Tuesday, September 4, 2012

Symposium: Preventative Detention: Sex Offender Exceptionalism and Preventive Detention


Corey Rayburn Yung

University of Kansas School of Law

September 4, 2012

Journal of Criminal Law and Criminology, Vol. 101, No. 3, 2011

Abstract:
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.

Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.


NM - KOB News distorting the facts about the conference in Albuquerque, as usual!

Original Article

When it comes to sex offender issues, almost always the media distorts the truth. This conference is not about reducing punishment, but to reform the laws so they are fair. Read more from ReformSexOffenderLaws.org, or here.

09/03/2012

By Chris Ramirez

This week, Albuquerque is host to a national conference on sex offender laws. Attorneys, politicians and registered sex offenders will be in the city to talk about the subject. The topic has some on edge, so much so, the Albuquerque Police Department is stepping in.

"We were getting a lot of calls. Naturally this a very emotionally charged issue having a national sex offender registrant conference here in New Mexico," said APD Officer Tasia Martinez.

The conference will be held at the Ramada Inn and Conference Center near Eubank and Hotel Circle. The “Reform Sex Offender Laws” website proudly boasts Albuquerque as its location for its fourth annual conference. The website states the conference will bring in speakers to find ways to reduce punishment for sex offenders and limit access of the sex offender registry to law enforcement only.
- The crossed out text is incorrect.  Why does the media distort the facts?  Use the links above to read what the conference is about yourself.

The main goal of the police department will be to keep the peace and make sure that it doesn't cause any hick ups in the community," Officer Martinez said.

Police said they are prepared for anything that can happen and they plan to lay their plan out for the public Tuesday night at a town hall.

The town hall is at the Eldorado High School Performing Arts Center from 6 p.m. to 7p.m. Tuesday night. The town hall is open to the public.


KY - Kentucky Supreme Court to consider fairness of child-abuse registry

Original Article

09/03/2012

A Louisville Sunday school teacher for 25 years, “W.B.” was appalled when he found out he might be listed on Kentucky’s Central Registry of substantiated child abusers because of an accusation for which he was never charged, says his lawyer, J. Fox DeMoisey.

W.B. feared that being listed would cost him his teaching post — and worse, his reputation, DeMoisey said. So W.B. skipped the normal appeals process and sued, saying he deserved to have his case heard by a jury.

A Jefferson Circuit Court judge and the Kentucky Court of Appeals ruled against him, saying that while the state should not “stigmatize the innocent,” it has an overriding interest in “keeping child abusers out of the ranks of child-care workers.”

Now, the state Supreme Court has agreed to hear oral arguments Sept. 12 in the case, deciding just how much due process individuals deserve before they are branded as abusers.

Unlike the sex-offender registries that every state makes available on the Internet, child offender lists maintained in Kentucky, Indiana and virtually every other state generally aren’t accessible to the public.

But day care centers, schools and adoption agencies must check with the state to see if a prospective employee is listed, and individuals may ask for that information if, for example, they are hiring a nanny.

A person doesn’t have to be convicted or charged with a crime to be listed. In Kentucky, people are placed on it because a social worker substantiates an allegation of abuse or neglect.

There are 83,917 Kentuckians on the registry, which lists people for at least seven years, according to the Cabinet for Health and Family Services, which maintains the list and ran 41,872 checks last year.

DeMoisey said his client sued using his initials because it would have defeated the lawsuit’s purpose if he were named. DeMoisey said W.B. supervises maintenance and the physical plant at a large health care facility in Louisville.

Ensuring children safety
Nobody disputes the value of child offender registries, which began in the 1960s and 1970s.

James Hmurovich, president of the Chicago-based Prevent Child Abuse America, said they are invaluable in identifying perpetrators, especially those who move from town to town within the same state.

Jill Midkiff, a spokeswoman for the cabinet, said the registry offers the ability to effectively screen applicants for jobs and foster parent openings to “better ensure safety of children.”

But courts in several states have taken issue with the process for adding offenders to the list, and critics, including the American Bar Association, have said some may be unfairly listed.

The ABA’s Washington-based Center on Children and the Law has noted that most people on state registries are there for neglecting, rather than abusing, children, and a disproportionate number are poor, which prevents them from challenging their listing.

The North Carolina Court of Appeals in 2010 ruled that state’s registry unconstitutional because it didn’t give suspected abusers enough opportunity to defend themselves, forcing the state to temporarily stop releasing information about the 8,000 people on its list.

In California, a federal appeals court ruled that state’s system invalid in 2008 because it didn’t provide a way for innocent people to clear their names.

The court said that Craig and Wendy Humphries lived “every parent’s nightmare” after they were exonerated in court of allegations that they abused their daughter but couldn’t get their names off the state’s list of 800,000 people.

Concerns about false listings and fairness have stalled a proposal for a national registry of child abusers, according to a May 2009 report to Congress from the Department for Health and Human Services.

Anonymous complaint
The W.B. case began on Aug. 22, 2008, with an anonymous complaint to the cabinet’s child abuse hotline.

A family that had stayed a few times at W.B.’s house complained that he had molested their daughter, according to DeMoisey and court records.

Louisville police investigated the allegation but never brought charges because of insufficient evidence, DeMoisey said in his Supreme Court brief.

But in December that year, the cabinet notified W.B. that it had substantiated the allegation and that he had a right to appeal.

That didn’t satisfy W.B., DeMoisey said, in part because the hearing would be before a cabinet attorney who might be “more concerned about retaining his job” than being fair-minded.

When W.B. filed suit in circuit court, it stayed his hearing and listing on the registry.

Besides the “high probability of a rubber stamp,” DeMoisey also argues on his client’s behalf that a person’s reputation is so valuable it should only be taken away by a jury. “The two most important things this side of the grave are our reputation and our life,” DeMoisey said in his brief, quoting English cleric Charles Caleb Colton.

Need to know
The cabinet’s lawyer, Erika Saylor, said the hearing process is replete with procedural safeguards, including the right to be represented by an attorney, to present evidence and to cross-examine witnesses. The accused also may appeal the cabinet’s decision to its secretary, then to circuit court.

She also said names in the registry are only available to a “reasonably limited number of people on a need-to-know basis.”

And she noted that that virtually all juvenile matters are determined without a jury.

Terry Brooks, executive director of Kentucky Youth Advocates, said in an interview that he hopes the court upholds the registry process.

There is a potential to be falsely listed and I can understand how somebody would feel aggrieved by it,” he said. “But as a state we need to err on the side of protecting kids, not protecting adults.”
- Wait until you or a loved one gets put on the registry, then I'm sure you will see things differently.