Archive for October, 2008

Children required to register as sex offenders for life

October 9, 2008 Comments off : Challenge to juvenile sex offender risk prediction.

Did you know that each year, about 10,000 children will have to register as sex offenders for life? That’s part of the Sex Offender Registration and Notification Act, embedded in the Adam Walsh Child Protection and Safety Act passed by the U.S. Congress two years ago.

Under SORNA, these arrested juveniles will be subject to warrantless searches for the rest of their lives, despite the fact that as kids they did not have the same types of due process rights that protect adults in criminal court. SORNA marks a huge departure from past juvenile justice practices, which recognized that children are different, and that most juvenile crime is “adolescent-limited.”

So, here’s some food for thought:

* What if it turns out that this new practice is not just extremely harsh, but paradoxically puts the public at heightened risk by impeding rehabilitation, and consigning kids who would otherwise move on with their lives to the status of permanent social pariahs?

* And what if it turns out that the “scientific” methods the states use to determine which juveniles are at high risk for sexual reoffending are completely worthless?

Well, it looks like both of those things are true.

Prediction tools don’t work:

This month’s Psychology, Public Policy, and Law published an important study showing that the systems in place to determine which juveniles are at high risk for recidivism simply don’t do the job.
The researchers followed high-risk juvenile males for an average of about six years. They rated them on the highly touted Juvenile Sex Offender Assessment Protocol (J-SOAP-II) and the risk protocols developed by three states (Texas, New Jersey, and Wisconsin). Not only did the systems not work, but they were not even consistent with each other!

“This finding suggests that a juvenile’s assessed level of risk may be more dependent on the state he lives in than on his actual recidivism risk,” the authors concluded. And SORNA’s own tiered risk system fared even worse: Juveniles designated as high risk actually recidivated at lower rates than others.

In summary, the researchers concluded that the risk tools that have such important implications for the lives and futures of adolescents are both “nonscientific” and “arbitrary.”

Treatment works:

Although the efficacy of sex offender treatment among adults is contested, among adolescents the study findings were clear: Developmental factors play a big role in adolescent sexual behavior, and risk for reoffense can be reduced through high-quality treatment.

This is consistent with other recent research showing that even the most intractable offenders can be rehabilitated — and at a cost far lower than the cost of punishment. The authors concluded that SORNA as it applies to youth is not only misguided but is likely to do more harm than good:

“The legislation … is based on the assumption that juvenile sex offenders are on a singular trajectory to becoming adult sexual offenders. This assumption is not supported by these results, is inconsistent with the fundamental purpose of the juvenile court, and may actually impeded the rehabilitation of youth.”

Now, consider these facts:

* Most juvenile sex offenders stop offending by early adulthood.

* Among delinquents, just as many non-sex offenders as sex offenders go on to engage in adult sexual offending.

* At least one in five adolescent males commits a sexual assault. (See Abbey, referenced below.)

What do these facts add up to?

The need for widescale prevention efforts, instead of ineffective stigmatization of a few unlucky individuals. (Funding for such efforts has dropped precipitously, probably not coincidentally to the rise of increasingly punitive sanctions; see Koss citation, below.)

Other challenges to SORNA

Meanwhile, other aspects of SORNA face challenges, and a few such challenges are headed for the U.S. Supreme Court. Specifically, legal challenges assert that SORNA exceeds federal rights by encroaching on state and local decision-making.

As summarized in the current issue of the American Bar Association journal, at least two courts have sided with critics and invalidated some or all of the registry law, and in a third case the new law has been put on hold until arguments are heard. (I reported on one of those cases, U.S. v. Waybright, back in August – the blog post with links is here.)

SORNA-style databases are already being extended to domestic violence offenders, and if they are upheld by the U.S. Supreme Court they are likely to extend even further. That is the conclusion of Wayne A. Logan, a law professor at Florida State University and author of the forthcoming book Knowledge as Power: A History of Criminal Registration Laws in America.

So, warn your kids now: Don’t ever get arrested. You may be publicly stigmatized – and perhaps even subject to warrantless searches – for the rest of your life.

For further information:

Caldwell, M.F., Ziemke, M.H., & Vitacco, M.J. (2008). An examination of the Sex Offender Registration and Notification Act as applied to juveniles: Evaluating the ability to predict sexual recidivism. Psychology, Public Policy, and Law, 14 (2). 89-114.

Abbey, A. (2005). Lessons learned and unanswered questions about sexual assault perpetration. Journal of Interpersonal Violence, 20 (1). 39-42.

