Archive for October 30, 2008

OH: Franklin County Judge Rules Against Adam Walsh Act

October 30, 2008 Comments off

Columbus Dispatch ( Columbus OH) : Franklin County Judge Rules Parts of Adam Walsh Act Unconstitutional.

“I anticipate that one or both of the parties in the case will appeal,” Judge Schneider said. “It won’t rest until the Court of Appeals and ultimately the Supreme Court rules on this decision. So, I encourage them to appeal. Only the Supreme Court can render the ultimate decision.”

Under the Adam Walsh Act, which took effect Jan. 1, 2008 in Ohio, Plaintiff Toles was reclassified as a Tier III offender, requiring him to register quarterly for the rest of his life. He also became subject to community notification, under which the sheriff is required to notify his neighbors and others in the community of his residence.

Schneider ruled that Toles, 38, is not subject to community notification because a hearing at the time of his conviction determined he was not a sexual predator.

The judge also ruled that much of the information required on the registration form under the new law posed an unreasonable burden in Toles’ case, such as license-plate numbers of vehicles available to him, where those vehicles are usually kept, telephone numbers he uses, and “any other information required by (the state Bureau of Criminal Identification and Investigation) without limitation.”

“How does anyone know what telephone numbers he might use?” Schneider wrote. “Most troubling is the open invitation to BCI to add additional requirements without limitation.

Although Schneider’s ruling applies only to Toles, Skendelas expects it to be “persuasive” when other Franklin County judges consider similar cases. The county public defender’s office is handling more than 500 challenges to the law, he said.
Read this court decision here, or here.


Court of Common Pleas, Franklin County Ohio, Judge Schneider (9 Sept 2008):

The issue before the court was the plaintiff’s requirement to register to satisfy the requirements of the new Adam Walsh Act law (Senate Bill 10), and the County Sheriff’s obligation of community notification.

The challenge was based on the constitutional violation of the law with respect to The Ohio Constitution, which prohibits any law from being passed retrospectively (or retro-actively) This prohibition is also included in the Ex Post Facto Clause of the United States Constitution. (see related case State of Ohio v. Cook 1998 )

Judge Schneider found that the law was applied retrospectively but he failed to recognize that the new requirements of reporting were substantive (i.e. punishment, burdensome). This is a failure that has been seen in other courts. Judges are unable to understand the burdensome nature of the new law’s reporting requirements.

Judge Schneider did however recognize as burdensome, some of the requirements of the new law which would require reporting of previously-not required information (travel documents, social security number, license plate of vehicles owned or used by offender, where vehicles are parked, photographs of such vehicles, professional licenses or permits, email addresses, telephone numbers, internet identifiers, and “any other information required by BCI (Bureau of Criminal Identification and Investigation) without limitation”).

Furthermore, the Judge wrote that the change in classification imposes burden to the offender in restricting their ability to move without stigma and burden. Judge Schneider writes “This court concludes that these requirements constitute a new affirmative disability or restraint”.

The Court finds that “the new registration requirements go way beyond the limits of the requirements considered by the Ohio v. Cook court. Pursuant to the Adam Walsh Act, the new registration requirements are much more detailed , much more burdensome and much less narrowly tailored and apply to all classifications of sex offenders. In fact, it is impossible for this Court of anyone else to determine exactly what the requirements are because the statute authorizes “any other information required by the bureau of criminal identification and investigation”.

Judge Schneider concludes: “Based on the foregoing, the Court finds that the additional registration requirements beyond frequency and duration … are clearly punitive in their effect and therefore violate the Ex Post Facto Clause of the U.S. Constitution.”

Regarding re-classification, the Court holds “that if a previously convicted sex offender had the benefit of a hearing pursuant to R.C. 2950.09 and was found by a court not to be a sexual predator, the community notification provisions of R.C. 2950.11 do not apply.” Judge Schneider continued in writing that “an offender who has been adjudged as not being a sexual predator has an expectation that he could make decisions based on that finding.”

Georgia Court Rules Sex Offender Law Unconstitutional

October 30, 2008 Comments off

Atlanta Journal-Constitution : Court: Sex offender law unfair to homeless. : Georgia Supreme Court rules sex offender law unconstitutional.
Jurist Legal News( :Georgia high court declares sex offender laws unconstitutional for homeless.

The Georgia Supreme Court on Monday declared unconstitutional a provision of the sex-offender registry law that was criticized for making homelessness a crime.

