Archive for November 9, 2009

US Congress – Obsession with Sex Offenders

November 9, 2009 Comments off

In seeing a continual litany of sex offender laws coming out of Washington D.C., ConstitutionalFights decided to track current bills at

As of today, in 111th Congress of the United States (2009-2010) alone, there are currently 21 bills in in the pipeline which are related to “sex offenders”.

It seems our government just can’t stop, or control itself when it comes to passing sex offender laws. We urge all concerned readers to sign up at and track these bills as they work through Congress. We must keep our representatives under check and under our control, as they work for us – not the other way around.

Kentucky Supreme Court Ruling – Ex Post Facto

November 9, 2009 Comments off

Kentucky Supreme Court – Case #2007-SC-000347-CL (Opinion – PDF file)

The question of law to be answered is whether KRS 17.545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute. We hold that it may not. Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil. Therefore, the retroactive application of KRS 17 .545 is an ex post facto punishment, which violates Article 1, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution.

While the original residency restrict ion statute applied only to those on probation, parole, or other form of supervised release, the current statute applies to all registrants regardless of probation or parole status . In addition, KRS 17 .545 adds publicly owned playgrounds to the list of prohibited areas, and measures the distance from the property line as opposed to the wall of a building. The statute also places the burden on the registrant to determine whether he is in compliance . Violation of the residency restriction is a Class A misdemeanor for the first offense, and ;a Class D felony for subsequent offenses.

The United States Constitution and the Kentucky Constitution, through their respective ex post facto clauses, prohibit the enactment of any law that imposes or increases the punishment for criminal acts committed prior to the law’s enactment. The Ex Post. Facto Clause of the United States Constitution “forbids . . . the States to enact any law `which imposes a punishment for an act which was not punishable at, the time it, was committed; or imposes additional punishment to that. then prescribed .”‘ Weaver v. Graham , 450 U.S. 24, 28 (1981) (quoting Cummins v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867)).

Although the General Assembly did not intend KRS 17 .545 to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them. civil. Therefore, the statute may not constitutionally be applied to those like Respondent, like those who committed their- crimes prior to July 12, 2006, the effective date of the statute. To do so violates the ex post facto clauses of the United States and Kentucky Constitutions . The law is so certified.

If link to Opinion fails, go to and search Case #2007-SC-000347

Is Megan’s Law Constitutional or Even Effective?

November 9, 2009 Comments off : Breaking Down Megan’s Law from a Constitutional and Effectiveness Standpoint.

Is registration constitutional? The Supreme Court isn’t so sure, and other courts have yet to agree on the subject. In today’s paper, we will examine the laws of registration and notification of sex offenders, and their constitutionality. It is the contention of this paper that having sex offender’s register and then having communities notified of their presence is an additional punishment that only convicted sex offenders must face, and that the law should be struck down.

Privacy is an interesting concept. All of us have a different idea of how much privacy we should have. However, no one can quite agree on an overall concept of what is private and what is not. Convicted criminals have a serious problem when it comes to their private lives. When applying for a job, there is always a question of whether or not they have committed a felony. Their private lives are no longer applied to our society, because they have broken the law. But how far should we go when dealing with former criminals? In the Victorian Era, those people who were found guilty of committing adultery were forced to wear a large red A across their chest, as a symbol that they have committed a horrible crime. We consider this kind of punishment to be cruel and unusual today, however in that time, it was felt by most that what they did was so horrible, that everyone should know about it. This is how many people feel about sex offenders. The people who helped push Megan’s Law into effect believe that what that person did was so horrible that they should be punished, and that everyone who lives around them should know about it. Is this the same as the scarlet letter? I believe so.

When someone commits a crime, they are punished for it (hopefully). The saying of “you do the crime, you do the time” come to mind. However, for most criminals, once they have served their sentence, they are essentially free. There are exceptions of course. Some people convicted of certain crimes can’t buy a gun, legally. Others have lost their right to vote in America. However, these restrictions are pretty standard for all criminals who have committed a certain level of a crime. Megan’s Law goes a step further. Megan’s Law singles out one single group, and adds on an additional punishment to them.

The American Civil Liberties Union (ACLU) has shown that notification laws are actually counter-productive. This goes against what the law originally intended. The ACLU states “Notification laws will not prevent sex offenders from committing crimes” (ACLU, On-line). They state that the publication of this information will only make ex-offenders more likely to re-offend. What is happening instead is that the sex offenders are actually being victimized. They even cite a couple of examples of this happening. In January of 1997, a California ex-offender’s car was firebombed, and in New Jersey, community members beat a man that they believed was a paroled sex offender! People have even been fired at because their names were published (ACLU, On-Line). So instead of reducing crime, which was the intent of the bill, it has actually increased crime, not only the sex offenders, but also crimes against the sex offenders!

