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Archive for May 4, 2009

United States v. Joseph DeMarce

May 4, 2009 Comments off

04/30/2009 United States v. Joseph DeMarce
U.S. Court of Appeals Case No: 08-2026(PDF)
District of North Dakota – Fargo
[PUBLISHED] [Benton, Author, with Loken, Chief Judge, and Melloy,Circuit Judge]

Criminal case – Criminal law and Sentencing. While the district court erred in finding defendant did not clearly invoke his right to silence, the error was harmless as officers scrupulously honored the right at the time it was invoked; statements defendant made nine days later, after again receiving his rights, were admissible; certain portions of testimony by victim’s mother were inadmissible hearsay; however, the error did not require reversal as the testimony did not influence or had only the slightest influence on the verdict; evidence was sufficient to support conviction for attempted aggravated sexual abuse and attempted sexual abuse of a minor; jury instructions given in the case properly stated the elements of the offense, and defendant was not entitled to instruction requiring the jury to find that he attempted to engage in an anatomically specific act of attempted abuse; Adam Walsh Act did not violate defendant’s equal protection rights, as the penalties associated with the Act serve Congress’s purpose of deterring sex offenders and are rationally related to Congress’s objective of protecting children.

Again, the foolish courts refuse to recognize these sanctions as the “punishments” that they are. Justices; live with these restrictions for the rest of your lives and tell us they are not punishment!

Rulings Affect Sex Offender Registry

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journalgazette.net (Indiana) : Rulings affect sex offender state registry.

A pair of rulings by the Indiana Supreme Court might bring dramatic changes to who is listed on Indiana’s Sex and Violent Offender Registry.

One ruling deals with sex offenders who committed their crimes and were sentenced before the state’s sex offender registry laws existed. The other ruling, involving an Allen County case, deals with whether sex offenders’ listings on the registry are subject to further changes to the registry.

In the first ruling, the state’s highest court overturned Richard P. Wallace’s 2000 conviction for failing to register as a sex offender. Wallace was convicted of Class C felony child molesting in 1989, five years before Indiana passed its version of the Sex Offender Registration Act, known as Zachary’s Law. In 2001, the state legislature amended the law to include all people convicted of certain sex offenses regardless of their conviction date. And in 2003, Wallace’s ex-wife told authorities that Wallace never registered as a sex offender. Wallace was convicted, but he appealed, arguing in part that the changes to the registry violated the state’s Constitution by creating an “after the fact” punishment.

And the state’s high court agreed.

“Wallace was charged, convicted and served the sentence for his crime before the statutes collectively referred to as the Indiana Sex Offender Registration Act were enacted,” Justice Robert D. Rucker wrote.

The changes to the act violated the state’s Constitution by imposing burdens on Wallace that added punishment beyond what could have been imposed when his crime was committed, Rucker wrote.

In the second case, the court upheld a ruling by Allen Superior Court Judge Fran Gull involving Allen County resident Todd Jensen.

Gull had ruled that Jensen must register for life as a sexually violent predator even though the provision in the law that created that designation did not exist when he was convicted.

Jensen qualified as a “sexually violent predator” because of his conviction for vicarious sexual gratification, one of the crimes included under the designation by the state legislature in a 2006 change to the registry law.

He objected to the requirement and asked Gull to consider his case. She ruled he was a sexually violent predator and as such was subject to the changes in the registry. The 2006 changes contained no limitation on the date of conviction, according to court documents.

Jensen appealed, using in part arguments similar to the ones Wallace used, that the requirement created a punishment after the fact. In a split decision, the appellate court agreed and sent the case back to Gull to limit Jensen’s registration requirement to 10 years. But in a 3-2 decision, the state Supreme Court upheld Gull’s ruling that Jensen should have to register as a sexually violent predator for life.

For now, those tasked with monitoring the registry will wait to see what effect the rulings will have on how the registry is handled. But they are sure it will lead to some changes. “It’s going to create a lot of work in the next few weeks because we’ll have to go through each file and see what box these offenders are going to fit into,” said Allen County Cpl. Jeff Shimkus, who handles the registry for Allen County. He will wait to see how the Indiana Department of Correction interprets the ruling and wants to put it into practice. Shimkus also expects a meeting with the Allen County Prosecutor’s Office. The Indiana Department of Correction will comply with the changes, but officials there are still trying to figure out what it all means.

