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US Supreme Court Ready to Hear Comstock Case

January 8, 2010 Comments off

Sentencing Law and Policy : US Supreme Court Ready to Hear Comstock (Sex Offender /Adam Walsh Act /SORNA) Case

This coming Monday morning (Jan, 12, 2010), the Supreme Court is scheduled to hear oral arguments in United States v. Comstock (08-1224), in which the US sought cert to answer this question:

Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) “sexually dangerous” persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.

Perhaps not coincidentally, the First Circuit has issued an opinion today in US v. Volungus, No. 09-1596 (1st Cir. Jan. 10, 2010) (available here), which seeks to answer this question. Here is how the Volungus opinion starts:

We are called upon to determine the constitutionality of a provision of the Adam Walsh Child Protection and Safety Act (Walsh Act), Pub. L. No. 109-248, 120 Stat. 587 (2006), a recently enacted federal law that provides in pertinent part for the civil commitment of a sexually dangerous person already in federal criminal custody in lieu of that person’s release upon service of his full sentence. Id. § 320, 120 Stat. at 619-22, codified at 18 U.S.C. §§ 4241, 4247-4248 (which we shall call, as a shorthand, section 4248). The district court concluded that Congress lacked constitutional authority to enact this civil commitment provision and, therefore, dismissed the government’s petition to enforce it against the respondent, John Charles Volungus. United States v. Volungus, 599 F. Supp. 2d 68, 77-78, 80 (D. Mass. 2009). The government appeals from that ruling.

After careful consideration, we hold that the civil commitment provision comes within the legitimate scope of congressional power conferred by the Necessary and Proper Clause of the federal Constitution. Consequently, we reverse the decision below and remand for further proceedings.

What the First Circuit Court did here was “pass the ball”. They lacked the courage to make a ruling as the U.S. Supreme Court case is approaching so they “passed” on it because it would make them look bad should SCOTUS rule it unconstitutional. It is a shame we have so few Justices of courage in this nation.

An Unfair Stigma

January 8, 2010 Comments off

heraldpalladium.com (Michigan): An Unfair Stigma – For convicted sex offenders who have sought help, the state’s public Sex Offender Registry can make it hard to leave the past behind.

After being listed on the Michigan Sex Offender Registry for eight years, William believes he’s earned a chance to resume a normal life.
Convicted of repeatedly exposing himself in public, a misdemeanor offense, he served jail time and completed a five-year probation term. William continued getting the counseling he thought he needed and committed no additional offenses. To improve his employment chances, he obtained a bachelor’s degree in computer science. “I made a mistake, made some poor choices,” the Berrien County man said. “I own what I did, and I believe I’ve fixed it.”

But under state law, the married, 39-year-old Army veteran cannot have his name stricken from the police and public sex offender registries. He must remain listed until 2027. With many employers unwilling to hire a person on the registry, the lengthy term could relegate him to a life with no job or being underemployed.

Being on the registry also limits where he can live and shuts him out of his son’s school activities. Although his crime had nothing to do with children, he’s subjected to the same restrictions as a convicted pedophile.

“It’s miserable,” William said. “I’ve had people leave church because I’m there.”

He was on the management track and had been named employee of the month at his last job. A co-worker discovered that he was a listed sex offender, threatened to blow the whistle, and they were both fired, he said. That was five years ago.

At a recent job interview with a large company, William was confident he’d landed the position. Told that a routine background check was required, he admitted to being listed on the registry. William is waiting to hear from the company but doesn’t hold out hope.
“I can’t get hired,” he said. “If somebody would give me a chance.”

Promoting change

Critics of the state Public Sex Offender Registry charge that the law, while serving its intended purpose of telling where potentially dangerous predators live, can make it impossible for people who are not a threat to find jobs and put the past behind.

The state’s one-size-fits-all approach requires anyone convicted of a “listed offense” to be on the register for 25 years, or life in some cases. Listed offenses range from the most violent felony sexual assaults on adults or children down to indecent exposure, soliciting for prostitution or pandering. Three convictions of any combination of being a disorderly person or indecent exposure results in placement on the registry for 25 years. Convictions for “Romeo and Juliet” offenses, where one of the partners in a sexual relationship is younger than 16, also requires listing.