While the ACLU is obviously against this law, which may make them a biased source, others have also shown that only negative things are happening because of this law. According to Marshall Vogts (On-Line), the posting of sex offenders names can also lead to “Witch Hunts.” According to the article, with the advent of the Internet, individuals’ names will be available for all to see, not just those in the community where the sex offender moves. The intent of the law is to only let those people who are living close to the sex offender know about his movement into the community. However, people have started posting this information on the Internet. In some states, there is even a state supported site that has the published information of registered sex offenders. Therefore, anyone who wants this information can get access to it. This can lead to a witch-hunt of a sex offender by upset parents, younger students, etc (Vogts, On-Line). This again shows how the law has backfired.

Megan’s law not only tramples on individuals right to privacy, but it also tramples on the Constitution (ACLU, On-Line). The ACLU makes a very good point when we deal with this topic. When we look at privacy, all of us have some expectation of privacy. All of us feel that we shouldn’t be subjected to what we believe is a violation of our privacy. Unfortunately, people convicted of sex crimes do not get to appreciate that same level of privacy. We have stripped away a right that has been upheld by the Supreme Court. What is interesting about this topic, and the reason as to why I feel so strongly about this issue is that no other criminal is subjected to such double-punishment. When talking about this subject with one of my students, they were surprised that I was against this law. They asked “Don’t you want to know if a sex offender is living next to you?” Of course I said “Yes, but I would also like to know if there is a killer living next to me as well.” That is my point; we don’t make any other criminal go through anything remotely close to this law. If someone has been convicted of murder, and is paroled, or even let out of prison, they are not required by law to register with police, or notify a community when they move in. They have served their sentence, and should be able to move on with their lives. I would like to know if they moved in next door to me, so I could protect myself. The problem is, is that it should not happen. However, this is what we do with sex offenders. They have served their sentence, many of them have been rehabilitated (hopefully all of them), and they should be able to go on with their lives. Unfortunately, registration and notification won’t let them do that either.

According to Mark Vosburgh (On-Line), notification laws also prevent sex offenders from going back into the community, and circulating with society. They are less likely to get jobs, and their home lives are ruined, or at the least, made extremely difficult. The reason is that they are stigmatized by the community for what they did. Even if it was only once, they are rehabilitated, and they are shown to never do any crime again. So once again, the registration and notification laws have been shown to have a negative effect.

By eliminating the notification laws, we can reduce crime, and allow convicted sex offenders to assimilate into our society at a much quicker rate (NAC, 6B). While there are a good number of parental groups that would be worried if we eliminated the notification laws, it is something that needs to be done in order to protect the right of privacy for all of us. This is a slippery-slope argument that is used by numerous groups including the National Rifle Association, the ACLU and others. Once we start to take away some of the rights guaranteed to us by the constitution, it can lead to even more rights being taken away. So we need to take a close look at this law, and see that it does need to be repealed.

By eliminating this law, we can also decrease the number of sex crimes committed by these individuals. It has been shown that once the notification laws are repealed, sex offenders are much less likely to commit another crime, than if they had to register with police, and their names were notified to the community (Winton, On-Line). The reason for this is simple, what can we do if we know that the person living next door to us is a sex offender? Are we going to lock our kids inside the house and never let them leave? Are we going to move? What if that new area has a registered sex offender as well, are we going to keep moving until there are no registered sex offenders around? If someone is going to commit a sex crime again, is the notification going to stop him or her? The answer to this is no. If someone is going to commit a crime, they will do it no matter what. They are already committing a crime, so what if the community has been notified. And like we have already shown, notification actually leads to an increase in recidivism rates.

So when we look at Mass Communication Law, privacy is beginning to become a bigger and bigger issue in America today. We need to protect that privacy as much as we can. We don’t want to live in a society in which we have no privacy. This is the first step. We have begun to trample on the constitution, and our own rights by passing a law that doesn’t make sense, and that fails to do what it was intended to do. If we take this step now, we can avoid that slippery slope that leads to a nation with no privacy.

OH Sex Offender Families Seek Help from State Rep.

November 9, 2009 Comments off (Ohio) : Sex offenders and their families seek help from Goyal.

