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Archive for December, 2008

9th Circuit Court: Sex Offender Sentence Illegal

December 30, 2008 Comments off

Sentencing Law and Policy: Ninth Circuit finds 28-year “failure to register” sentence unconstitutional.

The case of Gonzales v. Duncan, No. 06-56523 (9th Cir. Dec. 30, 2008) (available here).

Cecilio Gonzalez was convicted by a jury of failing to update his annual sex offender registration within five working days of his birthday, in violation of California Penal Code § 290(a)(1)(D). Because of his prior criminal convictions, he received a sentence of 28 years to life imprisonment under California’s “Three Strikes” law. On habeas review, we must decide whether his sentence violates the Eighth Amendment’s prohibition against cruel and unusual punishment and, if so, whether the contrary conclusion of the California Court of Appeal constituted an unreasonable application of clearly established federal law.

The California courts have characterized the state’s registration requirement as a regulatory offense, a “most technical violation” that “by itself, pose[s] no danger to society.” People v. Cluff, 105 Cal. Rptr. 2d 80, 81, 86 (Cal. Ct. App. 2001). In a case materially indistinguishable from this one, the California Court of Appeal concluded that a Three Strikes sentence of 25 years to life imprisonment for violating the registration requirement was “grossly disproportionate to the offense” and violated the Eighth Amendment. People v. Carmony, 26 Cal. Rptr. 3d 365, 368-69 (Cal. Ct. App. 2005). Although our standard of review is more deferential, we too conclude that Gonzalez’s sentence is grossly disproportionate to his offense. We further conclude that the California Court of Appeal’s decision affirming Gonzalez’s sentence constitutes an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1). We therefore reverse the district court’s denial of Gonzalez’s petition and remand with instructions to grant the petition for a writ of habeas corpus.

The fact that a federal circuit court has found a non-capital prison sentence unconstitutionally excessive is big new in itself.

Judge: Sex Offender’s No-contact Order Goes Too Far

December 30, 2008 Comments off

Kpvi.com Idaho: Judge: Sex Offender’s No-contact Order Goes Too Far.

BOISE, Idaho (AP) – The Idaho Court of Appeals has overturned a state court order banning a convicted sex offender from being within 100 feet of any minor, including his two young children.

The appellate court ruled last week the no-contact order imposed on Brian C. Cobler went too far, violating his parental rights. The no-contact order included letters, phones and e-mails.

Cobler was arrested in 2006 and convicted of having a three-month sexual relationship with a 17-year-old girl. He was sentenced to serve a minimum of 2 years in prison.

In his decision earlier this month, Idaho Court of Appeals Chief Judge Sergio Gutierrez says denying Cobler his rights as a parent “oversteps the authority of the state.”

GA: Sex Offenders Must Hand Over Online Passwords

December 30, 2008 Comments off

GeorgiaNews- gpbnews.blogspot.com: GA: Sex Offenders Must Hand Over Online Passwords.

A law is set to take effect in Georgia Thursday that requires sex offenders to hand over Internet passwords, screen names and e-mail addresses.

Georgia joins a small band of states complying with guidelines in a 2006 federal law requiring authorities to track Internet addresses of sex offenders. But the state is among the first to take the extra step of forcing its 16,000 offenders to turn in their passwords as well.

A federal judge ruled in September that a similar law in Utah violated the privacy rights of an offender who challenged it. That ruling applied to only one offender who had a military conviction
on sex offenses but was never in Utah’s court or prison system.

No one in Georgia has challenged the law yet. But critics say it threatens the privacy of sex offenders and places an additional burden on law enforcement officials.

Read this bill here (as passed version): http://www.legis.state.ga.us/legis/2007_08/sum/sb474.htm

This means, of course, that the state can now read the private emails of citizens who are supposed to be living legally in freedom after they serve their punishment for a previous crime. It also means that the state can access all of these citizens’ online financial and business activity! This is yet another inane and clearly unconstitutional law which must be defeated !

TX Sex Offender Group Find Ally at Capitol

December 27, 2008 Comments off

Texas Politics blogs.chron.com : Sex offender group find ally at capitol .

Texas Voices, an organization fighting for fair sex offender law reform, has found an ally of sorts at the Texas capitol: a Dallas lawmaker who wants to relax the state’s tough sex offender registration laws.

