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Archive for December, 2009

Nebraska Fed Court Injunction on Sex Offender Law

December 31, 2009 Comments off

WOWT.com (Nebraska): Judge Blocks Parts of Sex Offender Law.

A federal judge on Wednesday blocked portions of Nebraska’s new sex offender registry law, including provisions that sought to monitor convicted sex offenders’ computer usage and prevent them from visiting certain Web sites.

Judge Richard Kopf did leave other parts of the law intact, saying it came close to meeting criteria set for the state by Congress.

Kopf said lawmakers may have gone too far in two areas – both provisions that weren’t required under the federal legislation. Those provisions prohibit sex offenders from using social networking sites used by children, like MySpace and Facebook. They also require sex offenders have hardware or software installed on their computers and other electronic communication devices to monitor their activities and to consent to such searches.

Sex offenders who have completed their criminal sentences and are not on probation, parole or court-ordered supervision won’t be subject to those provisions, according to Kopf’s ruling, which granted a limited preliminary injunction.

The case stems from a federal lawsuit Dornan filed Dec. 16 on behalf of 20 sex offenders, their relatives and employers. It sought to stop the law from taking effect. Dornan argued the new law would allow for retroactive criminal punishment, amount to double jeopardy, permit unreasonable searches and seizures, and violate the rights to due process and free speech.

Nebraska lawmakers changed the law earlier this year, saying the revision was needed to comply with federal legislation passed in 2006. That legislation said that if Nebraska and other states don’t publicly register all people convicted of sexual offenses and make other adjustments, they could lose out on federal grant dollars for local law enforcement.

Read complete ruling here: http://drop.io/nebraskainjunction

JOHN DOE and JANE DOE 1 through 20, JOHN DOE and JANE DOE A through K, DOE 12 on behalf of DOES H and K, minors, and DOE G on behalf of DOE I, minor, Plaintiffs,
v.
STATE OF NEBRASKA, et al., Defendants.
Case No. 8:09CV456
30 Dec 2009

Court Order Excerpts:

“In Two Respects, Nebraska Has Probably Gone Too Far. By adding two provisions to the registry framework that are entirely foreign to SORNA, Nebraska has come perilously close to voiding the entire law for offenders who have served their time and who are no longer subject to probation, parole, or other court-ordered supervision. These two provisions, when taken together, threaten to take a civil regulatory scheme and turn it into a punitive endeavor. For those that have done their time, the Ex Post Facto Clause of the Constitution very likely bars retroactive application of these changes. Moreover, and looking at each amendment separately, one change unquestionably violates the Fourth Amendment (as Nebraska concedes), and the other has the potential to adversely implicate the First Amendment.”

“Thus, for offenders who must register, but who have served their sentences and are no longer on probation, parole, or court-ordered supervision at the time these new laws become effective, they face onerous new restrictions on their daily lives. They are burdened with the obligation to consent to the search of any computer they possess; they are required to allow the installation of software and hardware monitoring equipment on computers they possess; and many of them are prohibited, upon pain of an additional prison sentence, from using social networking websites, instant messaging services, or chat room service. When these restrictions are coupled

with the fact that all registrants are also required to report in person, sometimes more frequently than once a year, it is likely that Nebraska’s registration scheme, when applied retroactively to citizens who have completed their criminal sentences and who

are no longer on probation, parole, or court-ordered supervision, violates the Ex Post Facto Clause of the Constitution. See Smith v. Doe, 538 U.S. at 101 (holding that Alaska registration scheme did not violate Ex Post Facto Clause because registrant was “free to . . . live . . . as other citizens, with no supervision”) (emphasis added). Put more simply, Nebraska has now retroactively imposed a probation-like regimen that is nearly identical to the supervised release orders I enter on a daily basis for federal criminal defendants who have committed “kiddie porn” crimes. In either context, those restrictions are clearly “punishment.””

“Conclusion:

I am not a fan of laws like this one. If I had my druthers, I would enjoin the entire law and not just the portions that are probably unconstitutional. I am pretty sure that this enactment will divert attention and money from policing the monsters.  I also worry that this law will incite a virulent form of vigilantism against the hapless. But, my likes and dislikes don’t matter.