Koss, M.P. (2005). Empirically enhanced reflections on 20 years of rape research. Journal of Interpersonal Violence, 20 (1). 100-107.

For further information on the juvenile registration requirements of SORNA, see the U.S. Department of Justice’s online fact sheet; this month’s Police Chief magazine also has a summary of SORNA that includes the juvenile provisions (online here). The full text of the Adam Walsh Child Protection and Safety Act is here.

The American Bar Association article, “The National Pulse: Crime Registries Under Fire — Adam Walsh Act mandates sex offender lists, but some say it’s unconstitutional,” is available here.

Most of these points also apply to adult offenders. See source post for hyper- links.

Privacy, Safety Balance at Issue

October 5, 2008 Comments off (Maine): PRIVACY, SAFETY BALANCE AT ISSUE As information on sex offenders becomes more public, state officials are seeking ways to find common ground.

Maine officials sought guidance last week from experts across the United States on keeping society safe while protecting sex offenders’ rights.

“Sex offenders have always lived in our community,” said Detective Bob Shilling of the Seattle Police Department in Washington. (…and always will, by the way)

The difference today is that community notification and Internet posting of convicted sex offenders can increase worry among neighbors and make offenders targets of harassment.

Maine policymakers brought in the Department of Justice’s Center for Sex Offender Management for aid in dealing with snags with its own policies, partly because having sex offenders’ information on the Internet– including those convicted a decade before the registry began — raises their profile and can bring more problems.

In an article in the Winter 2008 “Washburn Law Journal,” Lara Geer Farley framed the challenge for lawmakers: “At a time when national polls indicate that Americans fear sex offenders more than terrorists, legislators will have to show they have the intelligence and courage to create a society that is safe yet still protects the human rights of everyone.”

He noted a tragic parallel between the two states on opposite sides of the country: Washington state, like Maine, has seen two sex offenders shot and killed by men who learned their whereabouts through information posted by authorities on a sex offender Web site.
Over the years, the Washington state notification system has been refined so a committee does a risk assessment of each inmate before release, and the exact address is provided only to police who verify it in person.

Maine state Sen. William Diamond, D-Windham, chairman of the Criminal Justice and Public Safety Committee, described a delicate balance between community safety and sex offender rights. “We need to distinguish the high risk from the low risk within our sex offender registry for the public’s interest in particular,” he said. “Our immediate task is to make a recommendation to the next Legislature on how a tier system can be implemented which includes developing a system for assigning risk levels to each (person) on the sex offender registry.”

“I am convinced we need to have an end-of-sentence review board,” said Rep. Gary Plummer, R-Windham, another committee member.

McCormick said he sees problems arising from Internet posting of sex offense convictions from as far back as 26 years ago, even though the person has lived a law-abiding life since the conviction. “We hear some horror stories,” he said. “They have established their lives and they’re really traumatized. They haven’t reoffended.”

“We are expecting the Maine Supreme Court to rule on one of those cases early next year, which may tell us that our sex offender registry is at least partially unconstitutional,” Diamond said after the conference. “We learned that some other states avoided this problem by not requiring registration during the times before they had a registry.”

Walter McKee, a past president of the Maine Association of Criminal Defense Lawyers, said he would like to see a repeal of the provision that back-dates registerable offenses to include convictions between 1982 and 1992. “They’re the least fair of all,” he said. “I think that repealing the retroactivity would be appropriate and fair.” Going forward, McKee said he wants to trim the list of registerable offenses.

“Take off some of the lower-end offenses that do not have any higher degree of recidivism than any other crime,” he said. “I think everyone agrees that there are a number of sex offenses that we don’t need people to register for.”

Court challenges to the retroactive provisions of Maine’s Sex Offender Registration & Notification Act have counterparts in other states as well.

Ohio officials decided to conform early to the federal Adam Walsh Act and passed enabling legislation that carries retroactive registration requirements.

So far, the Ohio Attorney General’s Office has received more than 4,000 challenges to the state statute, said Erin Rosen, general counsel of the Ohio Law Enforcement Gateway, in the Attorney General’s Office.

Rulings in some of those cases favor the challengers: One found sex-offender residency restrictions punitive and said they violate constitutional protections. The Supreme Court of Ohio has said it will decide the issue.

McKee also objects to Maine complying with the Adam Walsh Act. He said the penalty for noncompliance is an estimated $40,000 loss in federal grant money while the compliance cost is estimated to exceed $1.5 million.