Across the country, organizations are working for reform, attempting to get states to recognize the difference between predators and those unlikely to re-offend. Tracy Velazquez, executive director of the Policy Institute, a Washington, D.C., think tank, said the consequences of public listing on a registry are often not proportionate to the crime and seriousness of the offense.
There is little evidence that registries protect public safety, she said, and the effects on those listed are harsh and punitive, especially when they are juveniles.

“It’s so because most sex assaults, especially on children, are done by friends or family members,” she said. “We argue that if you want to protect children from being sexually assaulted, we need to do more as to what is bad touching and to address the treatment needs of people who have been victims.”

According to a U.S. Department of Justice study, 34 percent of youth victims, those 0-17, were sexually assaulted by a family member and 59 percent were assaulted by acquaintances (that’s 93%) , leaving 7 percent in the study who were the victims of strangers.

State registries were originally set up to help law enforcement keep track of potentially dangerous and violent sex offenders. They were later expanded to provide information to the public, now by Web sites. “It’s the widespread use over the Internet that has negative effects, Velazquez said. “For law enforcement keeping tabs, it makes sense. But for people trying to live successfully in society, it makes sense for them to have jobs and decent living conditions.”

Since registries were formed in the 1990s, the laws that govern them have been amended in many states. Zones have been set up around schools and in other areas to keep convicted sex offenders out. Restrictions make some cities, among them Miami and San Francisco, nearly uninhabitable for sex offenders. “We’re basically pushing these people out to where there aren’t any services,” Velazquez said. “The idea is that we can banish them.” But if the criminal justice system determines that a person need not be in jail, she said, “we shouldn’t make it impossible for them to live in the community.”

Gloria Gillespie, a therapist who counsels sex offenders and victims of sex crimes, said the registration law stands in the way of people like William who are trying to move ahead. “It’s not set up to help sex offenders,” she said. “It’s set up to help the rest of us.”

Gillespie, who has counseled William for years, said there is “no registry for murderers” or home invaders who may pose a greater risk than a sex offender.

She believes the registration law should be changed to allow shorter listing periods, based on behavior and other factors. The juvenile registry should exist only for police use, said Gillespie, a long-serving Berrien County commissioner.

Juvenile impact

For juveniles, the effects of being publicly listed can be particularly devastating, Gillespie said. Many youths get in trouble for what amounts to sexual experimentation, she said, and listing on the registry interferes with rehabilitation while doing little to safeguard the public.

The mother of a 17-year-old Berrien County youth, convicted of molesting girls he was supervising years ago, is concerned what public registration will mean for her son when he turns 18. The offenses were committed when the youth was 12 and 14. He successfully completed probation as required by the sentencing judge, finishing a 200-hour public service requirement in 4-6 months, and has been on the nonpublic police registry since. He excels in school, where he plays several sports. Gillespie said the youth’s offenses, while serious and wrong, were exploratory in nature. He is not a predator, is unlikely to commit a new crime, but must stay on the register until he is in his 40s, she said. “Juvenile murderers get off at 21 and they’re not on any list,” she said. “What’s the purpose of this?”

The youth’s mother said a lengthy registration requirement may sometimes be necessary, but is unreasonable in her son’s case.
“I think the judges with the help of the counselors and probation officers who know these kids should be allowed to make the decision on how long they should be on the registry,” the woman said. “I know how remorseful he is,” she said. “It’s going to be a challenge for him.”

St. Joseph lawyer Brian Berger, who represented the youth in court, said justice would be better served in such cases if judges had discretion in deciding when people could be taken off the registry. “It’s a huge problem that people who deserve a second chance don’t get it,” Berger said. “When you say ‘sex offense’ it’s such a broad, broad range.”

Offenders who commit violent sexual offenses should be on the registry for a long time, Berger said. “But a guy in a bar who touches a woman and gets (convicted of ) fourth-degree criminal sexual conduct? He’s a registered sex offender,” Berger said.

Legislators take notice

Several bills pending in the state Legislature would amend the registry law, toughening it with measures that would expand the listed offenses to include attempted solicitation of minors over the Internet, and make it a felony for people listed for certain offenses from accessing social networking Web sites. Another bill would expand the 1,000-foot school safety zones to include school bus stops.

