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Archive for April, 2010

Visa Petitions Under the Adam Walsh Act

April 23, 2010 Comments off

While this topic is slightly removed from our primary focus, we often hear from readers asking about Visa Petitions and how they are affected by the Adam Walsh Act laws. To be honest, I am unfamiliar with how the immigration visa process works but will try to post some useful links and information below. If any reader would like to submit a clear and concise brief on how the Adam Walsh Act affects Family-Based Visa Petitions, it can be sent to constitutionalfights@yahoo.com.

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This memorandum provides guidance for the initial implementation of the recently enacted Immigration Law Reforms to Prevent Sex Offenders from Abusing Children (Title IV of the Adam Walsh Child Protection and Safety Act of 2006).

On July 27, 2006, President Bush signed into law H.R. 4772, the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”), an Act to protect children from sexual exploitation and violent crime, to prevent child abuse and child pornography, to promote Internet safety, and to honor the memory of Adam Walsh and other child crime victims.

Section 402 of the Adam Walsh Act amends section 204 of the Immigration and Nationality Act (INA) to prohibit U.S. citizens and lawful permanent resident aliens who have been convicted of any “specified offense against a minor” from filing a family-based immigrant petition (including the Form I-130 and the Petition to Classify Orphan, Form I-600A or I-600) on behalf of any beneficiary, unless the Secretary of Homeland Security determines in his sole and unreviewable discretion that the petitioner poses no risk to the beneficiary. Section 402 of the Adam Walsh Act also amends section 101(a)(15) of the INA to remove spouses or fiancés of U.S. citizens convicted of these offenses from eligibility for “K” nonimmigrant status (Form I-129F).

The operative definition of “specified offense against a minor” is contained in section 111(7) of the Adam Walsh Act:

“The term `specified offense against a minor’ means an offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of title 18, United States Code.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.”

A minor is defined as an individual who has not attained the age of 18 years.

The Adam Walsh Act is effective on the date of enactment. It applies to all petitions pending on or after that date. Headquarters is currently reviewing this recently enacted legislation and will provide detailed guidance for implementation. In the interim, the following procedures are implemented effective this date:

If the petitioner’s IBIS check reveals a hit for any sexual or kidnapping offense that is, or potentially may be a “specified offense against a minor” as defined above, the following actions will be taken:
1. A Request for Evidence will be issued for all police arrest records and court disposition documents.
2. The petitioner will be scheduled for fingerprinting in accordance with Center or Field Office procedures. These fingerprints will be processed without fee.
Adjudication of these cases will be suspended pending further guidance, however these petitions may be denied on grounds not related to the above.
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Resources:
2006 USCIS Memorandum (PDF)
Family Based Immigration Forum
VisaJourney Forum
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From an immigration attorney commercial site:
Prohibitions Under the Walsh Act

A petitioner who has been convicted of a specified offense against a minor is not simply prohibited from filing on behalf of a minor child. The petitioner is prohibited from filing on behalf of “any” family-based beneficiary under sections 204(a)(1)(A)(i) and 204(a)(1)(B)(i) of the Act or in accordance with section 101(a)(15)(K) of the Act. “Any beneficiary” includes a spouse, a fiancé(e), a parent, an unmarried child, an unmarried son or daughter over 21 years of age, an orphan, a married son or daughter, a brother or sister, and any derivative beneficiary permitted to apply for an immigrant visa on the basis of his or her relationship to the principal beneficiary of a family-based petition

Section 401 of the Adam Walsh Act amends section 237(a)(2)(A) of the INA by adding a new subparagraph (v). Under new section 237(a)(2)(A)(v), an alien who is convicted under new 18 USC 2250, for failing to register as a sex offender, is subject to removal as a deportable alien.

Approved Family Based Petitions May Be Revoked Under Adam Walsh Act:
If, at any time prior to adjustment of status or consular processing, USCIS becomes aware that the petitioner has a conviction for a specified offense against a minor, it will revoke the approved family-based immigrant visa petition or reopen and reconsider the I-129F.

