Archive for September, 2009

SCOTUS to Hear SORNA Commerce Clause Case

September 30, 2009 Comments off

Sentencing Law & Policy : SCOTUS cert grants.
Google/AP : Court asked if old offenses can get new penalties.

Docket: 08-1301 Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

The Supreme Court will decide whether sex offenders who didn’t register with state officials before harsher punishments went into effect can still be sentenced to extra time in prison. (with regard to Interstate Commerce)

The high court on Wednesday agreed to hear an appeal from Thomas Carr, who pleaded guilty to sexual abuse in Alabama. When released from prison in 2004, he moved to Indiana but didn’t register with that state’s sexual offender database.

The Sex Offender Registration and Notification Act, which increased penalties for not registering, was not passed until 2006. But when Carr was arrested in 2007, he was charged using that law and sentenced to 37 months in prison. Carr appealed, saying prosecutors should not have used a law that wasn’t in existence when he committed his crime.

But the 7th Circuit Court of Appeals in Chicago said that when the law was passed, Congress did not say it did not apply retroactively.

Other courts have said that the law — SORNA — cannot be applied retroactively, and Carr wants the high court to resolve the conflict.

Federalism Challenges to the Adam Walsh Act

September 30, 2009 Comments off

Social Science Research Network : Federalism Challenges to the Adam Walsh Act.
by Robin Morse

Boston University Law Review, Forthcoming

This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders. Part I provides background information on the Adam Walsh Act and these two provisions. Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause. This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue. Part III argues that neither provision is justified independently by the Commerce Clause. Finally, Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws. This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision. Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes. This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses. Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down. The Note concludes by suggesting how the provisions might be revised to pass constitutional muster.

WA Appeals Court : Man Relieved of Registration

September 30, 2009 Comments off

Court of Appeals Division III – State of Washington
Opinion Information Sheet (readers are urged to read this entire important opinion)
PDF version here.

Docket Number: 27475-6 – Title of Case: State of Washington v. Brian A. McMillan
File Date: 09/17/2009

Excerpts of Opinion:
Brown, J. – The trial court, exercising its fact-finding discretion, relieved sex offender, Brian A. McMillan, of his duty to register. The State appeals, contending Mr. McMillan failed to show by clear and convincing evidence that continued registration no longer served the purpose of the registration statutes. Finding no error, we affirm.

On September 9, 2008, the trial court relieved Mr. McMillan of his duty to register, finding he had been in the community for over 10 years without being convicted of any new offenses and his likelihood to reoffend was low. The court partly relied on the declaration of Dr. Clark Ashworth, a clinical psychologist. Dr. Ashworth opined that Mr. McMillan did not pose “any significant risk of sexual re-offending.” Clerk’s Papers (CP) at 100. In his oral ruling, the judge discussed the registration statute, set forth the factors in deciding whether to relieve an offender’s registration requirement, and commented on the factors. The judge did not make a written finding that the purpose of the registration statutes would no longer be met if Mr. McMillan was required to continue to register. The State appealed.

Mr. McMillan complied with all SSOSA requirements. Over the last 10 years, Mr. McMillan has complied with probation, community supervision, community custody and worked with Dr. Ashworth, who opined that Mr. McMillan was at a low risk to reoffend. The judge stated, “as a matter of policy . . . . if I don’t grant it in this situation, a petition to drop the registration requirement, then when do I? In other words, if you don’t reward a probationer for having successfully done something ordered by the court, then the whole process becomes illusory.” RP at 11.

In sum, the trial court exercised its fact-finding discretion in deciding the evidence rose to the clear and convincing standard. In other words, Mr. McMillan proved to the trial court by clear and convincing evidence that the purpose of the registration statutes was no longer being met by continuing to require him to register.

This is an important court ruling because it sets precedent for those on registries across the nation to petition the court for relief of registration requirements. Any person who is appealing their cases to State Appeals Courts, should consider including this argument in their appeals. See “How to file Court of Appeals Brief”. Any legal professionals who read this blog are asked for their input on this matter.