In a democracy, we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, “[i]f the people want to go to Hell, I will help them. It’s my job.”12 Let’s get at it!”

“Defendants (Nebraska) are preliminarily enjoined from enforcing the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit: (1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and (2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).”

Inmate Sues Over His Jail Assault

December 29, 2009 Comments off

CBCNews : Inmate sues over disabling jail assault.

An accused (not convicted) sex offender who was severely mentally and physically disabled in an assault at a Manitoba jail is suing the province, his alleged attacker and correctional staff. N.T. suffered a brutal physical assault at the Headingley Correctional Centre in early April. He was being held on allegations he had sexually assaulted a person at a First Nations community in August 2008.

N.T. was attacked while being held in a part of the jail used by the general inmate population, civil lawsuit documents obtained by CBC News say. The documents allege jail staff members violated a provincial corrections policy of keeping prisoners charged with sexual offences segregated from the general inmate population for their safety. Guards should have known of the danger Tanner was in and kept him away from other inmates, and they failed in their duty to “control and maintain order among the inmates in each of the cell blocks,” the documents say.

N.T. suffered massive head trauma and other wounds that left him unable “to speak, comprehend or navigate,” and he will need constant medical care for the rest of his life, Tanner’s lawyers said. The lawsuit seeks financial damages, court costs and payment for future medical expenses. One day after RCMP were called to the jail to investigate the incident, they said Tanner suffered life-threatening injuries and was being watched closely in hospital because it was suspected he might die.

Mass. Mayor : Ban Sex Offenders from Parks, Libraries

December 29, 2009 Comments off

wickedlocal.com : Quincy moves to ban sex offenders from libraries, parks.

Quincy Mayor Thomas Koch is reviewing a proposed ordinance that would ban Level 3 sex offenders from entering libraries and parks and from loitering within 500 feet of them.

The ordinance– which would create “safety zones” around the city’s parks, playgrounds, schools and elderly housing– was passed by the city council. It must be signed by the mayor before it takes effect.

“It’s a great step forward, and I wouldn’t be surprised to see more communities follow,” said City Councilor Doug Gutro, who wrote the ordinance with Councilor Kevin Coughlin.

Violations of the ordinance, which would apply only to Level 3 sex offenders – those deemed by the state most likely to re-offend – would carry a $150 fine for a first violation and $300 for each subsequent violation.

The police department would be responsible for enforcing the ordinance and the department of public works would maintain a list of prohibited areas. The proposal includes a provision that would allow sex offenders to enter prohibited areas to vote or attend a religious service.

There are 81 Level 2 sex offenders and 20 Level 3 sex offenders registered in Quincy. Level 2 means the person is likely to reoffend; Level 3 is highly likely to reoffend. (This is a ridiculous generalizing, false statement).

The proposed sex offender ordinance in Quincy would prohibit Level 3 sex offenders from:
– Entering a school, library or day care center unless authorized in writing by an administrator.
– Entering an elderly housing facility unless authorized in writing by a site manager.
– Entering a park or a recreational facility.
– Participating in “a holiday event” involving people 18 or younger unless the parent of one of the children is a sex offender. (Can’t invite family members under 18 to join a Christmas party at your own home?)
– Loitering within 500 feet of a school, library, day care center, park, recreational facility, elderly housing and bus stops. “Loiter” is defined as “remaining in or around property and/or buildings” for more than 15 minutes.

A first draft of the ordinance included a provision that would ban sex offenders from living within a certain distance of schools and parks. That was removed after councilors expressed fear the provision would stop offenders from reporting where they live, as they are required to by law. Councilor Joseph Finn said the residency restriction “would have made 99 percent of all housing unavailable” to offenders.

“Study after study indicates that there is no connection between residential proximity and recidivism of sexual crime,” Finn said. “All it really does is make housing an even more difficult dilemma and it creates greater transiency, which in fact increases recidivism.”

Officials in Weymouth passed an ordinance last year that bans Level 3 sex offenders from living within 1,500 feet of any school, playground, day care or recreational facility.