Further, the approved immigrant visa petitions may be reopened for “good and sufficient cause” under Section 205 of the Act. Revocation of the approval is allowed under 8 CFR 205.2 if the petitioner has been convicted of a specified offense against a minor and USCIS finds that the petitioner poses risk to the beneficiary. Therefore, USCIS conducts additional IBIS checks on the petitioner of the family-based immigrant petition at the time the beneficiary adjusts status. Pursuant to 8 CFR 103.5(a)(5)(ii) USCIS may reopen and reconsider the decision on I-129F if the petitioner has been convicted of a specified offense against a minor and USCIS determines that the petitioner poses any risk to the beneficiary.

What is a “Specified Offense Against a Minor”?

The phrase “specified offense against a minor” in the Adam Walsh Act is defined broadly to take into account that these offenses may be named differently in a wide variety of Federal, State and foreign criminal statutes. The statutory list is not composed of specific statutory violations.

As defined in the relevant criminal statute, for a conviction to be deemed a specified offense against a minor, the essential elements of the crime for which the petitioner was convicted must be substantially similar to an offense defined as such in the Adam Walsh Act. USCIS will issue a Request for Evidence (RFE) for all police arrest records and court disposition documents and schedule the petitioner for fingerprints if the petitioner’s IBIS check reveals a hit for any offense that is or may be a “specified offense against a minor” as defined above.

If there is an IBIS hit or other indication that a lawful permanent resident petitioner may have a conviction for a specified offense against a minor as defined in the Adam Walsh Act, the USCIS will suspend the case adjudication. If the offense meets the definition of an egregious public safety threat, USCIS will refer the case to U.S. Immigration and Customs Enforcement (ICE) for initiation of removal proceedings against petitioner.

If the petition has been approved or is being processed and there is an IBIS hit, USCIS will issue a RFE or Notice of Intent to Revoke (NOIR) and request all police arrest records and court disposition documents. If the petitioner was previously identified as posing risk, USCIS will obtain petitioner’s current rap sheet.

If the petitioner fails to respond to the RFE or NOIR, the petition is denied or revoked accordingly. If the fingerprint results and the evidence submitted in response to an RFE or NOIR indicate that the petitioner was not convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will process the petition in accordance with 8 CFR 204.

If, after review of the fingerprint results and the evidence submitted in response to the RFE or NOIR USCIS is not sure whether the petitioner’s conviction is a specified offense against a minor, or the criminal case against the petitioner is still pending and its disposition is unknown, USCIS will send petitioner’s file for supervisory review and opinion. In some cases, ICE may decide to initiate removal proceedings against any lawful permanent resident who is deportable under section 237(a)(2)(A)(v) of the INA (conviction for having failed to register as a sex offender).

If, after review of the fingerprint results the evidence submitted in response to the RFE or NOIR, USCIS finds that the petitioner has been convicted of a specified offense against a minor as defined by the Adam Walsh Act, USCIS will determine whether the petitioner poses a risk to the beneficiary.

Procedures for Determining whether Petitioner “Poses No Risk” to Beneficiary:

The main purpose of section 402 of the Adam Walsh Act is to ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States. USCIS, therefore, may not approve a family-based petition (I-130 or I-129F) if the petitioner has a conviction for a specified offense against a minor unless USCIS first determines that the petitioner poses no risk to the beneficiary on whose behalf a petition was filed. Under section 402 of the Adam Walsh Act, only the Secretary has this discretion and the “sole and unreviewable” authority to decide whether a petitioner poses any risk to the intended beneficiary. The phrase “poses no risk to the beneficiary” means that the petitioner must pose no risk to the safety or well-being of the principal or derivative beneficiaries.

Evidence of Rehabilitation:

We recommend submission of sufficient evidence of rehabilitation if the petitioner is implicated by the Adam Walsh Act. Petitioner must demonstrate by clear evidence and beyond any reasonable doubt, that he or she poses no risk to the safety and well-being of his or her intended beneficiary. The initially filed petition or response to an RFE or NOIR must include whatever evidence and legal argument the petitioner wants USCIS to consider in making its risk determination. Examples of such evidence include, but are not limited to:

*Certified records indicating successful completion of counseling or rehabilitation programs;
* Certified evaluations conducted by licensed professionals, such as psychiatrists, clinical psychologists, or clinical social workers, which attest to the degree of a petitioner’s rehabilitation or behavior modification;
* Evidence demonstrating intervening good and exemplary service to the community or in the uniformed services;
* Certified copies of police reports and court records relating to the offense (the court records must include the original indictment or other charging document, any superseding charging document, any pre-sentencing report, and the conviction judgment); and
* News accounts and trial transcripts describing the nature and circumstances surrounding the petitioner’s specified offense(s) against a minor and any other criminal, violent, or abusive behavior incidents, arrests, and convictions.