Nov. Oral Arguments in Ohio Supreme Court

September 30, 2009 Comments off

Related to Ohio’s Senate Bill 10 / Adam Walsh Act/ Sex Offender Registration and Notification Act,
the following four consolidated cases will be heard before the Ohio Supreme Court on Wed, Nov 4, 2009, according to the Ohio Supreme Court Calendar:

Wednesday Nov. 4, 2009, 9 a.m. :

Case Number

Roman Chojnacki v. Marc Dann, Ohio Atty. General [Richard Cordray], in his
Official Capacity – Warren County
Certified conflict: “Whether a decision denying a request for appointment of counsel in a reclassification hearing held pursuant to Ohio’s version of the Adam Walsh Act, Senate Bill 10, is a final appealable order.”

On March 23, 2009, the Court ordered the parties to brief the following issues:

  • Whether sex offender reclassification hearings conducted pursuant to the provision of Am.Sub.S.B. 10 are criminal or civil proceedings.
  • Whether sex offenders are entitled to the appointment of counsel for Am.Sub.S.B. 10 reclassification hearings if those proceedings are civil in nature.

In the Matter of: Darian J. Smith, Alleged Delinquent Child – Allen County

PropLaw I: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Ex Post Facto Clause of the United States Constitution.

PropLaw II: The application of SB 10 to persons who committed their offenses prior to the enactment of SB 10 violates the Retroactivity Clause of the Ohio Constitution.

PropLaw III: The application of SB 10 violates the United States Constitution’s prohibitions against cruel and unusual punishments.

PropLaw IV: A juvenile court has no authority to classify a juvenile, adjudicated delinquent for a sex offense, as a juvenile sex offender registrant when the statutory provisions governing such a hearing were repealed at the time the hearing was conducted.

State of Ohio v. Christian N. Bodyke, David A. Schwab [and] Gerald E.
Phillips – Huron County
PropLaw I: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Ex Post Facto Clause of the United States Constitution.

PropLaw II: Application of S.B. 10, Ohio’s version of the version of the Adam Walsh Act, to offenders whose crimes occurred before its effective date violates the Retroactivity Clause of the Ohio Constitution.

PropLaw III: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who were classified under Megan’s Law effectively vacates valid judicial orders, and violates the Separation of Powers Doctrine embodied in the Ohio Constitution.

PropLaw IV: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who have previously been sentenced for sex offenses violates the Double Jeopardy Clauses of the Ohio and United States Constitutions.

PropLaw V: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who have previously been subject to the provisions of either the 1996 or 2003 version of Megan’s Law violates Due Process and constitutes cruel and unusual punishment as prohibited by the Ohio and United States Constitutions.

PropLaw VI: Application of S.B. 10, Ohio’s version of the Adam Walsh Act, to offenders who, pursuant to agreement with the Prosecutor and before the Act’s effective date, entered pleas of guilty or no contest impairs the obligation of contracts as protected by the Ohio and United States Constitutions.

In re: Adrian R., Delinquent Child – Licking County
PropLaw I: The retroactive application of Senate Bill 10 to juveniles whose offense was committed prior to the enactment of Senate Bill 10 violates the juvenile’s right to Due Process as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution.

Group Issues Report on Sex Offender Registry

September 29, 2009 Comments off (Georgia) : Group issues report on sex-offender registration.

The Justice Policy Institute, a national organization focusing on juvenile and criminal justice issues, warned that compliance with the Adam Walsh Act will provide little in the way of public safety benefits at substantial costs, particularly for those who must now be on sex offender registries for juvenile offenses.

To provide policymakers with more information about the negative impacts of SORNA, JPI is broadly releasing their report Registering Harm: How Sex Offense Registries Fail Youth and Communities. (This report had a limited release in 2008.) Registering Harm concludes that while the prevention of sexual violence should be a priority for policymakers and the criminal justice system, the registration and community notification of youth convicted of sex offenses is unlikely to improve public safety, can have a lifetime of negative effects on a young person, and often penalizes an entire family. Furthermore, advocates say placing youth on sex offense registries is contrary to the purpose of the juvenile justice system, and SORNA has been found to be unconstitutional and in violation of children’s rights.

“There is a growing concern that this well-intentioned legislation is having serious negative consequences, particularly for young people,” said Tracy Velázquez, executive director of JPI. “Our juvenile justice system was set up to give delinquent youth a second chance; due to the very public and punitive nature of the online registries, the Act denies them this chance.”