“Some offenses don’t rise to the level” of needing registration, Rep. Roberto Alonzo, D-Dallas, said recently.

He’s filed a bill, http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=HB190, that would give certain first-time sex offenders the ability to petition the courts to shorter their registration periods, or to have their registration completely waived . The vast majority of sex offenders in Texas must register on the state’s Department of Public Safety website for life.

The bill is being hailed by Mary Sue Molnar, the mother of a convicted sex offender who is one of Texas Voices key organizers. “I have to tip my hat to him,” Molnar said of Alonzo. “It’s a very good start.”
Molnar and her group have spent months meeting with lawmakers in an effort to find someone willing to carry a bill that would roll back some of the state’s toughest sex offender laws.

The group never met with Alonzo. Alonzo said he filed his bill at the request of a Dallas judge who was fed up with low-risk offenders brought in on technical violations tying up the court’s docket.

Texas Voices was founded earlier this year by several registered sex offenders and their family members who were incensed by the state’s lifetime registration laws. The group now has hundreds of members, and tailors its message at those who committed non-violent offenses when they were in their late teens or early 20s with compliant victims a few years younger than themselves. The Houston Chronicle and San Antonio Express-News ran a recent article about the group’s efforts.

TX May Not Comply With AWA

December 23, 2008 Comments off

Dallasnews.com : Crime and Punishment.

An effort to create uniform nationwide standards for how to keep track of sex offenders has stalled largely because states being asked to comply with the new federal guidelines can’t or won’t pay the costs.

After Texas legislators convene in January, they’ll have to decide whether to comply with a new federal law that came without funding, or to stick with existing state statutes. Chances are good the Lone Star State won’t be alone if it fails to meet a July 2009 deadline; so far, not a single state has complied with the Adam Walsh Child Protection and Safety Act.

California officials estimated compliance would cost the state more than $21 million, according to Allison Taylor, executive director of the Texas Council on Sex Offender Treatment. The as-yet-undetermined price tag for Texas could also run into the millions.

If states don’t comply, they’ll lose 10 percent of some federal grant money. In Texas, not complying could cost about $700,000, while complying will cost millions more.
That may make the decision simple, said Sen. Florence Shapiro, R-Plano, long an advocate of strong sex offender laws.

“Seven hundred thousand on the one hand vs. $20 million on the other hand? It’s pretty easy to resolve,” she said. “Our laws are strong, and we don’t need to comply.” The implementation cost may be the biggest obstacle, but it is far from the only one.

She agreed that financing is a “really large issue” but said “there is some hysteria out there, unnecessary hysteria.”

In addition, some states disagree with the federal provisions for registration of juvenile offenders, retroactive registration and rating offender risk levels.

Another sticking point for Ms. Shapiro is how far back the federal law reaches in requiring registration. Texas requires registration for sex offenses dating to the 1970s. But she is troubled by the requirement that an offender who completed his sentence and then reoffends with a nonsex crime could be forced to register.
Finally, Ms. Taylor said the federal requirement that offenders be assigned a risk level based on a conviction instead of an evaluation may be a deal breaker for Texas.

In the last year or so, Texas, like many states, has moved to “dynamic risk assessments” to determine the danger to the public, she said, but “if you are basing registration on risk level to the community, you would not be in compliance.”

The federal government has provided for two one-year extensions, meaning final compliance wouldn’t be required until 2011.

“We want to be tough on crime,” he said, “but we don’t want to be absurd.”

Boy Bids for Law Change

December 22, 2008 Comments off

Wigantoday.net(UK): Boy Bids for Law Change.

The Home Office’s attempts to keep tabs on convicted sex offenders have been dealt a blow at London’s High Court after a human rights challenge by an 11-year-old Wigan boy. Under current legislation, anyone convicted of a sexual offense and sentenced to more than 30 months in prison must remain on the Sex Offenders Register for life. It means they have to notify the authorities of any change of address or name, and any foreign travel they undertake.

But today Lord Justice Latham, sitting with Mr Justice Underhill and Mr Justice Flaux, said the fact there was no mechanism for reviewing such registration under the 2003 Sexual Offences Act was “incompatible” with the European Convention on Human Rights.