The determination of whether a petitioner’s evidence is credible, and the weight and probative value to be given that evidence, shall be within the sole and unreviewable discretion of USCIS.

Factors USCIS Considers in Adjudication Process:

USCIS considers all known factors that are relevant to determining whether the petitioner poses any risk to the safety and well-being of the beneficiary. Here is the non-exclusive list of the factors:

1. The nature and severity of the petitioner’s specified offense against a minor, including all facts and circumstances underlying the offense;
2. The petitioner’s criminal history;
3. The nature, severity, and mitigating circumstances of any arrests, convictions, or history of alcohol or substance abuse, sexual or child abuse, domestic violence, or other violent or criminal behavior that may pose a risk to the safety or well-being of the principal beneficiary or any derivative beneficiary;
4. The relationship of the petitioner to the principal beneficiary and any derivative beneficiary;
5. The age and, if relevant, the gender of the beneficiary;
6. Whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another; and
7. The degree of rehabilitation or behavior modification that may alleviate any risk posed by the petitioner to the beneficiary, evidenced by the successful completion of appropriate counseling or rehabilitation programs and the significant passage of time between incidence of violent, criminal, or abusive behavior and the submission of the petition.

The USCIS automatically presumes that risk exists in any case where the intended beneficiary is a child, irrespective of the nature and severity of the petitioner’s specified offense and other past criminal acts and irrespective of whether the petitioner and beneficiary will be residing either in the same household or within close proximity to one another.

During the application process our client has clear understanding that the burden is upon him/her to rebut and overcome the presumption of risk by providing credible and persuasive evidence of rehabilitation and any other relevant evidence that proves, beyond any reasonable doubt, that he or she poses no risk to the intended child beneficiary.

In cases where none of the intended beneficiaries are children, USCIS closely examines the petitioner’s specified offense and other past criminal acts to determine whether the petitioner poses any risk to the safety or well-being of the adult beneficiary. It considers past acts of spousal abuse or other acts of violence. The fact that a petitioner’s past criminal acts may have been perpetrated only against children or that the petitioner and beneficiary will not be residing either in the same household or within close proximity to one another may not, in and of themselves, are sufficient to convince USCIS that the petitioner poses no risk to the adult beneficiary.

In case of an adult beneficiary, our client is advised that the burden is upon the petitioner to prove, beyond any reasonable doubt, that he or she poses no risk to the intended adult beneficiary. Therefore, it is important to prepare and present documents in the light most favorable to the petitioner that the petitioner poses no risk to the beneficiary. If no such evidence is presented, USCIS will deny the application.

If the USCIS adjudicating officer is uncertain as to whether the petitioner poses no risk to the beneficiary, or if the adjudicator is finding it difficult to articulate the factual basis for the denial, the office will consult with his/her supervisor and/or USCIS counsel. USCIS cannot approve the petition subject to Adam Walsh Act without guidance from the USCIS’ headquarters.

Denials under Adam Walsh Act:

The denial or revocation of orphan and fiancé cases may be appealed to the Administrative Appeals Office (“AAO”). Section 402 of the Adam Walsh Act does not affect the AAO’s jurisdiction in orphan and fiancé/fiancée cases.

This information is general in nature and is not specific legal advice.

US Supreme Court Denies Kentucky AG Petition

April 23, 2010 Comments off

On October 1, 2009, The Supreme Court of Kentucky ruled that a law limiting where registered sex offenders can live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented. The law prohibits sex offenders from living within 1,000 feet of playgrounds, daycare centers and schools, and changed how the distance is measured.

The court, in a decision dated Oct. 1, said the law is punitive in nature and violates the ex post facto clause in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes.

Kentucky Attorney General Jack Conway
tried to resist this ruling and continued to enforce the law retroactively (and illegally) while he petitioned the United States Supreme Court for further review. His petition was denied by SCOTUS on March 8, 2010.