74 Sex Offenders Due To Leave State Registry

October 3, 2008 Comments off

Hartford Courant (Connecticut): 74 Sex Offenders Due To Leave State Registry.

The purpose of the 10-year provision is to recognize that — as disturbing as sexual assaults may be — not all of the people who commit them are threats to public safety, said state Rep. Michael Lawlor, D- East Haven, co-chairman of the legislature’s judiciary committee.

Lawlor cited as an example an 18-year-old who carries on a high school romance with a 15-year-old girl, which is a violation of state law, but they marry and start a family. That man should not be viewed in the same light as other sex offenders, he said.

Under the law, those convicted of a “sexually violent offense” and repeat offenders register for life. An offense classified as a “criminal offense against a victim who is a minor” or a “nonviolent sexual offense” requires a 10-year registration.

Lawlor would like to see the registry pared further. He supports putting only the most dangerous sex offenders on the list, which has doubled in size since 2003.

“There are so many names, it’s hard to decide who’s really dangerous and who’s not,” said Lawlor, who also is an associate professor of criminal justice at the University of New Haven and a former prosecutor.

Attorney Al Mencuccini, who initially represented Daley, said he thinks the 10-year clause makes sense.

“I’m not sure a person should be labeled the rest of their life for something that happened a long time ago,” he said. Being on the sex offender registry, which is easily accessed on the Internet, is like having a scarlet letter, he said. “That’s a brand we don’t even put on people who have murdered someone.”

ME Legislature Considers Adam Walsh Act Changes

October 2, 2008 Comments off : Statehouse Testimony targets sex offenders.

AUGUSTA — Victims of sex crimes and the offenders often live in the same home, where the crimes also occur.
That was part of the message brought by Kurt Bumby, senior manager of the Center for Sex Offender Management, to a committee of legislators wrestling with the problem of how to manage sex offenders and increase public safety. “Being grabbed in an alleyway sometimes happens, but those are the exceptions,” Bumby said. “Strangers tend to be the exception.”

The Committee on Criminal Justice & Public Safety met Monday at the Department of Public Safety offices in Augusta for a briefing on Sex Offender Registration and Notification Act. In the second of three informational meetings, the panel heard from Bumby as well as from officials in four other states where policymakers have grappled with similar issues. “We either reinvent the wheel or take a day and bring in the experts,” Sen. Bill Diamond, D-Windham, said. “This should enhance the effectiveness of what we’re trying to do.”

Diamond, Senate chairman of the committee, said the committee is dealing with three issues:

* legal challenges of Maine’s retroactive registration requirement filed by sex offenders;

* the federal Adam Walsh Act, which is aimed at expanding the national sex offender registry and keeping track of sex offenders no matter which state they live in, while increasing penalties for crimes against children; and

* a tiered system to classify offenders based on offense or risk to reoffend or both.

“We have our hands full,” Diamond said.

Sen. Earle McCormick, R-West Gardiner, said he was looking for information on how the state’s sex offender registry can be more effectively administered. “If we have a three-tier system, how do we figure who are the high risks?” McCormick said.

Bumby told committee members that sex offenses are a small percentage of all crimes committed, but get a disproportionate amount of publicity.

He also said offenders are a diverse group. “Research is clear that sex offenders don’t all look the same, and those variations have important implications for management strategies,” Bumby said. “One-size-fits-all strategies are not likely to get us the results we want.”

“Depending on whom they target, recidivism rates vary,” Bumby said. “Sex offenders are not all alike. Do we want policies to treat them alike? Will that serve the public?”

He recommended concentrating on higher risk offenders to lower the recidivism rate.
“It seems we do better to increase public safety when we focused on higher-risk offenders,” Bumby said.

Bumby also said a federal study showed that longer sentences do not result in much variation in the rate of committing another sexual offense. He also said that despite a sharp increase in restrictions on where convicted sex offenders live, there’s no evidence those restrictions affect the recidivism rate.

Later, Roger Werholtz, secretary of the Kansas Department of Corrections, said the state legislature there imposed a permanent moratorium to prevent municipalities from restricting where sex offenders can live.

Update to Ohio Supreme Court Decision

October 2, 2008 Comments off Supreme Court upholds man’s predator’ status ;
Stricter classification went into effect after his sentencing.

… But since the case was based on Ohio’s former sexual predator statute, the court’s 4-3 ruling is actually less significant because larger challenges to the current offender classification system are looming.
In January, Ohio’s Adam Walsh Act kicked in with a far stricter, three-tier, retroactive sexual offender classification system that requires frequent registering with local police and listing in a public database.