The judge asked whether it was right an offender who “can clearly demonstrate that he presents no risk, or measurable risk of re-offending” should be “precluded from obtaining a review of the notification requirements?”

He said: “I find it difficult to see how it could be justifiable under the Human Rights Act to deny a person who believes himself to be in that position an opportunity to seek to establish it.”

He said there will now have to be a debate about what an offender should have to prove in order to be discharged from notification requirements, and when he should be allowed to make an application to the Home Office.

The successful judicial review challenge – in which lawyers argued that the Article 8 right to privacy was being violated and lifetime registration without review was disproportionate – centred around two cases:

The boy was just 11 when he raped another youngster. He was handed a 30-month youth custody sentence at Liverpool Crown Court in October 2005 for two counts of rape and a number of other serious offenses.

The restrictions on foreign travel on the Sex Offenders Register meant the boy was unable to go on a family holiday to Spain last year and there were also concerns that the presence of his name on the Sex Offenders Register would interfere with his ambitions to be a Rugby League player.

Angus Aubrey Thompson, from Newcastle, was jailed for five years in 1996 for two indecent assaults on a girl and other offences of assault occasioning actual bodily harm. He was released on licence in 2000 and has not been in trouble since.

But he has suffered a series of heart attacks and is stricken by arthritis, and believes the stress of being indefinitely on the Sex Offenders Register and continued police involvement in his life has contributed to his ill health.

The High Court ruling that the lack of review provisions in the reporting regime for sex offenders violates the Human Rights Convention will almost certainly force a change in the law.

(Now, if only the United States Justice system can be as intelligent as is the UK London High Court)

Economy Forces Cutting Sex Offender Treatment

December 22, 2008 Comments off

Salt Lake Tribune(Utah) :Economy forces state to scrimp on treatment for young sex offenders.

An expected $3 million shortfall through 2010 means fewer juvenile sex offenders will be evaluated and treated as efforts to build a new center have been scrapped. More kids will be crowded together if a long-term lockup center is closed. And funds will be chopped from a slew of community programs including one that gives police a place to take arrested juveniles if their parents can’t be found right away.
The budget downturn will force them to eliminate $600,000 pegged for the center and restart the process of finding land in a time when the number of young sex offenders is exploding.

In the mid- to late-1990s, an estimated 7 to 10 percent of the juvenile offender population was in for sex crimes. The number has now doubled to 20 percent, Maldonado said, and there are many more offenders among the nearly 10,000 kids taken in annually by the Department of Child and Family Services and the courts. In addition to losing the prospect of an assessment center, Valley Mental Health last year cut contracts providing mentally ill juvenile sex offenders much-needed psychiatric help. Without treatment alternatives, young offenders tend to land in lock-ups more often, he said.

As a clinical social worker, Butters said he once treated a 16-year-old boy who fit a fairly typical mold for young offenders — exposure to pornography in pubescent stages and being slightly socially awkward or bored. The young man has since gone on to graduate from college, is married, has a child and plans to study law so he can help kids in similar situations.

If you treat them, they probably won’t do it again,” Butters said
(Oh, really? I thought the standard myth is that sex offenders cannot be cured .. hmm…)
, citing studies that show treated kids re-offend less than 10 percent of the time. “We want them to get on with their lives rather than put a scarlet letter on their forehead.”

(the scarlet letter is being branded on the foreheads of all sex offenders, not just juveniles)

Treatment for the most common young offenders involves individual and group visits to therapy programs, but one of the major components is simply preoccupying the kids.

Over the next two years, Juvenile Justice plans to eliminate $3.7 million from community programs, ranging from group homes to psychiatric hospital treatment. It will also eliminate $3 million from holding facilities, such as the Decker Lake Detention Center, which could force the department to cram twice as many juveniles into cells. Other proposed cuts include supervision and diversion programs for juveniles.

“We are very concerned about public safety first and foremost,” Maldonado said. “We want to isolate sex offenders, and we spend time and energy in treating all of those kids and affording them opportunities for treatment.”
(isolating sex offenders is the worst thing you can do; studies prove that sex offenders have a higher risk of re-offending when they are isolated from society)

Low funding means only 235 of the nearly 2,000 sex offenders imprisoned in August were receiving treatment as of November.