“We don’t know yet how many offenders this will affect,” said Doug Garrison, DOC spokesman. “If it means taking offenders off the registry, then that’s what we’ll do.”

GPS Sex Offender Tracking Illegal

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mercurynews.com : Fresno can’t track paroled sex offenders.

Fresno, Calif.—Police Chief Jerry Dyer says a plan to electronically monitor sex offenders after they leave parole is being dropped because it’s illegal.

SORNA : Limited Effects in NJ

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Sex Offender Registration and Notification: Limited Effects in New Jersey.
(PDF File)
U.S. Department of Justice; Office of Justice Programs; National Institute of Justice.
by Kristen M. Zgoba, Ph.D., and Karen Bachar.

Overview
In 1994, 7-year-old Megan Kanka was raped and murdered by Jesse Timmendequas, a sex offender who had been released after serving a maximum sentence. In response to this event and other sex crimes, community members successfully lobbied for the enactment of a law that requires sex offender registration and notification to the public that a sex offender is living and working in the community. Since the mid-1990s, all 50 states and the District of Columbia have passed similar legislation, collectively referred to as “Megan’s Law.” Underlying these laws is the belief that notifying the public of the presence of sex offenders in their community allows citizens to take protective measures against sex offenders who live nearby.

Researchers for the first time have conducted an independent scientific assessment of the effects of the law in New Jersey. They analyzed data from before and after the law was enacted. The study’s primary goal was to examine the impact of the law on the state as a whole and each county within the state. (See “Limitations of the Study” for what researchers were unable to examine.) Researchers studying the impact of registration and notification laws in other states have found similar results.

Findings

  • Sex offense rates in New Jersey have been on a consistent downward trend since 1985. During this period, rearrests for violent crime (whether sex crimes or not) also decreased. When the researchers examined the decline in each county and then examined the state as a whole, the resulting statistical analysis showed that the greatest rate of decline for sex offending occurred prior to 1994 and the least rate of decline occurred after 1995. Hence the data show that the greatest rate of decline in sex offending occurred prior to the passage and implementation of Megan’s Law.

  • Megan’s Law did not reduce the number of rearrests for sex offenses, nor did it have any demonstrable effect on the time between when sex offenders were released from prison and the time they were rearrested for any new offense, such as a drug, theft or sex offense.

  • The majority of sexual offenders sentenced in New Jersey are convicted of incest and child molestation. In more than half the cases, the victim and offender know each other. Megan’s Law did not have an effect on this pattern: The bulk of offenses and reoffenses committed both before and after the law remained child molestation and incest.

  • Megan’s Law had no demonstrable effect on the number of victims involved in sexual offenses, i.e., the data show no reduction in the numbers of victims.

  • Sexual offenders convicted after Megan’s Law was passed received shorter sentences than those convicted before the law; sentences before Megan’s Law were nearly twice as long as those afterwards. However, fewer sexual offenders have been paroled since the law was passed, due largely to changes in sentencing guidelines. As a result, offenders convicted before and after Megan’s Law serve approximately the same amount of time.

  • Estimates of the cost show that New Jersey spent $555,565 to implement the law in 1995. In 2006, the estimated cost of implementing the law was approximately $3.9 million, based on data received from 15 of New Jersey’s 21 counties.

Sex Offender Wanted to Serve on Task Force

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miamiherald.typepad.com : Sex offender wanted! …. to serve on Broward task force.

Broward County is looking for folks to serve on a task force about sex offender residency rules — including a sex offender. Sex offenders, and other community members, can send a resume to clorber@broward.org or fax to 954-357-6573 for consideration for membership by May 1. So will sex offenders need to create resumes that will include their crimes?

The task force will also include representatives from law enforcement, a homeowner’s group and a mental health professional, among others. The task force’s mission will be to make recommendations to county commissioners about residency restrictions for sex offenders. The rules are so restrictive in Miami-Dade that many are living under a bridge and in Broward they are concentrated in specific neighborhoods.

We urge sex offenders in Broward County to offer to join this task force, and to make a difference, and join in the battle against these laws.