That new system is already being challenged in lower courts across Ohio — with some judges, including one in Cleveland, already having declared it unconstitutional. It is expected to eventually reach the high court.

“If they had decided that the old law was unconstitutional, then that would have had a huge impact on Adam Walsh,” said Amy Borror, from the Ohio public defender’s office, which is challenging the new laws and had awaited Wednesday’s ruling.

In State v. Ferguson, the case decided Wednesday, Andrew J. Ferguson of Cleveland argued that a 2003 amendment to the former sex offender law reclassifying him a predator for life was a form of added punishment.

Writing for the court’s majority, Justice Maureen O’Connor said retroactive classification in this case is not punitive because the General Assembly intended the provision to be a public safety issue.

“It is a remedial, regulatory scheme designed to protect the public rather than to punish the offender,” O’Connor wrote.

She was joined by Chief Justice Thomas Moyer and Justices Robert Cupp and Terrence O’Donnell.

Justice Judith Ann Lanzinger wrote a dissent that was joined by Justices Paul Pfeifer and Evelyn Lundberg Stratton. Lanzinger questioned why the majority did not use the same analysis the court had used in a case earlier this year when it concluded that residency rules for sexual predators were not retroactive.
Even if she were persuaded the old law was retroactive, Lanzinger said, “I cannot accept that the challenged amendments are merely remedial and do not impair vested, substantial rights.”

Justice Lanzinger clearly understands the Constitution, along with Justices Pfeifer and Lundberg. They grasp the concept of expost facto provisons of the United States and Ohio Constitutions. However, Justices O’Connor, Moyer, Cupp and O’Donnell have demonstrated their incompetence, which insists on their immediate removal from the Court.

OH Supreme Court: Upholds Retroactivity

October 1, 2008 Comments off

ColumbusDispatch: Ohio Supreme Court upholds sex offender rules. October 1, 2008 1:45 PM

The Ohio Supreme Court today upheld as constitutional the retroactive application of a 2003 law that tightened reporting and community notification rules on registered sex offenders (Adam Walsh Act).

Applying the law to sex offenders whose crimes predate it doesn’t violate federal and state constitutional prohibitions against “ex post facto,” or retroactive, laws, wrote Justice Maureen O’Connor, who authored the court’s 4-3 majority opinion.

That’s because the law’s provisions are remedial and designed to protect the community, and not punitive and designed to punish the offender, she wrote.

The 2003 law toughened a 1996 law, called “Megan’s Law,” which classified convicted sex offenders and required them to register with their local sheriff.

The Ohio Supreme Court rejected a constitutional challenge in 1998 to the 1996 law. The court ruled then that the law’s requirements could apply retroactively because the law’s intent was to protect the community from future sex crimes rather than impose additional punishment on the offender.

O’Connor used the same standard in upholding the retroactive application of the 2003 law.

The 2003 law toughened “Megan’s Law” by, among other things: requiring lifetime registration for offenders classified as sexual predators; requiring offenders to register not only with their home county sheriff but with the sheriff of the county where they go to school or work; and expanded community notification by allowing photos and other information provided to sheriffs by offenders to be included in a database accessible online.

O’Connor noted that the court already upheld retroactive application of the 1996 law and that that the changes in the 2003 law reflect the same intent to protect the community.

“We determine that the legislative history supports a finding that it is a remedial, regulatory scheme designed to protect the public rather than punish the offender a result reached by many other courts,” she wrote in the majority opinion, which was joined by Chief Justice Thomas J. Moyer and Justices Terrence O’Donnell and Robert R. Cupp.

Justice Judith Ann Lanzinger, joined by Justices Paul E. Pfeifer and Evelyn Lundberg Stratton, wrote a dissenting opinion saying the tighter rules amount to punishment.

In a separate case earlier this year, the court ruled that the 2003 law’s residence restriction prohibiting sex offenders from living within 1,000 feet of a school could not apply retroactively because there was a lack of clear legislative intent. Nothing in the law stated that the residence restrictions could apply retroactively, the court ruled.

This is the manner by which courts will take away our rights. They re-define terms, like “punishment” in order to justify unconstitutional laws. They simply refuse to acknowledge the fact that these laws impose restrictions and punishments on citizens who committed crimes up to decades ago. Just three justices were able to understand the obvious fact that these laws impose punishment. We must fight them to forcefully take back our rights !