Sex Offenders and Passports

December 22, 2008 Comments off

This blog posting is being published as information, in response to a frequently-asked question regarding passports:

U.S. Department of Justice : Sex Offender (SORNA) Guidelines
U.S. Department of Justice : FAQ’s
Congressional Research Service (2007): Identification of sex offenders on U.S. passports

Although the Secretary of State is not authorized to identify a passport holder as a sex
offender on their passport, Title I of the Adam Walsh Child Safety and Protection Act of
2006 (42 U.S.C. §§ 16901 et seq.), the Sex Offender Registration and Notification Act
11 (SORNA), established uniform standards and guidelines for state, territorial, and tribal sex
offender registries and mandated the Attorney General to establish a national sex offender
registry, public website, and communitynotification program and to establish guidelines and
regulations to implement these activities. The statute provides for three tiers of sex offenders
depending on the seriousness of the offense of which the person was convicted and includes
certain juvenile offenders and also foreign convictions which were obtained in accordance
with sufficient safeguards for fundamental fairness and due process for the accused.
Community notification must be made bythe appropriate official in each state, territorial or
tribal jurisdiction to law enforcement,school,and housing agencies; any agency responsible
for conducting employment related background checks under § 3 of the National Child
Protection Act of 1993 (42 U.S.C. § 5119a); social service entities responsible for protecting
minors in the child welfare system; volunteer organizations in which contact with minors or
other vulnerable individuals might occur; and anyorganization, company, or individual who
requests such notification pursuant to procedures established by the jurisdiction. The
Attorney General, in consultation with the Secretary of State and the Secretary of Homeland
Security, is required to establish and maintain a system for informing relevant jurisdictions
about persons entering the United States who are required to register under SORNA

SORNA supersedes the former federal sex offender registry and notification law, the
Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act
and related statutes…

Constitutional issues

A range of constitutional issues could arise with regard to the identification of a person
as a sex offender on his/her passport, similar to those which have arisen in the context of sex
offender registries and community notification requirements. During congressional
consideration of the Adam Walsh Child Safety and Protection Act, potential constitutional
concerns were noted as was the state compliance exemption for provisions held by State
Supreme Courts to be inconsistent with State constitutions. The federal sex offender
registration and community notification law has recently been upheld by a few federal district
courts against various challenges on ex post facto, procedural due process, substantive due
process, federalism,anddelegationgrounds. These cases concerned criminal charges under
18 U.S.C. § 2250, added by§ 141(a)(1) of SORNA, brought against sex offenders who failed
to register after moving interstate after the date of enactment of SORNA. The cases dealing
with ex post facto challenges generally follow Smith v. Doe, a U.S. Supreme Court decision
upholding a State sex offender registry, discussed below

One should note that the SORNA penalty for violating the requirement to register or update registry
information after traveling in interstate commerce, i.e., after moving to another state to live,
work, or attend school, also applies to travelingin foreign commerce, although the U.S. laws
cannot mandate registration in a foreign country.

Since passports fall solely within the jurisdiction of the Federal Government, the state case
law or considerations necessary for state registration/notification laws would be irrelevant
to passport guidelines. Although the registry and notification federal case law may be
relevant by analogy to the passport context and may indicate possible constitutional issues,
it is uncertain how the courts may treat legal issues that may arise for a passport
identification.

In addition, there is no fundamental right to a passport; revocation, restriction, or
impingement of a passport does not constitute an infringement of the constitutional right to
travel.

ConstitutionalFights will conduct further research into this topic and we will be submitting application for a U.S. Passport in the name of a registered sex offender to obtain a passport. We will report the results within the next month on this blog.
Update January 2009: Passport was issued to our test subject.

FL Appeals Court Rules SORNA Unconstitutional

December 21, 2008 Comments off

Circuit6.blogspot.com: Florida 6th Circuit Court of Appeals Ruling on SORNA (Sex Offender Registration and Notification Act).

