months after the law went into effect (July 2010), the message finally is getting out — both locally and statewide. Indian River County Sheriff's Office detective Eric Flowers, who investigated the Osceola incident, is spearheading efforts to inform registered sex offenders in Indian River County, as well as making the appropriate state authorities aware of the statute.

Every registered sex offender in the Sunshine State must be informed of the 2010 law — as quickly as possible. And Florida authorities — from the top, down — must review their procedures and determine why this glaring oversight occurred.


FL - Captain's (James Lee Foy) Future With Lake Wales PD Uncertain, pleaded no contest to having sex with a teenage girl in 1985

James Lee Foy
Original Article

So tell me, if his record(s) were expunged, and could not be found, how is it that this article has just recently surfaced?  If the records could not be found, maybe the victim has spoken out?

12/18/2011

By Phil Attinger

LAKE WALES - Pleading no contest to having sex with a teenage girl in 1985 may cost police Capt. James Lee Foy his job.

Foy, 51, was placed on paid administrative leave from his $66,000-a-year job Dec. 6 by police Chief Chris Velasquez — the day his past was revealed in an NYT Regional Media Group investigative story published by The Ledger.

"Public confidence is critical in this profession," Velasquez said, "and we take it very seriously."

The chief said Foy's future with the department is uncertain as he and other top officials look into the matter. No timetable has been set to complete the process.

"We do everything and will do everything to ensure that confidence in us," the chief said.

He took the action against Foy even though the chief described his performance in Lake Wales as "exemplary."

Foy was 24 years old and had been an officer with the Bradenton Police Department for three years when he pleaded no contest to a charge of having sex with a 15-year-old girl, according to Sarasota Herald-Tribune news reports from that time. The Herald-Tribune, like The Ledger, is part of the NYT Regional Media Group.

Foy lost his law enforcement certification. But after the record of his conviction was later expunged, he regained his certification in 1990 and was eventually hired in Lake Wales in 1997.

Attempts to contact Foy for comment were unsuccessful.

Meanwhile, the revelation about his past has prompted soul-searching in the department.

The Media Group investigative series centered around the way law enforcement misconduct cases are handled and included a look at officers who had multiple, sometimes dozens, of misconduct infractions but were allowed to keep their certification.

Foy was one of the few who was able to regain his certification after losing it.

CHECKING OTHERS

Deputy Chief Troy Schulze said the department is reviewing files of the department's other 43 full-time and five part-time and reserve officers just to ensure nothing else is amiss.

If department administrators have concerns about any officer's record, he said, they will look into it further.

Schulze said no deadline has been set for that review.

He also said, that since the department tightened hiring procedures in 2008, someone with Foy's past would no longer get hired by LWPD.

On Dec. 8, David Smith, president of the Lake Wales Branch of the NAACP, sent a letter to State Attorney Jerry Hill asking whether Foy should be allowed to testify in court or live within 1,000 feet of a school, park or a bus stop.

"We have got men who have gone to prison and can't teach," Smith said of sex offenders. "They can't do anything."

Sharon Franklin with the State Attorney's Office in Bartow said Tuesday the office is still gathering information related to Smith's questions and no decision has been made yet.

Smith and other local NAACP leaders met with Velasquez and City Manager Therese Leary on Wednesday to discuss several matters, including Foy.

"They were just as shocked as we were," Smith said.

Even without an official record, Smith — a former Polk County sheriff's deputy — said the offense should still have bearing on whether Foy can serve in law enforcement.

"The crime still happened," Smith said. "The fact is he came in contact with a 15-year-old. It's still in the mind. If it happened one time, it will happen again."
- This is not exactly true.

Smith said that's the reason the sexual offender registration system was set up in 1997.

HIDING THE PAST

Foy was not required to be on the register because the crime happened more than 10 years before that.
- So what, there are others who were convicted 1, 2, 3 or more years before the law, but they are on the registry.  So if they are, he should be as well.

And Foy was able to have his criminal record sealed and expunged in January 1988, according to news reports at the time by the Herald-Tribune, because he pleaded no contest to the charge and the judge withheld adjudication.

With no records of the case, he was able to regain law enforcement certification in February 1990 and serve as a full-time deputy sheriff at the Hardee County Sheriff's Office.

Foy was sentenced on Sept. 19, 1985, to three years' probation, but Manatee Circuit Judge Thomas Gallen withheld adjudication, citing Foy's age and lack of criminal record, according to Herald-Tribune news reports at the time.

By withholding adjudication, the charge against Foy was dismissed when he completed the terms of his sentence.

The 2nd District Court of Appeal in Lakeland affirmed the trial judge's decision in June 1986. The State Attorney's Office had appealed the sentence of probation, arguing Foy should have been sentenced to prison, especially because he was a police officer.