The state registry law, one of the toughest in the nation, made it a crime if a sex offender were homeless and could not register a specific street or route address at the local sheriff’s office.

In a 6-1 decision, the state Supreme Court said the law provides no direction for homeless sex offenders who have no street or route address. This makes them have to guess as to how they can comply with the law’s reporting provisions, the decision said. This lack of direction “leads to arbitrary and discriminatory enforcement,” said the opinion, written by Justice Hugh Thompson. The registration requirements are “unconstitutionally vague,” the court found. Justice George Carley issued the lone dissent.

The ruling was a huge legal victory for William James Santos, charged in Hall County for failing to register a new address in the sex-offender registry. Because this would have been his second failure-to-register offense, he faced a mandatory life sentence. The law requires an offender to report his or her address within 72 hours after being released from custody or moving to a new address.

Santos had lived at the Good News at Noon homeless shelter in Gainesville and, during that time, correctly gave the shelter’s address on the registry. But in July 2006, he was forced to leave. Over the next three months Santos was homeless and could not give an address or comply with the statute. In October 2006, Santos was arrested and indicted for failing to register. In jail for more than a year awaiting trial, Santos should soon be freed, said his lawyer, Hall County public defender Adam Levin.

“The court recognized that fairness is important for everybody, even the unpopular people in society,” Levin said. He added that even though the address requirement is no longer constitutional, he will encourage Santos to let local law enforcement know where he is living.

“This law was so poorly drafted it was contrary to public safety,” Weber said. “It was putting homeless persons in a situation where, if they said, ‘Hey, I’m homeless,’ they’d go to jail. It encouraged them not to report their addresses, which means no one would know where they lived.”

Halloween Sex Offender Law Tossed

October 30, 2008 Comments off

AP: Rules limiting sex offenders on Halloween blocked (St. Louis): Halloween Sex Offender Law Tossed.

ST. LOUIS (AP) — A federal judge has ruled that parts of Missouri’s new law restricting registered sex offenders’ actions on Halloween night are unenforceable, saying the law lacked clarity and could cause confusion for sex offenders and those charged with enforcing it.

The law, signed by Gov. Matt Blunt in June, requires that sex offenders avoid all Halloween-related contact with children from 5 p.m. to 10:30 p.m. on Oct. 31. It requires them to remain inside their homes with the outside lights off and to post a sign saying they have no candy. A violation is a misdemeanor, punishable by up to a year in jail.

After hearing arguments in a case brought by four sex offenders, U.S. District Judge Carol Jackson on Monday granted a preliminary injunction barring enforcement of some parts of the law.

Jackson found no fault with the provision requiring sex offenders to keep their porch lights off. She agreed there was no lack of clarity in the requirement for a sign that reads, “No candy or treats at this residence.”
But other aspects of the statute were too broad and raise questions, the judge said.

For example, Jackson said, may a sex offender have contact with his or her own children on Halloween? Passing out candy is clearly prohibited, but what else constitutes Halloween-related contact? And if a sex offender planned to be out of town on Halloween, he or she would not technically be “inside the home” as the law requires, Jackson pointed out. The law allows sex offenders to leave home on Halloween night if there is “just cause” such as work or an emergency, but Jackson criticized the measure for failing to define the term more clearly. Such vagueness would cause confusion among sex offenders, police and prosecutors, she said.

The judge cited a letter sent by the Cape Girardeau County Sheriff’s Department to registered sex offenders in the southeast Missouri county. She said the letter’s reference to the “Halloween season” could have police trying to enforce the law on days other than Oct. 31.

The injunction stemmed from a lawsuit brought by the American Civil Liberties Union of Eastern Missouri. Attorney Dave Nelson called the law’s requirements a “scarlet letter” for sex offenders. He said the statute also results in additional punishment by requiring what amounts to “house arrest” one day each year.

Anthony Rothert, the legal director of the ACLU of Eastern Missouri, said the order was not limited to the four plaintiffs. But to his understanding, the ruling means that sex offenders in Pike, Cape Girardeau and St. Louis counties — where the plaintiffs live — can spend time with their children on Halloween night and do not have to stay inside their homes. Rothert said the order applies only to this Halloween but that the ACLU will continue working to get the entire statute off the books.

It is part of a nationwide law enforcement trend targeting sex-offense suspects or registered sex offenders on Halloween and more severely restricting their activities that night. (This is UnConstitutional)