A 2006 federal law, the Adam Walsh Protection Safety Act, will create even more reporting requirements and conditions. States were required to adopt the law this year or risk losing a portion of certain grants. No states complied and Congress extended the deadline to 2010. The law requires states to participate in a national registry. It sets up registration requirements for people as young as 14, sometimes for life. It would also create a three-tired system for sex offenders, requiring registration for 15 years, 25 years or life, depending on offense.

State Rep. Tonya Schuitmaker, R-Lawton, who serves on the House Judiciary Committee, said a subcommittee is reviewing Sex Offender Registry problems. “There are some very compelling cases that … don’t rise to the threshold of a predator and shouldn’t be on the register,” she said. “Unfortunately, they get lumped in with the predators.”

The subcommittee, chaired by Rep. Rebekah Warren, D-Ann Arbor, is receiving testimony, Schuitmaker said. In some cases, people learn after they plead guilty to certain crimes that they must register. The law does not provide for review by a judge.

Border Agent Exempt from Child Sex Prosecution

January 8, 2010 Comments off

azstarnet.com: Border agent gets probation for showing boy porn- Abuse charges dropped as part of plea bargain.

Once again, those in positions of authority are not held to the same sex offender standards to which other Americans are. He was not prosecuted for the child sex crimes and was held exempt from the sex offender registration.

A 32-year-old U.S. Border Patrol agent was sentenced to four years’ probation Thursday for furnishing obscene material to a minor, a felony. A Sahuarita resident told police last February that two of her children, ages 10 and 13, said Flavio Maldonado had shown them pornography on his home computer. The 13-year-old also said Maldonado had touched her inappropriately as she sat in front of a bathroom mirror and on another occasion. Maldonado was indicted on two counts of furnishing obscene or harmful items to minors, one count of sexual abuse of a minor under 15 and one count of molestation of a child.
(Astoundingly, he was not prosecuted for these sex abuse crimes)

Maldonado pleaded guilty in November to one count of furnishing obscene items to minors as part of a plea agreement that stated he could be placed on probation or receive up to 3.75 years in prison.

Deputy Pima County Attorney Carolyn Nedder told Judge John Leonardo ( Pima County Superior Court) that if he was inclined to place Maldonado on probation, he should be required to register as a sex offender and to be supervised by probation officers who work specifically with sex offenders.

Although one portion of a psychological-sexual evaluation, which is based on self-reporting, indicates Maldonado isn’t likely to re-offend, Nedder said the overall evaluation determined the likelihood of Maldonado’s re-offending is “moderate-to-high.” The person who conducted the test indicated Maldonado’s behavior is typical of child molesters who “groom” their victims, Nedder said.
Defense attorney Richard Kingston told Leonardo that Maldonado’s actions were innocuous; he thought the boy was asleep while he watched the pornography. Kingston also stressed the results of the test that showed Maldonado wasn’t likely to re-offend. Maldonado told Leonardo he’d never do anything to hurt the children and he regrets everything that has happened. “I’ll make sure nothing like this ever happens again,” Maldonado said.

Leonardo placed Maldonado on probation because of his lack of criminal history, his employment history, the mother’s input and the low-risk test result. The judge declined to require Maldonado to register as a sex offender but will decide in March if he should be placed on a special sex-offender caseload. He also will decide whether Maldonado should be allowed unsupervised visits with the children. Maldonado, who was stationed in Nogales, was originally reassigned to administrative duties but is now on unpaid suspension.

50 State Survey of Sex Offender Registration Laws

January 8, 2010 Comments off

Social Science Research Network: Fifty State Survey of Adult Sex Offender Registration Laws
by Brenda V. Smith, American University – Washington College of Law; American University – NIC/WCL Project on Addressing Prison Rape, August 1, 2009

Abstract:
This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This chart catalogues statutes that address adult sex offender registration requirements in all fifty states, as well as surrounding territories. This chart provides a list of all registrable offenses; indicates whether sex offender registration is required for staff sexual misconduct; details the type of information maintained in the sex offender registry, community notification and other websites; identifies limitations on residency or employment; and identifies the duration of registration.

Download PDF report.