Foy's records were sealed in January 1988 by Manatee Circuit Court Scott Brownell and destroyed shortly after that by court order.

Prosecutors did not object to that, the Herald-Tribune reported at the time.

The destruction of the records came five months before Florida law changed making it more difficult to expunge a record and nine years before the sex offender list was created.

According to current state law, a record may not be sealed — even if adjudication is withheld — if a defendant is found guilty, pleaded guilty or pleaded no contest to a sexual offense, even if the crime doesn't mark that person as a sex offender.

Also, under current Florida law, people who have criminal records expunged may not deny the arrests took place if they are criminal defendants or seeking employment in law enforcement, as a lawyer, as a teacher or with an agency that advocates for children, the elderly or the disabled.

That law did not apply to Foy because of when the offense happened.

Foy was able to go back to work as a police officer after the Florida Criminal Justice Standards and Training Commission reviewed his case in 1989.

Since no court records remained of his conviction, the commission couldn't legally deny him from holding a law enforcement job, according to the Herald-Tribune article.

Foy was recertified on Feb. 9, 1990, according the Herald-Tribune.

HOW IT HAPPENED

Without records, a conviction would not have shown up when Foy applied to the Lake Wales Police Department in 1997, Capt. Patrick Quinn said.

Quinn, a 23-year veteran of the Lake Wales police force who oversees the department's hiring, said convictions in expunged records wouldn't show up now or be searchable on a database.

But, he said, it's a lot harder to get a record expunged now than it was prior to 1988.

According to Foy's personnel file, this is what the Lake Wales department found out about him when they did a background check in 1997:

He started in law enforcement at the Bradenton Police Department on April 1, 1982, at age 22.

He received letters and commendations from victims of accidents and crimes and from fellow officers in Bradenton recognizing both his professionalism and dedication.

A woman thanked him for helping retrieve her husband's stolen tools from a thief.

A couple whose Harley-Davidson motorcycle broke down in the middle of the road thanked him after he helped push the motorcycle to the side of the road and brought them a wrench to fix it.

His only reprimands during his first three years included driving from a gas pump with the nozzle still in the tank, hitting something in a drive-thru with the left rear passenger door open, and handing his gun to another officer when a man told Foy he "wouldn't have been able to talk to (him) without that badge and that gun."

Foy was also named Bradenton Police Department's Officer of the Year in 1984.
- So how did it all happen again?  This section was to describe that, but you spend all the time describing how good the man is, etc.  It's ironic how they do this, when it's a cop or government official, but when it's someone from the general public, they do the opposite.

NOT IN HIS FILE

What his file did not contain was that he was arrested and charged in June 1985 with two other officers in a case involving sex with a 15-year-old girl.

News reports said liaisons took place between October and December 1984 and were arranged by one of the other officers.
- It was arranged by other officers?  So where they convicted of anything?

Foy's personnel file from when he was hired did note that the Standards and Training Commission had revoked his certification in 1987, but it did not contain a reason.

The hiring record said he been released by the Bradenton department because he had lost his certification. A note in the file said "no cause for decertification." Bradenton police would only give the dates of his employment.

The file also said he lost jobs with the Palmetto Police Department in June 1989, after being hired on Nov. 30. 1988, and the Hardee County Sheriff's Office on July 1, 1989, after nine days, but did not give any reasons.

In the case of Bradenton and Palmetto, the background check noted that reasons for his dismissal were given verbally because they could not be part of a public record.

No criminal history was found in checking with any of the departments he had worked for.

He joined the Lake Wales department on July 21, 1997, and has worked there ever since.

Foy was promoted to a higher grade of police officer Aug. 23, 1999; to sergeant Jan. 15, 2006; to lieutenant April 8, 2007; and to captain Dec. 14, 2009.

When Foy applied to Lake Wales, officers' employment histories were not on a database with the Florida Department of Law Enforcement as they are today, Quinn said.

At that time, both the Police Department and city personnel department collected police applications, which made tracking them more difficult, Quinn said.

And, he said, interviews were either done by the police chief or deputy chief with no standard list of questions.

NEW PROCEDURES

Lake Wales police tightened up the hiring process in 2008 to clear up some of those inconsistencies, under then-Police Chief Herbert Gillis, Quinn said.

Now, only the personnel department takes applications.

Police officials see them when the department has an opening, and a three-step review process to select the best candidates has been instituted.

During the first of those, the department's Committee for Professional Responsibility reviews applications for certification by FDLE's Standards and Training Commission, employment history and driving records, Quinn said.

And at one point, the potential officer is given a background check packet to fill out.