Case Nos. 2006-SC-000347-CL
Kentucky Attorney General’s Office (502)-696-5342
1024 Capitol Center Drive
Frankfort, KY 40601
jason.moore@ag.ky.gov

NJ Lawmaker Pleads Guilty in Child Porn Case

April 23, 2010 Comments off

usatoday.com: N.J. lawmaker pleads guilty in child porn case.

More hypocrites…

Trenton, N.J. (AP) — A New Jersey lawmaker who championed legislation fighting child pornography pleaded guilty Monday to distributing nude images of underage girls.

Neil Cohen, 59, acknowledged viewing and printing images meant for sexual gratification from a computer in his former legislative office. He left at least one image at a receptionist’s desk, leading to the investigation and charges.

Cohen pleaded guilty to endangering the welfare of a child by distributing child pornography and could be sent to state prison for five years when he is sentenced on July 12.

Under terms of a plea agreement, Cohen will have to register as a sex offender under Megan’s law and be subject to lifetime supervision by the Parole Board when he is released from prison. He agreed never to seek public office again and to pay at least $1,800 in fines. His use of social networking websites also will be restricted. Cohen, an attorney who now lives in Paramus, likely will be disbarred.

Cohen and his lawyers left court without commenting. Prosecutors also declined to comment. Looking gaunt and sporting a full beard, Cohen answered the judge’s questions succinctly in a low, barely audible voice.

“That’s correct, sir,” Cohen said when asked if he intended to plead guilty. Cohen acknowledged being on medications but told the judge the drugs did not impair his judgment.

In exchange for the guilty plea, other charges against the former assemblyman were dropped. Cohen faced up to 30 years in prison if convicted of official misconduct and child pornography charges.

Cohen was accused of using state computers in his Union County legislative office to view, print and duplicate images of underage girls. The staff member who discovered the photos told the two lawmakers who shared the office with Cohen, Sen. Ray Lesniak and Assemblyman Joe Cryan. They reported Cohen to state authorities in July 2008.

Police Officer Sentenced as Sex Offender

April 23, 2010 Comments off

panhandleparade.com: Police Officer Sentenced as Sex Offender.

Walton County, FL. – A former Alabama and Florida law enforcement officer initially arrested several years ago during a “Dateline NBC: To Catch a Predator” sting has been sentenced. Walton County Circuit Judge Kelvin Wells sentenced Todd Monroe Spikes to ten-year’ sex offender probation.

Last month, the 44-year-old pled “no contest” to the charges of lewd and lascivious exhibition with the victim less than 16, and using the computer to seduce and solicit a child. Spikes was one of 21 men who police said had sexually explicit online chats with decoys posing as children. He had several online chats with a police decoy who was posing as a 13-year-old girl. He drove five hours to meet with her at a home in Flagler Beach, just outside of Daytona Beach, Florida. Cameras followed Spikes as he drove around the decoy’s house. He was stopped several blocks away where authorities found several loaded weapons in his SUV. His vehicle also contained rope and a boat anchor.

The charges were eventually transferred to Walton County, because the investigation revealed that he used the computer in Walton County to solicit the acts. At the time of his arrest, Spikes was working as an officer for the Florala Police Department. Prior to that, he had spent time with the Samson, Alabama Police Department, the Geneva, Alabama Police Department, the DeFuniak Springs Police Department, and the Walton County Sheriff’s Office.

Following his sentencing, Spikes came to the Walton County Sheriff’s Office to register as a sex offender.

If this man was not a police officer, his sentence would be much greater than a ten-year probation period.

GA: Revisions to Sex Offender Law

April 23, 2010 Comments off

AtlantaJournalConstitution: Senate passes sex offender bill.

In response to several major court challenges, the Senate passed a bill Wednesday that would make several key changes in the state’s sex offender registration law. The full Senate passed House Bill 571, which would clarify the classification of sexual offenders and re-examine residency restrictions on certain sex offenders. The bill passed 45-0.

“This is an important bill. We were obviously facing a series of legal challenges in federal courts,” said Senate Judiciary Committee Chairman Seth Harp (R-Midland). “We will correct problems that the federal courts identified.”