Sex offenders (and their families and friends) who met Friday with state Rep. Jay Goyal said they believe the state registry system fails to differentiate fairly between severe sex crimes and lesser offenses. About a dozen offenders and members of their families met with Goyal at a south side restaurant Friday to talk about how state policy affects them. The group invited Goyal to the meeting. He said it’s a complex issue and the needs of both sides, victims and sex offenders, should be weighed by state representatives.

“Your most important duty as a state representative is providing for the safety and security of your citizens,” Goyal said. “That’s always the No. 1 priority. However, you need to make sure you’re balancing that with the appropriate punishments.

The group said the system fails to offer opportunities for people who have worked to turn their lives around. They aren’t allowed back into society’s good graces, they said.

Michael Proietti, 24, said he had consensual sex with a girl when he was 19. He woke up to find a cop standing over him, asking whether he knew the girl was 14. After he admitted having sex and not knowing her age, he ended up convicted of a felony — even though the girl’s family didn’t seek criminal charges because of her history, family members said. Since then, according to his father, Gary Proietti of Mansfield, Michael Proietti has had trouble finding or retaining a job, despite being a hard worker with high skill levels.

“If we weren’t here to help him, he would be living under a bridge somewhere,” said his mother, Faith Proietti. “There are corporations that, even if someone did want to hire him, wouldn’t be allowed to give him a job. Those are minimum-wage jobs, but they won’t let you work there, even if it’s just cooking back on a grill.”

They say their son is barred from attending The Ohio State University and Ohio University, and that some community colleges might not accept him.

The 24-year-old said he knows he used bad judgment in getting involved with the girl, has taken responsibility for his actions, grown up, and has not committed other criminal offenses. “I don’t think it’s wrong that I was arrested. I think it’s wrong that it’s perpetual — for the rest of my life,” he said.

“There’s nothing in there that allows for improvement,” his mother said. “There should be some kind of rehabilitation — some kind of test, to say ‘You don’t have to be on this forever.’ “

Del Jackson, of Mansfield, said he’d like to see the system allow offenders to reintegrate into the community once they have shown they have turned their lives around.

Jackson said the Volunteers of America program in Mansfield has received unfair criticism, but has had success. The program really works, he said. “Isolation, versus integration, will never work,” he added.

People react with fear when they learn someone has a sex offender registry label — no matter the details of the crime, said his wife, Tammy Jackson. “As soon as people hear the words, it’s the very same thing,” she said. “My husband can’t get a job, because he was a sex offender.”

Del Jackson’s father-in-law, Robert Palm of Lexington, told Goyal it breaks his heart to see not only his son-in-law, but his daughter and young grandchild suffer. “When I see someone who works hard, downtrodden all the time …”

John Orchard, 76, of Medina, said he was sentenced for a sex offense 18 years ago. He said other adults living in his house, who never committed such a crime, are subjected to jeering by neighborhood children who call them perverts. They don’t deserve that, he said. “That’s all we’re asking for, is to give us that chance that we’re all entitled to,” he said.

Man Wrongly Ends up on Sex Offender List

November 9, 2009 Comments off (Illinois) : Man wrongly ends up on sex offender list.

Scott Ibarra had no idea he was wrongly listed as a sex offender until a pal pointed it out. A year later, the local cops still won’t tell him how it happened. Ibarra’s name, the address of his Joliet home and his physical description were placed in the state’s sex offender registry under a charge of aggravated criminal sexual assault for a month and 10 days in 2008. In fact, Ibarra, 37, said he only learned he was on the state’s list of sex offenders after a police officer he is friends with alerted him to it exactly a year ago, on Oct. 14, 2008.

Since that time, Ibarra has attempted to find out how he was wrongly branded a sex offender, but says he has been frustrated at every turn.

Other mistakes on list

While Ibarra eventually found out from a friend that he was on the sex offender registry, it was a full 39 days before he learned he was listed. Ibarra’s wife, Tracy Ibarra, finds this particularly troubling. “I said, ‘Scott, if they’ve done this to you, they must have done this to someone else,” she said.

Compton did not have statistics for the number of people incorrectly placed on the sex offender registry. He said that while the number varies, there are more than 24,000 listed.

Ibarra admits he is speculating, but wonders if being mistakenly listed as a sex offender caused him trouble and misery during the 40 days he was on the list.

“The day I ended up on the Web site I lost my job, coincidentally,” he said.

Ibarra said he is fighting for justice, but does not know how he can be made whole. “People look at that site all the time, and I don’t know who saw it,” he said. “Once you ring a bell, you can’t unring it.”