Archive for October 5, 2009

Rep. Bob Barr on Sex Offender Laws

October 5, 2009 Comments off

AtlantaJournalConstitution Blogs : The Barr Code – Sex Offender Vagabond.
by Bob Barr, former U.S. Representative and Presidential Candidate.

Let’s be clear – I dislike sex offenders, especially those who commit sex offenses against minors, as much as any member of the Georgia General Assembly. But let’s be equally clear – passing legislation piling on endless restrictions and burdens on those who already have served prison terms and who remain subject to extensive monitoring, is neither responsible nor effective. Yet that’s what the Georgia General Assembly has continued to do.

The Georgia Supreme Court in late 2007 declared unconstitutional a 2006 state law prohibiting registered sex offenders from residing within 1,000 feet of a school, church, day care center, school bus stop, or anywhere else “where minors congregate.” Undaunted, Georgia legislators continue to enact — and require local law enforcement officials to enforce — laws making it virtually impossible for persons convicted of sex offenses involving minors to reside in the state.

Most recently, a small number of persons who are required to register as sex offenders with the local sheriff (in this case, Cobb County), and who find it impossible to rent or purchase a home anywhere that does not run afoul of the restrictions on where they can live, have taken to pitching tents in certain park areas. Not surprisingly, since there are ordinances prohibiting people from living in tents on government-owned park lands, Sheriff’s officers are properly making them leave.

Clearly, Georgia laws dealing with sex offenders need to be amended to ensure they comply with fundamental constitutional guarantees such as due process and equal protection. Regrettably, this has proved extremely difficult. Many legislators are unwilling or unable to withstand the criticism that in thus amending the laws, they are “coddling child molesters.”

In fact, addressing both federal and state constitutional issues in amending Georgia’s laws in this area is not hard. However, the effort must properly focus on tough, but reasonable restrictions; and not degenerate into a game of one-upsmanship by legislators trying to prove they can be harder on offenders than the next person.

Several provisions in the current state laws clearly are ripe for modification. Forcing sex registrants to avoid living within 1,000 feet of “any area where minors congregate” creates a condition virtually impossible for anyone to meet. Minors can – and often do – “congregate” in areas their parents and others least expect them to do so. A house, an apartment, or a parking lot may be free from such “congregating” one day, but might the very next day become a magnet for teens hanging out. Considering that the law already prohibits sex offender registrants from living near schools, day care centers and churches – and requires frequent reporting of their whereabouts to law enforcement — this additional broad restriction is hardly essential.

Enacting laws that protect society against sexual predators that at the same time satisfy constitutional requirements that have been around since 1791 when the Bill of Rights was adopted, does not require knowledge of rocket science. It does require a sense of fairness and realism that unfortunately often appears lacking in our state legislature.

Kentucky Commonwealth v. Kenneth McBride

October 5, 2009 Comments off : Commonwealth v. Kenneth McBride (SC 4/23/2009)
Commonwealth v. Kenneth McBride (PDF)
2005-SC-000539-DG April 23, 2009
2005-SC-000930-DG April 23, 2009
Opinion by Special Justice Whitlow. Justice Cunningham and Justice Schroder not sitting.

In 1999, McBride was convicted of sexual battery in Tennessee and sentenced to two years imprisonment. In January 2001, McBride moved to Mt. Sterling, Kentucky. In May 2001, McBride was indicted for failing to register as a sexual offender as required by KRS 17.510(7). McBride was found guilty and sentenced to four years imprisonment. The Court of Appeals reversed the conviction because McBride was not given notice of the duty to register in Kentucky, holding that such notice was required by due process, as well as KRS 17.510(6). The Court of Appeals also held that there was an implicit mens rea element to the statute, requiring that defendants must knowingly refuse to register before they can be convicted. In reaching its decision, the Court of Appeals relied upon Lambert, a United States Supreme Court case which held those charged under a California municipal ordinance requiring registration by felons remaining more than five days must have notice of the duty to register.

The Kentucky Supreme Court reversed the Court of Appeals and reinstated the conviction, distinguishing this case from the facts of Lambert. The Court acknowledged “pervasive presence and age” of sexual offender registration statutes, noting that since 1996, all 50 states have such laws. The Court also noted that in Lambert, registration was required for the convenience of law enforcement in compiling a list, whereas Kentucky’s sexual offender registration statute was created out of public safety concerns and is aimed at only a narrow class of offenders. Lastly, the Court observed that sexual offenders have actual notice of their lifetime obligation to register in the state of their original conviction. The Court also held that the notice requirement of KRS 17.510(6) did not require notice be given to those charged and convicted under KRS 17.510(7), since the primary purpose of the section [6] was to require effective administration of the statute by the interstate compact officer—not to create a right of notice for sex offenders.

Justice Noble wrote for the minority (joined by Justice Abramson and Special Justice Mando) and concurred with reinstatement of McBride’s conviction, but felt that, consistent with Petersen, he should be convicted of a misdemeanor under an earlier version of the statute that was in effect when McBride originally registered in Tennessee.

MI Judge Rules “No Registration” for Juvenile

October 5, 2009 Comments off

Detroit News : Sex offender avoids registry- Prosecutors to appeal judge’s ruling that keeps teen off books.

Ann Arbor – Prosecutors are appealing a Washtenaw County judge’s decision that kept a convicted juvenile sex offender off the state’s public sex offender registry. Debra Keehn, an Ann Arbor lawyer who represents the juvenile identified in court records as T.D., said Friday the implications of a ruling by Family Division Judge Darlene O’Brien could be profound if the state Court of Appeals takes the case. “The decision is so well reasoned it’s likely the Court of Appeals will affirm the decision and then the law changes for everyone in Michigan,” said Keehn, who declined to identify her client by name or allow The Detroit News to interview him.

In the case, T.D. was 15 years old when he was accused of second-degree criminal sexual conduct. The case involved a 15-year-old female classmate who accused T.D. of grabbing her and touching her breast in school. A jury convicted him of the charge when he was 16.

In her decision, the judge said she considered T.D. to be rehabilitated and the severity of the teen’s offense to be “low,” saying the incident was “more akin to a juvenile prank than predatory, perverted, criminally deviant sexual conduct likely to be repeated.” O’Brien said: “It would be cruel or unusual punishment to require T.D. to publicly register for the remainder of the 25-year period.”

Larry Dubin, a criminal law professor at the University of Detroit-Mercy, said O’Brien has ruled part of the sex offender registry law is unconstitutional.

“Judge O’Brien’s opinion warrants serious consideration by an appellate court to determine whether the current law is unconstitutional in depriving a judge of exercising discretion when the facts do not warrant registration as a sex offender,” Dubin said.