At issue is the level of a so-called sex crime. In March, for example, the Georgia Supreme Court upheld a provision of the state’s sex offender registry law that requires some people to register as sex offenders even if they have not committed a sex crime.

Jake Rainer tried to get off the list after he was placed on it following a drug robbery. In 2000, an 18-year-old Rainer robbed a 17-year-old girl in Gwinnett County who was going to sell him marijuana. Rainer and three friends picked up the girl, drove her to a cul-de-sac, stole the marijuana and left her there. In getting a false imprisonment charge, Rainer also had to register as a sex offender, meaning that he cannot live or work within 1,000 feet of any place children gather, such as schools, churches and parks.

Georgia has one of the toughest sex-offender laws in the nation, but courts have continued to chip away at it.
Judges, for example, have granted relief for offenders who own homes, who are homeless and who have gotten mandatory life sentences for failing to register a second time.

What is apparently a controversial provision in some camps would allow some low-level sex offenders to come off the registry. Teenagers, for example, who have had sex with younger teens or classmates have also been labeled as sex offenders in some cases. “I think they’re entitled to a shot at convincing the court they’re rehabilitated” and will not be a further danger, House Speaker David Ralston (R-Blue Ridge) said.

Sex Offender Felon Voting Rights

April 22, 2010 Comments off

Are you a sex offender felon or do you know one who thinks he cannot vote? Many do not know that they do still have the right to vote in their states. In Ohio for example, unless incarcerated, any felon has the right to vote. We strongly urge you to vote and be active politically if you have Felon Voting Rights in your state. The trend over the past decade has been to relax such felon voting restrictions, so check with your state to find out if you can vote. We provide the information sources below but you should confirm this information with your state laws.

felonvoting.procon.org: State Felon Voting Laws(Current as of Apr. 08, 2010)

ACLU: Voting Rights for People with Criminal Records: 2008 State Legislative and Policy Changes (This is from 2008 and may have changed)


examples:
superiortelegram.com: Felons can vote in Wisconsin after they have completed their probation or parole.
media.www.oxyweekly.com:This January, in the landmark case Farrakhan vs. Gregoire, the Ninth Circuit Court of Appeals in San Francisco overturned a Washington state law that prohibits convicted felons from voting until they have finished their probation and parole. In this decision, the court ruled that it was unconstitutional for Washington state to disenfranchise felons, because a disproportionate percentage of minorities are prosecuted and convicted of felonies. Therefore, according to the court, the disenfranchisement ordinance violated the right to vote regardless of race outlined in the Fifteenth Amendment.

prospect.org: Ex-felons are routinely disenfranchised due to confusion over state laws. Now, Congress is considering a bill that would restore voting rights to prisoners as soon as they pay their debt to society.

Ohio Supreme Court to Decide if Old Cases Should be Held to New Tougher Rules

April 22, 2010 Comments off

Wednesday April 21, 2010: Ohio Supreme Court Oral Arguments were held today in the case of: Robert Gildersleeve et al. v. State of Ohio -Case number 09-1086 – Cuyahoga County Court of Appeals. (PDF)

Ohio Supreme Court Journal Entry and Opinion. (PDF)

wksu.org: Thousand of new hearings may be ordered for sex offenders -
Ohio Supreme Court to decide if old cases should be held to new, tougher rules.

The Ohio Supreme Court will decide if people convicted before Ohio adopted a tougher sex-offender law are subject to those tougher penalties. It heard arguments today in a case that could affect hundreds of courts, and thousands of offenders and the neighborhoods in which they live.

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Supreme Court case summary:

Does ‘Adam Walsh Act’ Require New Hearing to Exempt Pre-2008 Sex Offender from Community Notification?

When Sentencing Court Found Notification not Required Under Pre-2008 Law

Robert Gildersleeve et al. v. State of Ohio, Case no. 2009-1086
8th District Court of Appeals (Cuyahoga County)

ISSUE: In cases where a defendant was sentenced prior to Jan. 1, 2008, for a sexually related crime, and where the sentencing court determined at a hearing that under the pre-2008 version of Ohio’s sex-offender statute the defendant was not subject to community notification, do amendments to the law that took effect in 2008 require that pre-2008 offenders who have been reclassified as Tier III offenders must undergo a new hearing to reestablish their exemption from community notification?

