Archive for February 6, 2009

Federal Report : Megan’s Law Doesn’t Work

February 6, 2009 Comments off

AP News / : Report: Megan’s Law not a Deterrent.

A new federally funded study examining sex offenses in the state where Megan’s Law was created concluded that the law hasn’t deterred repeat offenses.

The report released Thursday found that registering sex offenders in New Jersey makes it easier to find them when they are accused of crimes, but does little to alter the types of sex crimes committed or the number of victims. The study also suggests the costs associated with the laws may not be justified.

The study estimated the cost of implementing Megan’s Law in New Jersey at around $555,000 in 1995. By 2007, the annual costs of maintaining the programs totaled around $4 million.

New Jersey was among the first states to enact laws requiring community notification and sex offender registration. The laws, now in all 50 states, are named for Megan Kanka, a 7-year-old New Jersey girl who was raped and killed in 1994 by a twice-convicted sex offender who lived near her home.

Megan’s Law requires law enforcement agencies to notify the public about convicted sex offenders living in their communities.

When the most dangerous sex offenders move to a neighborhood, police go door to door to personally notify citizens and past victims. Those considered to have a lower risk of re-offending are listed on an Internet registry available to the public. The lowest risk offenders must register but aren’t subject to notification laws.

But Kristen Zgoba, one of the lead authors of the report and a research supervisor for the state Corrections Department, said that increased awareness alone doesn’t result in safer communities.

The report is among only a few to use hard data to evaluate the effect of the laws on the crime rate. Recent studies in New York and Arkansas have come to similar conclusions. Other previous studies, however, have used mostly anecdotal evidence to support use of Megan’s Laws.

The New Jersey study was conducted by the state Department of Corrections with help from Rutgers University. It was funded by the National Institute of Justice.

Some studies suggest that notification laws are counterproductive. A 1999 study noted that the fear of exposure may cause offenders to avoid treatment, and may encourage pedophiles to seek out children as a result of adult isolation.

Court Ruling: Guns and Adam Walsh Act

February 6, 2009 Comments off : Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional.

I blogged about this issue three weeks ago. Under 18 U.S.C. § 3142(c)(1)(B), someone who is charged with possessing child pornography — among other crimes — and is freed on bail must be ordered not to possess any firearm. In late December, U.S. v. Arzberger (S.D.N.Y.) concluded that this violated the Due Process Clause, largely because the right to bear arms is protected under the Second Amendment.A few weeks later I found another opinion, U.S. v. Kennedy (W.D. Wash.) (Donohue, M.J.), which holds the same thing (it was decided earlier than Arzberger, but placed online later). Here’s the magistrate judge’s reasoning, which the district judge (Richard A. Jones) approved without further analysis (paragraph break added):

Pretrial Services recommends that Defendant be prohibited from possessing a firearm, which is a mandatory condition under the Walsh Act. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment created an individual right to possess firearms. In footnote 27, Justice Scalia noted that a law regulating a specific, enumerated right such as the right to keep and bear arms was subject to more than a rational basis level of scrutiny.

If the government’s position in this case is sustained, this constitutional right would be taken away not because of a conviction, but merely because a person was charged. This right would be lost notwithstanding a lack of showing that Defendant is a potentially violent individual, or that he even owns firearms. Certainly no particularized need has been established in this case that the Defendant should prohibited from possessing a firearm. As such, they will restrict his freedom to such a substantial degree that they do nonetheless implicate a protected liberty interest, which may not be revoked without according Defendant procedural due process; specifically, an individualized determination as to whether the onerous mandatory conditions are needed to assure the Defendant’s future appearance or to avoid a danger to the community. No such determination has occurred here.

Note that the magistrate’s decision had a substantive effect, beyond just requiring the government to provide more evidence; the government apparently couldn’t provide the evidence, so the defendant was released without the firearms restriction.

By the way, here is the government’s argument for imposing the firearms restriction, and for reversing the magistrate’s ruling:

[T]here is no indication that the restriction on firearms will impose any burden on Defendant whatsoever, as Defendant has not contended that he has any need to possess or have access to firearms. Moreover, this condition will help ensure the safety of the community by restricting Defendant’s ability to harm himself or others by using a firearm….

[C]riminal defendants, such as Defendant, who have been charged with a violent crime simply do not have a “fundamental right” to possess or have access to firearms. Accordingly, the condition precluding possession of firearms for the relatively brief time pending trial does not affect a fundamental liberty interest.

There’s no explanation for why simply being charged takes away a defendant’s Second Amendment rights. (Note also that Kennedy’s crime — possession of child pornography — is not a “violent crime” under any normal understanding of the term, though it is a serious crime.) I also put up Kennedy’s response to the motion, though it focuses on other matters.

Related Posts (on one page):

  1. Another Case Holding a Gun Control Provision of the Adam Walsh Act Unconstitutional:
  2. The First (?) Post-Heller Case Holding a Gun Control Law Unconstitutional:

United States v. Comstock

February 6, 2009 Comments off

National Institute of Corrections : United States v. Comstock

* U.S. Court of Appeals (4th Circuit)
The Fourth Circuit unanimously affirmed the district court’s decision that 18 U.S.C. 4248 of the Adam Walsh Act is unconstitutional. The federal government does not have the authority to enact U.S.C. 4248 which concerns the civil commitment of sex offenders following their incarceration. Accession Number: 023536 View PDF file of decision