Archive for December 17, 2009

Ruling : NC Cannot Ban Sex Offenders from Church

December 17, 2009 Comments off : Judge overturns part of state sex offender law.

Pittsboro, N.C. — A judge in Chatham County ruled Thursday that part of the state law restricting the activities of registered sex offenders is to too vague to be enforced, and he declared it unconstitutional.

Superior Court Judge Allen Baddour also dismissed criminal charges against two men who had been indicted under the law because they were around children while attending church.

State lawmakers expanded restrictions on sex offenders last year by banning them from being within 300 feet of any place intended for the use, care or supervision of children and from “any place where minors gather for regularly scheduled educational, recreational or social programs.”

James Nichols and Frank DeMaio were indicted in May on charges of violating the law by attending Moncure Baptist Church, which has a nursery and regular programs for children. They challenged the state law, saying it was too broad and denied them their right to attend the church of their choice.

Baddour ruled that lawmakers could have used less drastic means to keep sex offenders away from children, noting they carved out exceptions to allow sex offenders to go on school property to vote or to pick up their own children from school.

“The state has not closely drawn the statute to avoid unnecessary abridgment of associational freedoms in achieving its objectives,” he wrote in his 16-page ruling. “Additionally, there are a host of protected religious activities abridged by this statute which do not serve the compelling governmental interest.”

Thirty-six states establish zones where sex offenders cannot live or visit. Some states provide exceptions for churches, but many do not.

Baddour let stand the portion of the law that prohibits sex offenders from “the premises of any place intended primarily for the use, care, or supervision of minors,” such as schools, children’s museums, day care centers and playgrounds.

Federal Lawsuit Challenges Neb. Sex Offender Law

December 17, 2009 Comments off , : Lawsuit challenging Neb. sex offender law.

An ally and reader of ConstitutionalFights forwarded this breaking news to us today.

Omaha, Neb. (AP) – A federal lawsuit is challenging the constitutionality of Nebraska’s sex offender registry law.

The lawsuit filed by nearly two dozen unnamed eastern Nebraska residents says the recently revised Nebraska Sex Offender Registration Act infringes on rights guaranteed by the state and federal constitutions.
Among other things, the revised law expands the list of crimes that require offenders to register as sex offenders. Lawmakers said they wanted to remove the guesswork for courts.

The lawsuit says the revamped law imposes retroactive criminal punishment, twice punishes a single offense and amounts to cruel and unusual punishment.

The state, its county attorneys and sheriffs, the State Patrol and Attorney General Jon Bruning are named as defendants.

Case Number: 8:2009cv00456
Filed: December 16, 2009 in Nebraska District Court
Nature of Suit: Constitutionality of State Statutes, Cause: Federal Question
Jury Demanded By: 42:1983 Civil Rights Act

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Protect Children, Don’t Adopt Adam Walsh Act

December 17, 2009 Comments off

Human Rights Watch : Protecting Children from Sexual Violence: Don’t Adopt the Adam Walsh Act.

State lawmakers will need to decide whether to comply with the federal Adam Walsh Act on sex offenders or lose federal money for law enforcement. The choice for states is to dramatically increase their registration and community notification requirements for convicted sex offenders by 2010 (extended deadline) or lose significant federal law enforcement grant money. Yet, adoption of this Act will, in fact, harm those who it purports to protect.

It doesn’t seem like a difficult choice. Who wouldn’t want to support laws targeting convicted sex offenders and be paid for it? Yet legislatures from Arizona to Illinois to Rhode Island are leaning against implementing the law. Because once you get past the painful emotions and look hard at the problem of child sexual abuse, it turns out that sex offender registration and community notification laws might not actually prevent sexual violence.

Sex offender laws are based on two popular myths about child abuse: that children have most to fear from strangers, and that sex offenders will repeat their crimes. In fact, over 90 percent of child sexual abuse is committed by someone the child knows. And authoritative studies show that three out of four sex offenders do not reoffend within 15 years of release from prison. In fact, 87 percent of sex crimes are committed by persons with no previous sex offense convictions.

The Adam Walsh Act doesn’t tackle the real dangers to children, and contains disturbing provisions. It requires states to register and identify online children aged 14 and older who commit sex offenses. Many states treat child sex offenders differently than adults, exempting them from community notification. They understand that child sex offenders respond well to treatment and have an excellent chance of rehabilitation – and that crimes they committed as children should not haunt the rest of their lives. Thus the Illinois legislature, knowing it was acting in conflict with the Adam Walsh Act, recently overrode the governor’s veto of a law exempting child offenders from online registration.