BACKGROUND: Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender registration and community notification statutes to conform them with the federal Adam Walsh Act (AWA). Under the amended Ohio statutes, thousands of persons who had been classified as lower-level sex offenders under the pre-2008 version of the law were reclassified as Tier III (highest level) sex offenders. The new provisions require that, after Jan. 1, 2008, 1) all Tier III offenders must register with local law enforcement agencies every 90 days for life, and 2) sheriffs must provide regular notices regarding the identity, residence, place of employment and other information about Tier III offenders to neighbors, schools and specified others in the communities where the offender lives and works.

However, a separate provision in the 2008 rewrite of the law, R.C. 2950.11(F)(2), specifically exempts a Tier III offender from the requirement of community notification (but not the duty to register): “if a court finds at a hearing … that the person would not be subject to notification” under the previous version of the sex offender statute (i.e. the version that was in effect from 2002 through 2007).

This case involves a group of nine people, including Robert Gildersleeve, who were convicted and sentenced prior to Jan. 1, 2008 as sex offenders. In each of their cases, the sentencing court held a required hearing and determined that the defendant was not a sexual predator or a high-risk habitual sex offender, and therefore, under the pre-2008 version of the sex offender statute, was subject to registration but was not subject to community notification. Following enactment of the Ohio AWA, each of the plaintiffs received a notice from the attorney general’s office informing him that he had been reclassified as a Tier III sex offender and would from that date forward be subject to both the more stringent registration requirement and the community notification requirement imposed on Tier III offenders by the AWA.

The plaintiffs filed suit in the Cuyahoga County Court of Common Pleas seeking a judgment that 1) retroactive application of the AWA to offenders who had already been classified under the pre-2008 sex offender statute was unconstitutional; and 2) even if retroactive application of the AWA to them was constitutional, they were entitled to relief from community notification under R.C. 2950.11(F)(2) because each of them had already undergone a hearing and been found not to be subject to community notification under the pre-2008 version of the statute. The trial court ruled that retroactive application of the AWA to previously classified sex offenders was constitutional, and also held that the plaintiffs were not entitled to relief from community notification.

Gildersleeve and his co-plaintiffs appealed. On review, the 8th District Court of Appeals affirmed that the AWA was constitutional as applied to the plaintiffs, but held that they were entitled to relief from community notification under R.C. 2950.11(F)(2), because the courts that sentenced them had judicially determined that they were not subject to community notification under the pre-2008 version of the law.

Both parties sought Supreme Court review of the portion of the 8th District’s ruling unfavorable to them. The Court accepted Gildersleeve’s appeal regarding retroactive application of the AWA and held that appeal pending the Court’s ruling in a similar case that has already been argued but not announced (State v. Bodyke). The Court agreed to hear arguments on the state’s claim that R.C. 2950.11(F)(2) does not provide “automatic” relief from community notification for any past offender who was found not subject to community notification under the prior version of the statute at the time of his original classification.

Attorneys for the state argue that R.C. 2950.11(F)(2) exempts an offender from the requirement of community notification under the AWA only if a court has conducted a de novo (new) hearing at which it considers 11 criteria set forth in the 2008 statute, and has made a new and independent finding that the offender would not have been subject to community notification under the pre-2008 version of the sex offender law. They point out that the hearing requirement in R.C. 2950.11(F)(2) is written in the present rather than the past tense, which they say indicates legislative intent that courts considering appeals by pre-2008 offenders should not rely on the court proceedings conducted at the time of that person’s original classification, but rather should conduct a new and independent review of the statutory criteria and make a new determination regarding the offender’s likelihood of reoffending.

Attorneys for Gildersleeve and the other plaintiffs point out that the hearing criteria set forth in R.C. 2950.11(B)(2) are virtually identical to the criteria that were considered in determining at the time of their original classification that they were not subject to community notification under the pre-2008 version of the statute. They argue that in cases involving offenders who were classified under the former statute, “a court” has already conducted a hearing at which the statutory criteria have been considered, and has ruled that the offender was not subject to community control under the pre-2008 law. They assert that interpreting the law to require an entire new hearing at which the same criteria are applied to make exactly the same legal determination would be redundant and wasteful of judicial resources, and also contrary to the doctrine of res judicata (that issues decided by a court and not appealed should not later be relitigated).