GPS Tracking Does not Stop Crimes

January 8, 2010 Comments off

We have been telling you that GPS tracking is a politically-expedient, yet completely ineffective means of monitoring offenders.
Here are just a few news reports from this week which illustrate this fact. If someone wants to commit a crime, an ankle bracelet will not stop him/her from doing so:

omaha.com: Omaha police want the public to be on the lookout for a 49-year-old convicted sex offender who walked away from a halfway house. He was believed to be in the Omaha area after his tracking device was removed near downtown in November.

wbtv.com (NC): A woman who was attacked by a man already under GPS tracking as a sex offender fought back against the would-be rapist before calling 911, officials said Thursday.

communitypub.com (Delaware): New Castle County Police arrested a New Castle man after he cut off his GPS monitoring device and failed to re-register as a sex offender.

Turnto23.com (California): The Bakersfield Police Department was notified by State Parole Monday that T.H. has absconded from his parole. He was last seen on Nov. 24, where he cut off his GPS ankle monitor, according to the BPD.

Read previous posts: GPS Won’t Protect You
GPS Sex Offender Tracking Illegal
Why GPS Cannot Prevent Crimes

FL Sex Offenders, No Escape from Cold

January 8, 2010 Comments off

miamiherald.com: For sex offenders, no escape from cold –With more cold weather coming over the weekend, homeless sex offenders living under or near the Julia Tuttle Causeway are banned from shelters, and with no place to go, they have little choice but to remain there.

With South Florida in the grip of a record-setting cold snap, he and other sex offenders and predators who live under the Julia Tuttle Causeway huddle in their cars, nylon tents and wooden shacks. “We need help,” Norton said, teeth chattering. There’s little relief in the forecast. The National Weather Service reports temperatures will move into the 70s on Friday but that a strong Arctic cold front is expected to arrive Friday night bringing cold temperatures — again.

Those living under the Tuttle say they’ve been forgotten — save for a few souls who delivered blankets and generators a few weeks ago.

They said Thursday they knew they were not welcome at Miami-Dade County’s homeless shelters because they are sex offenders. Under state law, sex offenders can’t live within 1,000 feet of schools, child-care centers, parks or other areas where kids congregate. Miami-Dade has stricter requirements — a 2,500-foot ban.

After six days in a row of bone-chilling temperatures, they have run out of gas for the generators. Some say it’s just as well; few of them have space heaters.

Ron Book, head of Miami-Dade’s Homeless Trust, concedes that as sex offenders and predators, they aren’t able to stay in the shelters.
“They could probably search out some hotel, but they need resources for that,” Book said Thursday.

The county has had workers out there handing out blankets, he said, but there’s little else he can do that he hasn’t already tried.
Finding landlords who will accept them is increasingly difficult, and some — though not all — of the offenders refuse to leave.

Depending on whom you ask, from 34 to 70 sex predators and offenders still live under or near the bridge. Book has placed 40-45 of them so far, and he says his agency will continue its effort. “I feel bad, but they should talk to their probation officers — they are the ones who put them there,” Book said.

On Jan. 21, the Miami-Dade County Commission is scheduled to consider an ordinance that may ease the boundary that prohibits sex offenders and predators from living 2,500 feet from where children congregate. The new ordinance will instead create child-safety zones, whereby convicted molesters would be banned from loitering 300 feet from schools and other places where children congregate. It would also negate the hodgepodge of laws that vary from city to city in the county.

Volunteers from Pure Mercy, a faith-based charitable group from Pinellas, visited at Christmas, handing out grills, a new generator, gasoline, food and clothing. Executive Director David Lind said it was the third time they visited, and residents now think of him and his wife as if they were their mother and father.

“I don’t think anybody deserves to be punished for their entire life,’‘ Lind said. “These guys did what they did, there are very few who don’t admit what they did. In essence, it seems like they are being punished by society by being stuck in a corner.”

How is this making society safer?” one resident asked, pointing to the GPS monitor he must wear so that authorities know where he is every day. Many of them just remove the monitors or let them run out of power, so that they can go into hiding to find warmth, he said.

Previous related posts:
Man Responsible for Fla. Sex Offender Debacle (Ron Book is no angel).
Get-tough Stand is Too Expensive, isn’t Productive.
Miami Sex Offender Camp Leads to Lawsuit
80 Sex Offenders Living Under Miami Bridge
Miami’s Sex Offender Dilemma