Tuesday, January 15, 2013

PA - Appealing Pennsylvania’s New Megan’s Law

Original Article

This is an excellent article. Click the link above to read the entire thing, and see the video.

12/18/2012

On December 20, 2012, Pennsylvania will begin enforcing its new changes to Megan's Law. By now, many people have realized that they or their friends will be negatively impacted by these laws. For most, it's probably hard to grasp how such laws could be legal. Undoubtedly, many appeals will be filed to challenge these laws. In some states such as Ohio, many of the retroactive provisions have been found to be unconstitutional upon being appealed, and have been reversed. In other states, the high courts have upheld the new laws. The purpose of this article is to educate you all about why these new laws may or may not ultimately be determined to be illegal.

The United States Constitution, as well as the Pennsylvania Constitution, contain clauses that prevent legal consequences from being changed retroactively. Section 17 of the Pennsylvania Constitution reads:

"No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed."

For example, one cannot be arrested today based upon a new law if the actions of that individual were legal during the time the actions were taken. Additionally, if an individual were sentenced to the maximum term of 10 years of imprisonment for a crime in 1999, and in 2002 the maximum sentence for that crime changed to 20 years, the sentence of that individual cannot be changed retroactively to conform to the new law.

However, in order for a retroactive law to violate the ex post facto clause, the legal consequence that is changed retroactively must be "punitive" (i.e., considered to be punishment), as opposed to civil, remedial, or a collateral consequence. Some examples of collateral consequences include loss of the right to vote, enlist in the armed services, or own a firearm. Although it may be hard to imagine, some high courts have ruled that sex offender registration requirements are not punitive, but are instead collateral consequences.

However, in State v. Williams,129 Ohio St.3d 344, 2011-Ohio-3374 (PDF), the Ohio Supreme Court concluded that the requirements of Ohio's new sex offender laws based upon the Adam Walsh Act had transformed the law from remedial to punitive. Their decision was not based upon a single requirement, but instead was based upon the totality of the requirements. The Court cited the various new requirements, and also stated two other factors that influenced their decision: 1) the procedures for registration and classification of sex offenders were placed within Ohio's criminal code, and 2) failure to comply with certain registration requirements subjected an offender to criminal prosecution.


CA - Sex Offenders Win Right To Online Anonymity

Original Article

We do not force ex-identity thieves or ex-hackers to post their personal information online, nor any other criminal, so why should we start with today's modern day scapegoat? If you do it for one group, then everybody, criminal or not, should be forced to not be anonymous online!

01/15/2013

A federal judge has blocked a California bill that would take away sex offenders’ ability to anonymously use email, social media, instant messaging and various other web sites and services. The bill, Proposition 35, was deemed by Judge Thelton Henderson, to be unconstitutional.

Here’s how the State of California summarizes the bill in question:

Increases prison sentences and fines for human trafficking convictions. Requires convicted human traffickers to register as sex offenders. Requires registered sex offenders to disclose Internet activities and identities. Fiscal Impact: Costs of a few million dollars annually to state and local governments for addressing human trafficking offenses. Potential increased annual fine revenue of a similar amount, dedicated primarily for human trafficking victims.

In November, the bill passed with 81% of the vote. The bill, however, was temporarily blocked as the ACLU (along with a couple of sex offenders) got involved and filed suit.

The ACLU said of the bill, “Proposition 35 increases criminal penalties for sex offenses and imposes new restrictions on registered sex offenders. For example, the measure requires that registrants provide online screen names and information about their Internet service providers to law enforcement – even if their convictions are very old and have nothing to do with the Internet or children. This provision essentially eliminates the ability of registrants to engage in anonymous online speech and imposes a substantial burden whenever a registrant wants to use a new online platform to speech, infringing on registrants’ First Amendment right to free speech.”

Similarly, Judge Henderson, who blocked the bill on Friday, said (as quoted by Wired): “The challenged provisions have some nexus with the government’s legitimate purpose of combating online sex offenses and human trafficking, but the government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.”

Bloomberg quotes Henderson as saying, “The court does not lightly take the step of enjoining a state statute, even on a preliminary basis. However, just as the court is mindful that a strong majority of California voters approved Proposition 35 and that the government has a legitimate interest in protecting individuals from online sex offenses and human trafficking, it is equally mindful that anonymity is a shield from the tyranny of the majority, and that plaintiffs enjoy no lesser right to anonymous speech simply because they are unpopular.”

According to Wired, the next phase of the legal process could be a trial on the lawsuit’s merits. Bloomberg quotes a spokesman for California Attorney General Kamala Harris, as saying, “Our office is reviewing the decision.”

Mike Masnick at TechDirt writes of Proposition 35, “There are serious issues with the bill if you don’t know the details. First, many ‘sex offenders’ aren't what you might think of as ‘sex offenders’ — people who are arrested for things like urinating in public, or for consensual sex between minors. Beyond that, this particular bill went really, really far, requiring all such “offenders” to hand over all details of every online service they used — no matter what the purpose.”

Sex offenders’ online rights have always been a hot button issue, and have received a great deal of attention over the past year, particularly. Last year, we wrote about a wave of challenges (especially from the ACLU) to state laws banning sex offenders’ use of social media.

One such law was in Indiana, where a judge ruled that a state ban on convicted sex offenders accessing social media sites at all, is lawful. A similar case took place in Nebraska, where a law banning registered sex offenders from holding social media accounts was thrown out. In Louisiana, a sex offender Facebook ban was deemed “unconstitutionally overbroad.”

Although the act is intended to promote the legitimate and compelling state interest of protecting minors from internet predators, the near total ban on internet access imposed by the act unreasonably restricts many ordinary activities that have become important to everyday life in today’s world,” the judge said of that case.

Still, one Louisiana lawmaker passed a law requiring all registered sex offenders to list their status and crimes on any social network in which they participate.

Clearly this issue is seeing various state responses across the nation.