“Courts have ruled as recently as this month that SORNA is unconstitutional as it is retroactively punitive,” added Velázquez, referring to the recent ruling by the ninth circuit court. “We know that states are being pressured to pass this legislation through threats of withholding federal dollars. However, in light of these serious civil rights issues, we urge state lawmakers to resist rushing into compliance, and to instead focus on insisting that their federal counterparts change this flawed legislation.”

Registering Harm examines the public safety implications associated with implementing SORNA, which would expand registries already established at state levels, requiring states to list all registrants on a national online database and to include children convicted of certain sex offenses. Although originally all states were required to come into compliance with SORNA in July 2009 or face losing a portion of their Justice Assistance Grant Program funds, no states were in compliance at that time and the U.S. Attorney general extended the deadline for compliance to July 2010. Most troubling, according to the report, is that under SORNA youth as young as 14 would be placed on registries, making them more likely to experience rejection from peer groups and positive social networks and therefore more likely to associate with delinquent or troubled peers. Additionally, as the Ninth Circuit Court pointed out, the registration of adult for decades-old juvenile offenses “threatens to disrupt the stability of their lives and to ostracize them from their communities,” notwithstanding years of living law-abiding and productive lives.

The report also notes that many of the offenses committed by youth are normative teenage behaviors. These behaviors are now criminalized and punished in ways that can last a lifetime. The report also concludes what similar reports, such as “The Pursuit of Safety” by the Vera Institute of Justice, also find, which is that registries do little to protect public safety, and may even endanger youth. And while states may lose federal dollars by not complying, JPI’s analysis shows that meeting the Act’s many requirements will likely cost more. SORNA implementation would leave law enforcement tasked with database management rather than community protection.

“Rather than educating the public about general practices for keeping children and communities safe from sexual violence, this Act encourages a disproportionate allocation of resources and inappropriate focus on registries and the people on them,” said Velázquez. She added that in some states, people can be placed on registries for offenses such as public urination or lewd bumper stickers on their car, which would make it difficult for people using the registry to determine who could be a possible threat to their families or neighborhoods.

Key findings in Registering Harm include:

– The Act mis-allocates resources to a fraction of sexual violence incidences. Registries are designed to warn the public, and particularly parents, of “stranger danger;” however, sexual assaults are seldom committed by strangers. The Bureau of Justice Statistics found that more than nine in 10 sexual offenses against children were committed by either a family member or acquaintance. In addition, 87 percent of the people arrested for a sex offense in 1997 had not been previously convicted of a sex offense and therefore would not appear on a registry. The resource mis-allocation caused by the expansion of registries in the Act has an especially significant impact given the budget crises faced in many states.

– Overbroad registration or notification practices make it difficult for the public to determine who on the registry may pose a public safety threat and who doesn’t. Even the tier system of SORNA still provides little context to people who receive notification or view a public registry. In a review of all state registries, Human Rights Watch found that only five states provided enough understandable information on online registries for the public to be able to interpret the charge and the age of both the registrant and the victim.

Registration and notification overburdens law enforcement. State and federal laws are enacted at the local level, leaving local law enforcement agencies and corrections departments to implement and shoulder the burden of registration and notification legislation. Law enforcement is forced to dedicate a great deal of time and resources to monitoring people on the registries, finding people who have failed to register, and constantly ensuring that information on the registry is correct.

Registries and notification create barriers to education, employment, housing, and other social networks and outlets, making it difficult to live successfully in the community. Many states compound the barriers posed by registries with residency restrictions. This leads to increased risk of probation or parole violations or illegal behavior, which may lead to further incarceration.

Public dollars could be better spent on effective prevention strategies that more comprehensively address ways to reduce sexual violence and abuse. The report recommends that policymakers on federal, state, and local levels employ proactive preventative strategies like educating communities about effective ways to prevent sexual violence, which can be a more effective way of increasing public safety.

“Our public policies should be driven by what works to keep people safe,” added Velázquez. “SORNA is one example of well-intentioned but unsound legislation that will have particularly toxic results, especially for youth. We need to move past emotion and rhetoric, and start putting in place more rational, effective policies for all.”

The report can be viewed here:

Our Priorities Need Re-evaluation

September 29, 2009 Comments off (Alabama): Priorities need reevaluation.