"It asks everything under the sun," Quinn said.

He said that it doesn't specifically ask if someone had a record expunged, but no agency would be able to get information on an expunged record, he said.

Quinn said the questionnaire asks whether an applicant has ever committed any crimes and that is used as the basis for a polygraph test, which has been in use since Quinn was hired.

And, Quinn said, Google and other search engines now make it easier to pick up on someone's past.

CLOSING THE CRACKS

Velasquez, who has been with the department 18 years, said the improved the hiring process is on the "leading edge" of finding, recruiting and hiring "the highest caliber employees we can get."

With more people involved in the process, he said, there's less chance something might get missed.

"We want to leave no stone unturned and no question unanswered," he said.

He said he couldn't speak about Foy's case, but said everybody makes mistakes and have before in their lives.
- True, and so has the over 700,000 ex-sex offenders in this country, but I don't see you saying that about them.

"People are human," he said.

But the chief also said police officers must have the public's confidence.

"We try to make sure we bring the best to the community."


States struggle with national sex offender law

Original Article

01/05/2012

By Maggie Clark

Six years ago, Congress passed what is known as the Adam Walsh Act, aimed at protecting children from predators by collecting sex offender data in a national public registry and requiring those people listed in it to report their movements to law enforcement. Adam’s law required states to place convicted sex offenders in one of three tiers, based on the severity of their crimes. The act, named for a 6-year-old boy who was kidnapped and murdered in Florida in 1981, gave the states five years to comply.

The vast majority of states did not comply on time. As the five-year deadline of July 2011 was approaching, only four had met the terms of the law. The Obama administration issued new guidelines (PDF) earlier in 2011 that gave states more discretion in implementing the act and clarified how to share information, and in the past year, 12 more states have become compliant. But most still are not, even though they will lose 10 percent of their justice assistance grants (PDF) from the federal government in fiscal year 2012 as a penalty for inaction.
- This is basically bribery, which the last time I checked, was a crime.

It’s not that states are uninformed about the law; it’s that they have substantial objections to it. Many see it as an unfunded mandate requiring them to spend millions of dollars collecting information and placing it in the national registry. They are reluctant to bear the cost of updating their own technology to register digital fingerprints, palm prints and DNA, and of paying for the additional time that law enforcement officers would spend processing sex offenders who appear before them in person.

Advocates for juveniles also complain about what would be a lifetime listing for some juvenile sex offenders, which they say goes against any commitment to rehabilitate juveniles, rather than punishing them for long periods of time.
- The "commitment" is not just for juveniles, the whole purpose of the prison system is to "rehabilitate" people, not just lock them up for punishment.

Last month, Pennsylvania became the 16th state to sign on to the act, just barely averting the federal aid penalty. Pennsylvania changed its previous law to add juveniles to its registry and require out-of-state and homeless people convicted of sexual offenses to register with law enforcement. “We can hope that by making our laws tougher,” Governor Tom Corbett said in signing the bill, “we can spare others the pain and grief that has visited too many families.” Pennsylvania had about 11,000 registered sex offenders (PDF) as of June 2011.
- It's not going to "spare" people the pain and grief, someone else will be sexually abused, that is a fact.  Sad, but it's true.  And no amount of laws will prevent that.

But many other states are continuing to voice their objections to what the federal law expects of them. Susan Frederick, senior federal affairs counsel at the National Conference of State Legislatures, expects states to continue to press Congress for more discretion about which offenders to place on the three-tiered national registry, and for how long. Currently the law requires that convicted sex offenders, including juvenile offenders, remain in the registry for anywhere from 15 years to life, depending on the severity of their crime.

To ask for modifications in Adam’s law to render it less strict is a politically difficult request. Even in the face of compelling evidence that the federal law needs to be amended if all states are to comply, Congress may be reluctant to make changes. “It’s a political argument, and nobody wants to be seen as soft on sex offenders,” says Frederick. “The parents of these children come to committee hearings and share their stories, and it’s very difficult to look those parents in the eye and say we need to have flexibility for registering offenders.”

Costs and benefits

In the absence of changes to Adam’s law, however, some states will argue that complying with it is simply not worth the costs. Even though they lose 10 percent of their justice assistance money, that is usually less than they would end up paying for compliance. Ohio, which was the first state to become compliant in 2007, had within two years spent about $10 million just defending itself against lawsuits from offenders sentenced to the registry, according to the Pittsburgh Tribune-Review. In contrast, Ohio would have lost only about $2 million for non-compliance during the same period.