Quincy officials dropped a provision from the ordinance’s first draft that allowed police to arrest sex offenders for loitering in a safety zone. Assistant City Solicitor Kevin Madden told the council that a city cannot pass a law that gives local police the right of arrest.
“It cannot be an arrestable offense,” Madden said of violations of the ordinance. (In other words, they can only fine a violator).

Readers can contact the Mayor here:
http://www.quincyma.gov/government/MAYOR/
Thomas P. Koch, 1305 Hancock Street, Quincy, MA 02169 , Phone: (617) 376-1990, e-mail: mayorkoch@ci.quincy.ma.us

and City Council idiots here:
Douglas S. Gutro, Ward 5, 230 Marlboro Street, Quincy, MA 02170, (617) 376-1355, E-Mail: dgutro@Quincyma.gov
Kevin F. Coughlin, Ward 3, 19 Small Street, Quincy, MA 02171 , (617) 328-7749 , E-Mail: kcoughlin@Quincyma.gov

Sirs:
We will work actively to have you removed from office as a result of your foolish actions on this legislation which unconstitutionally bans groups of citizens from public places. Not only are these laws unconstitutional, but they are politically motivated and ineffective to the legitimate goal of supporting public safety. While you may believe your actions are a political “gold mine”, the public now understands this type of political pandering and can see it for what it is: a pathetic and ineffective grandstanding and a dangerous violation of citizens’ rights.
-CF.org

Who , Pete Townshend and Sex Offender Registry at Super Bowl

December 28, 2009 Comments off

nydailynews.com : Groups protest Pete Townshend’s Super Bowl appearance over his sex offender registration.

The Who is scheduled to perform in the Super Bowl half time show this season. But if a pair of watchdog groups have their way, that won’t happen, according to ButlerReport.com.

The groups – Child AbuseWatch and Protect Our Children – are incensed that the NFL invited Pete Townshend’s band to play February’s halftime show, since the guitarist was a registered sex offender in the U.K. between 2003 and 2008. Townshend had to register for that five year period after admitting to breaking the law by searching for child pornography on his computer.

Protect Our Children has not only been protesting the NFL over the Who’s inclusion in the Super Bowl. They’ve also contacted the Immigration and Naturalization Department about the issue. They’re calling on a clause in U.S. immigration law which allows authorities to deny entrance to the country to “aliens convicted of – and those who admit – having committed a crime involving moral turpitude.”

According to the U.K.’s Guardian, the NFL has responded to the groups with a letter stating that Townshend never faced criminal charges in the matter.

Last year, Child AbuseWatch wrote to the organization behind the Kennedy Center Awards protesting their decision to honor Townshend and his band. The honor went through as planned. The Superbowl takes place Feb. 7 in Miami.

Sex Offender Laws Driven by Fear, not Reason

December 28, 2009 Comments off

annarbor.com :Sex offender registry laws driven by fear, not reason.

It is heartening to know that Matthew F. (“Pittsfield Twp. man struggles with sex offender label” – Ann Arbor.com, Dec. 15) and others with similar stories are coming forward, and that members of the media are telling of their plight.

Sex offender registries in Michigan and nationwide are growing by leaps and bounds. Sex offender laws implemented in recent years cast a wide net and catch many fish that are awarded equal status with the shark. It’s a system that offers no measurable gain, but creates substantial loss.

Taxpayer dollars are lost to pay for implementation of sex registry laws and oversee compliance. Taxpayer money is lost to fund prosecution, incarceration, or to manage the probation of “offenders.” We’ve lost a controlled and focused sex offender list to a watered-down version that makes it harder to target and prosecute true offenders. We’ve lost rationale and logic to what often amounts to a whipped-up frenzy of fear.

Most sad is the human potential and emotional health lost or diminished when individuals are unfairly demonized and penalized by inclusion on a sex registry. The stigma and restrictions put on anyone who appears on a sex offender list are creating a growing under-society of people who face serious employment, residential and social limitations, and who can do little, if anything, to rise above their circumstances.

Think of the craze to catch “witches” during the Salem Witch Trials. Think of all the “communists” of the McCarthy Era. Sex offenders – regardless of whether they truly are or not – are the latest demons to fear and persecute. One can only hope that more and more “offenders” follow Matthew F.’s example . . . that they step out of the shadows and work to bring understanding and change to the emotional force driving unjust and costly victimization.