Does the Sex Offender Registry Offend Justice?

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mcgilldaily.com : Does the Sex Offender Registry Offend Justice?

Our society is full of advocates: advocates for the poor, advocates for the homeless, advocates for minorities. But where are the advocates for the sex offenders?

That’s a question that Dustin Shiers, a 20-year-old Saskatoon resident, may be asking himself right now. He was sentenced to a year in prison after downloading and sharing child pornography, and he is now waiting for a decision on whether his name will be added to a registry for sex offenders. Shiers was evaluated by a psychologist and scored very low on various intellectual tests, which is one factor that might convince the judge to leave him off the registry. But I’d like to take a slightly different approach.

Last summer, at a philosophy conference, I attended a lecture on this issue by University of Alabama psychology professor Christopher Robinson. Among other things, he argued that the sex offender registry represents an arbitrary, double punishment of sex criminals and is applicable to too many offenses. For example, depending on the area, “sex offenders” can also include those guilty of streaking, burglary, surveillance, and kidnapping. Also, the fact that we register sex offenders but not, say, murderers, doesn’t make much sense. It might be explained by the strange taboo in society regarding sex, but that doesn’t make it any less irrational.

The issue of whether a certain person should be placed on a sex offender registry or whether such a registry should exist at all is difficult because it involves a unique type of punishment. While we may agree that rapists, who deprive their victims of freedom of choice, merit jail time – also a temporary deprival of freedom – how do we decide whether their names should be put on a list for the public to see?

As I see it, the sex offender registry is both excessive and not particularly useful. Especially in the case of those who have not committed sexual assault but consume child pornography – repulsive as it may be – the label “sex offender” is not an appropriate description; it suggests someone who has committed rape or assault, not someone like Dustin Shiers, who “ha[s] never been aggressive or sexual in any of his personal relationships.” To put him on a list for 20 years is disproportionate to his crime. While it could be argued that he is supporting the industry – keeping child porn sites alive by upping their page views – this link seems too indirect to hold him responsible for the pornography itself. Even if he never visited a single child porn site, the industry would still survive.

On the practical side, his trial and conviction have already been reported in the news. And who actually looks at these lists? (I did for the first time this morning, and found a bunch of shady-looking pictures from a shady-looking town near my home in New Jersey.) In the case of young children, you would hope that parents would not leave them with adults they do not know very well. And in the case of teenagers, it is unlikely that a 15-year-old is going to pull up the National Sex Offender Registry to make sure his cool new 20-year-old friend isn’t into child porn.

A registry for rapists and those who have committed violent crimes may be justified, but I haven’t taken a stand on that issue here. But in the case of other crimes, we should ditch the list – it’s an unwarranted punishment that serves little purpose.

Changing Rules in Middle of Game

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mariettatimes.com (Ohio) : Local sex offenders face tougher reporting rules.

About half of Washington County’s 111 registered sex offenders are waiting on the state’s Supreme Court to decide if tougher reporting requirements enacted last year will stand.

Washington County Public Defender Ray Smith said 50 to 60 local sex offenders challenged the 2008 law, which required all sex offenders to be reclassified under a new three-tier system.

That system mandates longer reporting times and increased community notifications for many offenders once considered low-level. Three local individuals set to fall off the registry this year are now subject to five additional years of reporting because of the change.

“Judge (Susan) Boyer and (Ed) Lane both denied our motions that this should not apply to anyone convicted and sentenced prior to when this went into effect,” Smith said. “The 4th District Court of Appeals also denied our motion. It’s now up to the Supreme Court to decide if this is constitutional or not.

“I can’t see how it can be constitutional. How can you change the rules in the middle of the game?” Smith said.

With the exception of those who have moved away, every person who was ever registered as a sex offender in Washington County remains on the sheriff’s registry.

Prior to the change, Washington County had 20 sexual predators, the most serious offenders under the old system. There are now 42 individuals labeled in the “most serious” tier III category.

Smith said the new system lumps many low-level offenders in with the most serious offenders. The new law would require individuals who had previous reporting requirements for 10 years to report for life.

Under the old law, judges held special hearings and determined the level of restrictions for offenders on an individual basis. Restrictions are now mandated and based on the type of offense.