Where is our sense of justice and fairness? The past few weeks, the Elmore County Courts have tried the No. 1 assistant to a man who shot and killed a man in a department store parking lot in cold blood to steal his vehicle. It could have been me, you, or anybody. The man had stopped by on his way from work to buy baby diapers. The man was unarmed and was unaware he was about to die, leaving his wife with a baby to raise. It was a senseless, intentional and random shooting. His No. 1 assistant was tried and given 13 years with allowance for time served in jail. He will probably be out in three or four years and can get on with his life as he chooses.

In this same court, there was a man in his 20’s who mentioned to someone that he had a sexual relationship with a girl who was 15 when he was 17. Two years difference in age between teenagers. He was given 30 years in prison. He will serve many years and wear a scarlet letter as a sex offender for the rest of his life.

Why don’t we require robbers and thieves to wear a sign to that effect when out in public and those convicted of DUIs to have car tags with drunk driver on it?

Another thing going on is these cities passing laws requiring sex offenders not to live within 2,000 feet, some places 2,600 feet, from a church, school, daycare or park. The result is there is nowhere in cities for them to live, therefore they are dumping them out in rural areas where law enforcement is thinly spread. Alabama state law requires the sheriff to keep up with these people but does not pay the county anything to do it. The law enforcement agencies could better use their time doing other things.

IN City Sex Offender Ordinance to Change

September 29, 2009 Comments off : Jeffersonville’s sex offender law could get update.

The future of Jeffersonville’s sex-offender ordinance is unclear, as the Indiana Supreme Court has decided not to take a case in which the Indiana Court of Appeals sided against the city.

The ordinance banning sex offenders from entering city parks was originally passed in January 2007. It allowed for offenders to request an exemption if they could show “good cause” for entering a park. Eric Dowdell, who was convicted of sexual battery of a 13-year-old girl in 1996, applied for such an exemption so that he could watch his son play Little League baseball.

Initially he was denied but, following a legal challenge, the Court of Appeals ruled in June that Jeffersonville’s ordinance was unconstitutional as it applies to Dowdell because he served his sentence and completed his requirement to register on the sex offender list before the ordinance was passed.

In the Court of Appeals ruling, Chief Justice John Baker described the exemption process as “extraordinarily burdensome and virtually illusory,” noting that the offender must provide a “legitimate reason” for the exemption and would have to go through the application process each time a new activity arises.

ND : No Interest in Offender Notification Meetings

September 29, 2009 Comments off : Police less likely to hold sex offender notification hearings.

A little more than 10 years ago, 400 anxious people packed an elementary school gymnasium in Fargo to grill two police officers about an ex-sex offender coming to their neighborhood. It was the first notification hearing held in North Dakota to alert residents to the presence of a high-risk sex offender. Two months earlier, Minnesota had held its first notification meeting in Eagan, a Twin Cities suburb.

For a time, such gatherings were regular occurrences. Today, not so much. “It’s been more than a year since we’ve held a public meeting,” said Jay Middleton, a community resources officer with the Grand Forks Police Department. “The reason we quit is lack of turnout.”

It’s the same in Fargo and other cities. “Even the media isn’t coming” to such meetings anymore, Fargo Police Sgt. Jeff Skuza said recently, explaining why his department will rely instead on news releases, the Internet and e-mail alerts to notify residents about a high-risk offender in their midst.

SD Sex Offender Task Board Discuss Changes

September 29, 2009 Comments off

KSFY South Dakota : Sex Offender Registry Task Force Discusses Changes.

A South Dakota sexual assault study task force met Monday in Pierre. The committee was created to review the current state laws on the sex offender registry and determine what changes need to be made to comply with federal standards. The committee is also looking into making some possible changes when it comes to people wanting to get their names off the list….who do not pose a threat to the public.

OH : A National Embarrassment

September 29, 2009 Comments off

Ohio’s draconian sex offender laws (Senate Bill 10, Adam Walsh Act, Sex Offender Registration and Notification Act) have become an national embarrassment. Ohio is the only state in the country to have substantially adopted the Adam Walsh Act provisions, after more than 3 years. Why is that ? Because most other states can see that these laws are impracticable, financially unsustainable , ineffective and riddled with constitutional violations. Yet, in Ohio, our illustrious General Assembly passed these laws unanimously on an emergency basis in 2007 in order to gain the 10% Byrne Funding, which amounts to a pittance when compared to the cost of implementation of these laws – not to mention the enormous cost the state is paying to defend these laws in courts in every county of the state ! For facts, see

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