In the past, federal law required only that states register sexually violent offenders for 15 years. The new act requires states to register virtually anyone convicted of a sex offense. This would force some states to significantly expand their registries. While it may seem a good idea to place all convicted sex offenders on a registry, law enforcement officials and child safety advocates say that expanding the registry to include all offenders reduces its usefulness in helping law enforcement to identify and monitor individuals considered a real risk to the community.

The Adam Walsh Act also extends from 15 years to 25 years or life the time someone is on a registry and subject to community notification, without the possibility of petitioning to be removed. If Congress had consulted experts on sexual violence, it would have found that the longer a convicted sex offender lives offense-free in the community, the less likely he is to re-offend, which is why experts often advocate giving convicted sex offenders an opportunity to be released from registry requirements upon a showing of rehabilitation.

Implementing the changes required by the act will cost states a lot of money. At a legislative hearing in Arizona, witnesses testified that the state would lose between $700,000 and $800,000 in federal law enforcement grants if it didn’t comply with the law – but that it would cost millions of dollars to expand the state’s sex offender laws to comply with the Adam Walsh Act.

And there are other costs to implementing the act. Subjecting convicted sex offenders to community notification for the rest of their lives may do great harm – both to the individuals and to community safety. Offenders included on online sex offender registries endure shattered privacy, social ostracism, diminished employment and housing opportunities, harassment, and even vigilante violence. Their families suffer as well.

Unnecessarily expansive community notification laws may drive more offenders underground, away from supportive services like treatment, and away from the supervision and monitoring of law enforcement. Harsh enduring consequences also provide little incentive for former offenders to live without re-offending: as one registrant told Human Rights Watch, “No one believes I can change, so why even try?”

Every child has the right to live free from violence and sexual abuse. Promoting public safety by holding offenders accountable and by instituting effective crime prevention measures is a core governmental obligation. But states can address the real problem of sexual violence by refusing to adopt the Adam Walsh Act – and then limiting their registration and community notification laws to individuals identified as posing a real risk to the community.

Flaw Revealed in Jessica’s Law

December 17, 2009 Comments off Diego) : Flaw revealed in Jessica’s Law.

Nobody is perfect. So, because laws are made by people, then laws can be imperfect, despite their intentions.

After a recent report from the San Diego State-based Watchdog Institute, it has been revealed that some laws are too vague to enforce. One example is the 2006 voter-approved Jessica’s Law, which bans convicted sex offenders from living within 2,000 feet of a school or park. The report showed that in San Diego County, 73 percent of sex offenders are in violation of Jessica’s Law. In Coronado and Solana Beach, 100 percent of sex offenders are in violation of the law, and in the city of San Diego, 86 percent are in violation.

The law, while having the right intentions, is impossible to enforce. Urban neighborhoods and beach communities designed to have a plethora of parks and schools make it impossible for those individuals to live anywhere. This puts a burden of tracking and enforcement on cash-strapped police departments that simply don’t have the resources.
When it becomes impossible for an offender to live a new life after paying their debt to society, there’s no point in releasing them at all. If they’re still a threat, then they shouldn’t be out of prison.

As a result, offenders are then forced to live under the radar of society, running the risk of recidivism or committing a new crime, if there isn’t a plausible place to live. Even during the campaign for Jessica’s Law, Mike Jimenez, president of the California Correctional Peace Officers Association, was against the law. He said by pushing sex offenders into homelessness, it detracts from the purpose of the law to protect others.

For sex offenders, recidivism rates are lower than for other criminals. According to the Department of Justice, “sex offenders were less likely than non-sex offenders to be rearrested for any offense.” The Watchdog Institute cites another Department of Justice study that says only 7 percent of sex crimes against children have been committed by someone once convicted of a sex crime.

On the Megan’s Law Web site, which is a different law forcing sex offender registration, it’s stated that, “90 percent of child victims know their offender, with almost half of the offenders being a family member.” The image painted of a stranger lurking around parks isn’t the reality. Jessica’s Law perpetuates this myth and it is affecting people by the thousands.

An ex post facto law, which retroactively increases the severity of a punishment, is against Article I, section 10 of the Constitution. Jessica’s Law does just that. People could lose homes that have been owned for decades.

Even relocation wouldn’t work, as an apartment complex or compound full of sex offenders has just as much community appeal as a chemical plant. Simply putting all sex offenders in one place is not a rational choice.

In order to fix this problem, the state must reevaluate the necessity of a law that is nearly impossible to enforce. Sex offenders should be monitored, but not in an inefficient manner. The best way to reform Jessica’s Law is to classify offenders by risk. By evaluating offenders by their riskiness instead of lumping them all together in one pot, offenders can be monitored by necessity without expending unnecessary resources. Only then can stiff penalties be given out for violation.