Archive for January 12, 2009

Revamping Juvenile Sex Offender Law

January 12, 2009 Comments off South Dakota: Court’s ruling leads to revamping juvenile sex offender law.

SPEARFISH – The 2009 South Dakota Legislature will be asked to change the state’s juvenile sex offender laws because of a November ruling by the South Dakota Supreme Court. The court said in a Nov. 5 decision that the current system for registering juvenile sex offenders is unconstitutional and violates the equal protection clause. The boy, who was ordered to register as a sex offender for the rest of his life. Reindl said she appealed that ruling because it is out of line with adult sex offender laws.

Adult offenders, through suspended imposition of sentence or by petitioning the circuit court, can have the registration requirement lifted. (apparently in South Dakota, this is possible; In most states, it is not).
The statute that required the sex offender registration for juveniles did not offer an “out” of the lifetime registration requirement, Reindl said.

The Supreme Court’s ruling has had a significant effect on the state’s juvenile sex offender system, according to South Dakota Attorney General Larry Long.

Reindl said there are going to be other issues related to subsequent convictions of people for failing to register although they should not have been on the list at all. “The ripple effects are bigger than any of us contemplate right now,” she said.

Reindl said her motivation for pursuing the case to the Supreme Court was in the interest of her client, who would have been branded for life, although adults have a way to get off the sex offender registry.

Reindl blamed far-reaching 2006 federal guidelines for putting pressure on states for lifetime sex offender laws. “I feel the federal legislation, which includes the Jacob Wetterling Act and the Adam Walsh Act, has pressured states into drafting laws for lifetime sex offender registration. The new acts do not match up with existing laws in South Dakota, which were drafted in 1997.”

She said these laws can make people feel secure, but sex offender registration laws do not protect the public from convicted violent criminals who aren’t required to register.

“The Adam Walsh Act is far-reaching and broad, but does it really protect children from legitimate offenders who are a risk? A protective net could be a tool in this cause, but it’s not a perfect solution,” she said.

Driving Sex Offenders Underground

January 12, 2009 Comments off (NY): Lawmakers send sexual offender residency law back to committee.

KINGSTON – Passions ran high over a proposed local law that would set restrictions on where high-risk sex offenders could live. The law would “… prohibit sex offenders from residing, having employment or otherwise enter or remain within one thousand feet of areas and facilities that would provide them easy access to potential victims.” That would include schools, daycares, playgrounds and public pools, among other places.

Ulster County Legislature Criminal Justice and Safety Committee Chairman Frank Dart cautioned against acting in haste: “Would you rather have a sex offender that you know is living next door to you, or, have a sex offender and drive him under ground, and you don’t know if he is living behind a plaza, in the woods, and you don’t know where he is?”
“This could endanger the public, if we act too fast,” ”warned Democrat Brian Shapiro.

In the end, the Democrats prevailed. The proposed local law goes back to committee.

Bail Conditions of AWA Unconstitutional

January 12, 2009 Comments off SDNY Magistrate Finds Non-Discretionary Adam Walsh Act Bail Conditions Unconstitutional in Child Pornography Possession Case. U.S. District Court • Southern District of New York

In United States v. Arzberger, 08 cr. 894 (AKH/JCF), 2008 WL 5453739 (S.D.N.Y. December 31, 2008), the defendant, who faced charges of receipt and possession of child pornography, opposed the government’s motion to modify the terms of his bail by adding certain non-discretionary conditions set forth in the Adam Walsh Amendments to the Bail Reform Act, including a curfew, electronic monitoring, a direction to avoid contact with any potential witnesses and prohibition from any dangerous weapon. Arzberger challenged the provisions as unconstitutional under the Fifth and Eighth Amendments, both facially and as applied, and that they violated the Separation of Powers Doctrine.

In a lengthy decision, Magistrate Judge Francis first reviewed the sparse precedents on the issue (three of the four of which had found the Amendments unconstitutional), and then analyzed each proposed condition separately under the Due Process clause. He concludes: “The Adam Walsh Amendments are unconstitutional on their face to the extent that they would impose conditions that infringe protected liberty interests without providing the accused with an individualized assessment of the need for such conditions.” The court rejected the defendant’s facial challenge under the Eighth Amendment, held the as-applied challenge under the Eighth Amendment was premature, and also held that the Adam Walsh Amendments do not violate the Separation of Powers Doctrine.

It is heartening to see reason prevail in an area of the criminal law that one Sixth Circuit judge wrote in a dissenting opinion is approaching the hysteria of the Salem Witch trials. In United States v. Paull, No.07-3482 (6th Cir. January 9, 2009), as highlighted on Professor’s Berman’s website here, Judge Merritt filed an opinion that dissents from the court’s decision to affirm a 17.5 year sentence in a child pornography possession case. Judge Merritt begins:

As a recent October 23, 2008, Wall Street Journal article by Amir Efrati points out, our federal legal system has lost its bearings on the subject of computer-based child pornography. Our “social revulsion” against these “misfits” downloading these images is perhaps somewhat more rational than the thousands of witchcraft trials and burnings conducted in Europe and here from the Thirteenth to the Eighteenth Centuries, but it borders on the same thing. In 2008 alone the Department of Justice has brought 2,200 cases like this one in the federal courts.

(Note: it should be noted that the opinion of this magistrate was a dissenting opinion in this case but is important none-the-less)