The case is United States v. Edward Myers, No. 08–60064–CR– Zloch (S.D. Fla. Dec. 9, 2008). Judge William Zloch’s Final Order of Dismissal is 82 pages of thorough Commerce Clause analysis. In its conclusion, the court found that “Section 16913 [42 U.S.C. § 16913] transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling case law.” The court goes on, “Section 2250 [18 U.S.C. § 2250] also exceeds that grant of power made to Congress under the Commerce Clause.” The court delves into the Commerce Clause jurisprudence, analyzing the evolution of the case law and application of Lopez, Morrison, Raich, and Scarborough to SORNA. Here are some highlights:

1) “Nothing links the registration of sex offenders with interstate commerce.”
2) Section 16913 does not regulate any activity—rather, it regulates a status, that of being a sex offender.
3) Section 2250 does not criminalize travel for an unlawful purpose, nor does it criminalize failing to register during travel. Jurisdictional element of “interstate travel” is indefinite, requiring only that the person travels/has traveled in interstate commerce at some point. No purpose attached to travel and travel is divorced from the failure to register.
4) Section 2250 is not aimed at travel at all.
5) In dicta, the court does classify Section 2250 as “simply an administrative regulation of persons who are supposed to register under § 16913” and cites Smith v. Doe, which is not the most helpful approach for an Ex Post Facto challenge. This characterization of the SORNA and citation to Smith v. Doe is not a real strike against the opinion though, as many defenders are doing an excellent job meeting these challenges already.
6) The court goes so far as to suggest that Scarborough and the “minimal nexus test” have been called into question by United States v. Jones, 529 U.S. 848 (2000).

The court emphasizes that Congress “has no power to regulate a person simply because at some earlier time he has traveled in interstate commerce.” The opinion is worth a read if you have a SORNA and/or Commerce Clause issue.

sdfla.blogspot.com :

While providing Congress with the power to regulate sex offenders in the manner attempted by SORNA would admittedly aid Congress in its goal to protect the public, it is not among Congress’s enumerated powers. Congress has never been accorded the general police power it has sought to exercise in SORNA. See Lopez, 514 U.S. 596-98 (Thomas, J., concurring); Cohens v. Virginia, 19 U.S. (6 Wheat.) at 426. Cases are legion that note
that the federal government does not have the residual power held by the states. E.g., Lopez, 514 U.S. at 584-602 (Thomas, J., concurring). With statutes like those at issue here, Congress’s desire to aid in the protection of society against sexual predators is understandable and laudable. However, “the powers of the
legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175 (1803). Specifically, the grant of power made under the Commerce Clause is limited. Lopez, 514 U.S. at 552-553 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at
189-95). Therefore, the statutes challenged herein cannot be upheld. Section 16913 transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling case law. Section 2250 also exceeds that grant of power made to Congress under the Commerce Clause. It is in no way a regulation of persons in interstate commerce but an exertion of a general police power through an illusory and impermissible jurisdictional nexus. Thus, the Court declares that § 16913 is unconstitutional in that Congress lacks the power to enact the same under the Commerce Clause. Because an unconstitutional law is no law at all, Defendant Edward Myers shall go hence without day.

Read Judge Zloch’s Ruling here.

Groundbreaking Sex Offender Court Ruling

December 19, 2008 Comments off

Chroniclelive.co.uk (UK) : Sex offender wins groundbreaking court ruling. Dec 19 2008

A Sex offender has won a groundbreaking ruling that his “indefinite” placement on the sex offenders register with no right of review breached his human rights.

The test case of Angus Thompson came before three judges at the High Court in London.

Lord Justice Latham, Mr Justice Underhill and Mr Justice Flaux said the current system denied him the chance to prove in a review he no longer posed a risk of reoffending.

The judges ruled that Thompson was entitled to declarations that the scheme was incompatible with his right to private and family life under the European Convention on Human Rights.

But he added: “I find it difficult to see how it could be justifiable in Article 8 terms to deny a person who believes himself to be in that position an opportunity to seek to establish it.”

Lawyers had argued that Thompson should be entitled to attempt to come off the register and stop having to notify the police of his personal details, including whether he intended to travel abroad.

Pete Weatherby, appearing on behalf of Thompson, argued that he should be entitled to periodic reviews.

Thompson was sentenced in November 1996 to five years in jail on two counts of indecent assault on a female and other offences of actual bodily harm. The court heard he has since been released and he has not been in any more trouble.