Residency Laws May Not Deter Sex Crimes

December 28, 2009 Comments off

htrnews.com (WI): Residency laws may not deter sex crimes.

The question surfaced regarding Manitowoc not having residency restrictions placed on convicted sex offenders. Residency restrictions have been enacted in more than 25 states. Most often the legislation prohibits sex offenders from living within close proximity (500 to 2,500 feet) of locations where children congregate (schools, parks, day care centers, etc.). In April 2009 the Manitowoc city council considered, but did not pass, a residency restriction ordinance. The council said the promotion of crime prevention and safe behaviors should be a top priority versus creating safe zones.

Minnesota, which has some local residency restrictions, recently conducted a research study of 3,166 sex offenders released from Minnesota prisons from 1990 to 2002, (Duwe, Donnay, and Tewksbury, 2008). The study indicated that of the released sex offenders, 224 were re-incarcerated for a new sex offense before 2006. The results showed that none of the 224 offenders would likely have been stopped by a restricted residency ordinance.

The study noted that many of the offenders (113 of the 224) gained access to their victims through another adult person. The study concluded that residency restrictions would have, at best, only a marginal effect on sexual recidivism and that sex offenders are more likely to be recognized in their neighborhood. It indicated that most recurring sex offenses happened between 1 and 20 miles away from the offender’s residence. Offenders pick a residence based on what they can afford and generally pick a victim through an acquaintance or victimize children in their own family.

Communities that have enacted residency restrictions on sex offenders have seen the percentage of offenders that are compliant with the registry drop significantly. Noncompliance with the registry means the information the registry contains is out-of-date and misleading to the public and law enforcement.

Battle Brewing Over State’s Sex Offender Registry Law

December 25, 2009 Comments off

Maine Public Broadcasting Network : Battle Brewing Over State’s Sex Offender Registry Law.

A major battle is brewing in Maine over implementation of the nation’s so-called Adam Walsh Act. In 2010, Maine is supposed to comply with the federal law, which is aimed at creating similar sex offender policies — and public Websites — in all 50 states. One key lawmaker says legislators are likely to balk at some requirements of the federal Adam Walsh Act, which the state is supposed to comply with in 2010.

The co-chair of the Legislature’s Criminal Justice Committee says the issue of how to handle convicted sex offenders has been debated by the panel for years. Sen. Stan Gerzofsky, a Brunswick Democrat, says Maine lawmakers have already revised the state’s sex offender registry law, but he says he doubts that the changes will meet federal requirements.

Gerzofsky says the federal law requires states to have a publicly-accessible registry that includes teenage offenders, and he doubts that Maine lawmakers will go that far. He says there is broad support to make sure true pedophiles are on a publicly-accessible registry, but he says concerns remain about including everyone who has ever committed a sex crime.

Man Convicted for Being Nude in His Own House

December 24, 2009 Comments off

washingtonpost.com : ‘Intentionally naked’ Fairfax County man appealing his conviction.

The Fairfax County man who was arrested for being naked — in his home — was found guilty Friday of indecent exposure.
E.W. 29, continued to believe that he had done nothing wrong and that he did not purposely expose himself to two women and a 7-year-old boy who walked past his house the morning of Oct. 19. He immediately appealed his conviction.
A seven-person jury in misdemeanor appeals court will rule on the propriety of Williamson’s domestic nudity in February.

Because his roommates were gone and E.W. had the place to himself, he said, he walked down to the kitchen sans garments.
In his closing argument, Defense attorney Dickson J. Young said that “nudity in one’s home is not a crime. Under the circumstances of this case, a person who is careless, who should have drawn the blinds and didn’t, that is not criminal behavior. If you’re in a private place and take your clothes off, you have not committed a crime.”

After making his comment that John Dillinger also thought he was doing no wrong, for which Young had no rejoinder, the judge issued his ruling. “I believe from the evidence here,” O’Flaherty said, “that the gentleman obviously was intentionally naked in the house. I find that the windows were completely uncovered. The fact that it went on for so long indicates an obscene display, and I find the gentleman guilty.”