These calculations may be the main reason why other large and budget-challenged states such as Texas, California, and New York have not taken steps to comply. A Texas Senate study conducted in 2010 found that implementing the act in that state would cost about $39 million, in comparison to a loss in federal grants of $1.4 million per year. Texas legislators have also argued that the state’s current sex offender system, which was handling 66,587 registered sex offenders as of June 2011, is already backed up and that imposing another layer of requirements would only add to the strain of struggling law enforcement agencies.

The money that states will lose will be far less than they’ll have to pay for coming into compliance,” says Amanda Peterutti, associate director of the Justice Policy Institute, “and states are looking at those costs and saying ‘no way.’

Nebraska, which became compliant with the Adam Walsh Act in 2009, is now having second thoughts. Before compliance, Nebraska already maintained a three-tiered classification system for its more than 3,000 sex offenders, based on psychological evaluations and projected risks of re-offending. The names of those in the lowest tier of offenders were kept on an internal list, the second tier list was distributed to schools and other children’s centers, and the third, the list of most dangerous offenders, was made public. But when the state complied with the Adam Walsh Act, the previous tier system was abolished and all sex offenders were placed on a public list, no matter the severity of their crime or their risk of re-offending.

In retrospect, we question whether we are really protecting people with the high number of people out there who aren’t truly a risk,” Nebraska state Senator Amanda McGill said at an October hearing. Nebraska’s legislature will likely consider a bill in the 2012 session to authorize a study of the effects of the law in the state.


NJ - Bill restricting where sex offenders live wouldn't help kids

Click to enlarge
Original Article

01/05/2012

The basic premise is inarguable: Who doesn’t want to protect children from sex offenders? Yet in the name of doing so, lawmakers have proposed feel-good legislation that’s more likely to do the exact opposite.

This bill, expected to be heard in the Assembly today, would allow municipalities to forbid sex offenders from living within 500 feet of a school, playground or day care center. Its sponsors, including Assemblywoman Pamela Lampitt (D-Camden), insist it will help sex offenders avoid temptation. As she puts it, “If you’re going on a diet, you wouldn’t want to see chocolate in front of you all the time.”
- Apparently another idiotic politician who thinks all sex offenders are drooling over kids.

But would moving somebody 500 feet away from a supermarket make them any less obese? Not likely.

Think about the practical impact of the bill. Right now, nearly half of all sex offenders are concentrated in cities, where there is a school, playground or day care center on nearly every corner. So the effect of this bill would be to uproot massive numbers of sex offenders, forcing them to move to the suburbs, or go into hiding.

Their relationships with parole officers, family members and any other support network would be disrupted. And experts say that would make them even more dangerous. That’s why victim advocates, such as the National Alliance To End Sexual Violence, oppose residency restrictions.

In Iowa, since the state imposed residency restriction laws in 2005, the number of sex offenders who are unaccounted for has doubled. “We’re lucky if we know where 50 to 55 percent of them are now,” said Don Zeller, sheriff of Linn County.

In Miami, a homeless tent city under a bridge overflowed after the city enacted restrictive residency laws for sex offenders. That is no way to improve public safety.

Nobody wants their kid anywhere near a sex offender, of course. But the vast majority of sex offenders were not strangers; they chose victims they already knew. To protect kids, we have to watch them, educate them and communicate with them.

Tightening the circle around sex offenders gives us the illusion of safety. But in reality, it would leave our children less safe.


PA - Bristol taking steps to rescind sex offender law

Original Article

01/05/2012

By GEMA MARIA DUARTE

Bristol is considering removing its sex offender ordinance from its books, a move that other communities around the state have taken in recent months.

The council is expected to vote on advertising a repeal of its ordinance at Monday’s meeting as advised by borough solicitor Bill Salerno.

Bristol’s consideration to do so comes from the Pennsylvania Supreme Court’s May ruling that Allegheny County’s prohibition on where registered sex offenders can live would isolate many in what would amount to “localized penal colonies.”

That decision spawned worries that municipalities with such ordinances could be exposed to liability in lawsuits.

There are 14 registered sex offenders living or working within the 1.9-square-mile town, according to the Pennsylvania Megan’s Law website. In Bucks County, there are 320 registered sex offenders — of those, 11 are incarcerated.

Most local ordinances, enacted a half-dozen years ago, have restricted convicted sex offenders from residing or living within 2,500 feet of any school, park, amusement park, skate park, roller rink, arcade, skating rink, athletic fields, movie theater, playground or child daycare facility.

In the county, Doylestown, Tullytown, Falls and Yardley have rescinded their local ordinance. Other municipalities such as Bensalem, Middletown, Newtown, Newtown Township and Upper Makefield have ordinances that are still in effect. Others, such as Wrightstown and Upper Southampton, never had such an ordinance in their law books.


VA - Former, local police officer (Allen Hoffman) pleads guilty to child porn charges