CT: To Criminalize Interstate Travel Without Notice

April 21, 2010 Comments off

sexcrimes.typepad.com: CT Bill Would Criminalize Interstate Travel Without Notice.

Connecticut legislators are considering a bill which would make it a crime for any out-of-state sex offender to enter the state without registering within 48 hours. You may read the proposed law here. From the relevant subsection:

Any person who is a registered sexual offender under the laws of any other state who enters this state and fails to notify the Commissioner of Public Safety in writing not less than forty-eight hours prior to entering the state of the information required under this section or falsely reports such information shall be guilty of a class D felony.

It’s likely that this law would raise right to travel issues that have not gained much traction in residency restriction cases.

Sex Offenders Win Appeal Against Indefinite Inclusion on Registry

April 21, 2010 Comments off

guardian.co.uk: Sex offenders win appeal against indefinite inclusion on register – Supreme court backs case of two sex offenders who claim being on register for life without review breaches their human rights.

A UK Supreme Court ruling today has opened the way for hundreds of sex offenders to challenge whether they should remain on the sex offenders’ register for life.

The ruling backed a case brought by two convicted sex offenders who challenged their indefinite inclusion on the register without any right to a review, claiming it breached their human rights.

One, who was convicted of rape when he was 11 years old, argued that being on the register had prevented him taking his family on holiday or playing rugby league. The other offender, Angus Aubrey Thompson, now aged 59, was jailed for five years for indecent assault 14 years ago.

Their lawyers argued they had been labeled for life without any opportunity to demonstrate they had reformed.

The current legislation says that any sex offender sentenced to a prison sentence of at least 30 months is placed on the register for life and has a duty to keep the police informed of any change of address or travel abroad.

The supreme court decision published today follows an appeal by the home secretary against an earlier appeal court ruling that the lack of any review was incompatible with the European convention on human rights, in particular the right to respect for a private and family life.

Lord Phillips, the supreme court president, said: “It is obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offense can be discounted to the extent that continuance of notification requirements is unjustified.”

The judges stressed that the ruling did not mean the sex offenders’ register itself was illegal and said that it was entirely reasonable and lawful to monitor someone for life if they were assessed to be a danger to society.

But the judges rejected the home secretary’s appeal, saying there was no evidence to show it was impossible to identify which sex offenders had reformed. Home Office research submitted during the case showed that 75% of sex offenders who were monitored over a 21-year period were not re-convicted of any offense.

Mike Pemberton, solicitor for F, who was convicted of the rape of a six-year-old boy when he was 11, said his client wanted a fair chance to show that he had reformed.

“This case is important because it considers the right of a child to mature and develop. At present, any child who commits an offense of this type is labeled for life with no consideration being given to the effect of growing older and learning important lessons from previous mistakes.”

He said the men were not arguing to be automatically removed from the register, only for a chance for the risk they now posed to be reviewed.

The supreme court ruling means that an incoming government will need to look again at the law and introduce a review mechanism. Home Office officials will consider the ruling before making any recommendations. The existing requirements on sex offenders to notify the police of their movements remain in force in the meantime.

Jon Husted Bad for Ohio

April 20, 2010 Comments off

We have reported several times on Ohio Senator John /Jon Husted’s unsavory character. Now incredibly, he wants to be Ohio Secretary of State. We thought it only fair that we re-post all the corruption reports of this man’s time in office as he advertises his “Husted for Ohio” campaign.

He has thumped his chest about violating the constitutional rights of 30,000 Ohio citizens, lied about his residency, violated Ohio voting laws, long been under state investigation, refused to serve a full term as Senator, accepted free flights and trips from his lobbyist pals, wants blogs like ConstitutionalFights.org shut down, and more. And now he claims falsely to be a “Tea Party” guy for shameful political advantage.

Jon Husted Is Not Legal Resident in His District
Husted’s Residency Investigation
Husted Residency Ruling
Ohio Representative Jon Husted Investigation
Ohio Senator Jon Husted: Corruption, Fraud, Arrogance
Corruption

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