Nebraska Sex Offender Law Ruling Soon

December 24, 2009 Comments off

Omaha.com : Sex offender law faces ruling

(See previous post: Nebraska Sex Offender Law Federal Court Challenges.)

A federal judge probably will block parts of Nebraska’s new sex offender law from taking effect Jan. 1, 2010. U.S. District Court Judge Richard Kopf said he won’t issue a ruling until next week. But he indicated at a hearing Wednesday that he was inclined to bar enforcement of two provisions in the law.

One would require registered sex offenders to consent to searches of their computers or other electronic devices. Refusal to consent would be a felony under the law. The other provision would bar people who have committed offenses against children from using social networking Web sites such as Facebook or MySpace. The provision applies to sites open to children under age 18.

Kopf said he was inclined to let stand other portions of the law, including a requirement to make public the names of all sex offenders.
The state currently makes public only the names of offenders judged to be at high risk to reoffend. Names of those at moderate risk are disclosed to schools, day care centers and religious and youth organizations.

Kopf will consider whether to block a requirement that offenders let authorities install software on their computers and other electronic devices to monitor their Internet use.

A group of 20 convicted sex offenders, along with 11 family members or employers, filed a lawsuit last week asking for an injuction against the new law. The plaintiffs in the suit were identified only as John or Jane Does.

The suit was filed by Omaha lawyer Stu Dornan, a former Douglas County attorney. At the hearing, Dornan argued that the new law is punitive and would unconstitutionally interfere with his clients’ right to work, travel and raise families.
“This bill is designed to pile on penalties of a criminal nature,” he said.

Dornan pointed to the provisions making public all sex offender names and requiring offenders to register in person with authorities before spending more than three days in any one place.

In his argument, David Cookson, Nebraska’s chief deputy attorney general, said it probably would be unconstitutional to require that offenders consent to searches.

KY Sex-offender Case Appealed to U.S. Supreme Court

December 23, 2009 Comments off

courier-journal.com : Sex-offender case appealed to U.S. Supreme Court.

Kentucky Attorney General Jack Conway is asking the U.S. Supreme Court to decide whether the state’s restrictions for sex offenders can be applied retroactively to as many as 5,800 people convicted before the limits went into effect in 2006. The 2006 statute made it illegal for registered sex offenders to live within 1,000 feet of a high school, middle school, elementary school, preschool, public playground or licensed day care.

The Kentucky Supreme Court in October ruled 5-2 that the statute was improperly imposed on people convicted before the law went into effect because both the U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law’s enactment.

In a prepared statement, Conway is seeking the Democratic nomination for U.S. Senate (In other words, he is doing this political pandering to appear tough on sex offenders).

Conway’s office on Wednesday filed a petition asking the U.S. Supreme Court to hear the case. The court receives about 10,000 requests a year to review cases and decides only about 80. But the question of the retroactive application of sex offender laws has arisen in several states, making it more likely that the high court will accept the case.

Conway’s office has previously indicated it would appeal. It had asked the state Supreme Court to stay its ruling, but that request was denied. The 2006 statute subjected all convicted sex offenders to the residency requirements, while the old law applied only to about 1,200 offenders who were on probation or parole.

Experts said research has shown that sex-offender registries and residency restrictions don’t deter future crimes. And some criminal justice officials said makes it so difficult for some offenders to find a place to live that they stop reporting their addresses to authorities.

In an unsigned opinion, the Kentucky Supreme Court’s majority questioned the rationale of the restrictions, noting that they bar sex offenders from sleeping near a school at night, “when children are not present,” but allow them there during the day, when children are there.

The petition filed by Conway’s office said that the U.S. Supreme Court has never considered whether the retroactive application of a statute imposing a residency restriction on registered sex offenders constitutes punishment prohibited by the ex post facto clause.
The attorney general’s office contends that the new requirements are not a punishment and are thus not covered under that clause.
It notes that a federal appeals court agreed with that view in affirming the retroactive application of Iowa’s sex offender law.

We urge readers to contact this idiot to make their voices heard, especially those in Kentucky:
Tel: 502-696-5300; Fax 502-564-2894
Office of the Attorney General
Capitol Suite 118
700 Capitol Avenue
Frankfort, Kentucky 40601-3449