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Archive for January 30, 2010

Adam Walsh Act: Failed Promise of Federalism

January 30, 2010 Comments off

Social Science Research Network: The Adam Walsh Act and the Failed Promise of Administrative Federalism.
by Wayne A. Logan, Florida State University College of Law
George Washington Law Review, Forthcoming

Abstract:
For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed to date on state influence on agency rule-making, and provides an important cautionary tale for future agency-based criminal justice mandates that will likely come to pass.

Two Teens Charged With Child Pornography After Sexting

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kirotv.com: Two Teens Charged With Child Pornography After Sexting.

Two students, ages 13 and 14, are charged with child pornography after they allegedly sent a naked picture of another student from their cell phones. Police said a 14-year-old boy at Chinook Middle School in Lacey received a cell phone picture from his 14-year-old girlfriend showing her naked. When the boy and girl broke up, the boy allegedly started forwarding the image to other students Monday night. A 13-year-old girl is also charged for allegedly playing a role in spreading the naked photo to other students. Another girl could also be charged. If the teens are convicted, they could spend up to 30 days in detention and they would be forced to register as sex offenders.

WATCH IT: If Convicted, Teens Would Register As Sex Offenders

High Court May Review Pa. County’s Predator Law

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kdka.com: High Court May Review Pa. County’s Predator Law

Pittsburgh (AP) ― A federal court appeals court has asked the PA. Supreme Court to review a western Pennsylvania county ordinance that limits where registered sex offenders may live.

The 3rd U.S. Circuit Court of Appeals wants the high court to determine whether Pennsylvania’s Megan’s Law — which requires some sexual predators to register with police — pre-empts the county ordinance. A federal judge in Pittsburgh last year struck down the Allegheny County ordinance, saying the statewide law invalidates it.

The ordinance aims to ban sex offenders from living within 2,500 feet of schools, licensed child care facilities, community centers and public parks. The American Civil Liberties Union says sex offenders would have virtually no place to live in the county under the ordinance.PA

CA High Court: Jessica’s Law May Violate Constitution

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LATimes: Constitutionality of ‘Jessica’s Law’ questioned.

The California Supreme Court ruled 5 to 2 Thursday that a 2006 ballot initiative that permitted the state to lock up sexually violent predators indefinitely may violate constitutional guarantees of equal protection.

The ruling, written by Justice Carlos R. Moreno, did not strike down the measure, Proposition 83, also known as “Jessica’s Law.”
Instead, the court said a fact-finding hearing must be held to determine whether valid reasons exist for treating sex predators differently from others subject to civil confinement, such as mentally disordered offenders.

Proposition 83 increased penalties for repeat sex offenders, prohibited them from living near schools and parks, and changed the law to permit their indefinite confinement to mental institutions, instead of two years with the possibility of extensions.

Richard McKee, a convicted child molester, challenged his confinement on several constitutional grounds, but the court found that only his equal protection argument had merit. The majority said the state must provide “some justification” for creating greater obstacles for sex predators to win their freedom than for severely mentally disordered offenders who commit crimes but serve their terms in mental institutions. Sexual predators must be shown to “bear a substantially greater risk to society, and that therefore imposing on them a greater burden before they can be released from commitment is needed to protect society,” Moreno wrote.

The majority said the state can provide its justifications in a hearing before a trial judge.
Justice Ming W. Chin, joined by Justice Marvin R. Baxter, dissented.

CA Court Ruling Expected on Homeless Sex Offenders

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SFweekly.com:State Supreme Court Decision Expected Monday On Homeless Sex Offenders.

Homeless sex offenders in San Francisco will find out whether they’ll be able to finally move indoors on Monday. The state Supreme Court will issue its decision about the constitutionality of the Jessica’s Law restrictions banning sex offenders from living 2,000 feet from a school or park — which, in San Francisco, have forced nearly all paroled sex offenders into homelessness.

SF Weekly ran a cover story about the conundrum last month: Sex offenders paroled to the city after voters passed Jessica’s Law in November 2006 must live in enforced homelessness because there are virtually no areas in the dense city that are compliant with the restrictions.

San Francisco attorney Ernest Galvan filed suit against the law on behalf of four sex offenders, arguing the unconstitutionality of forcing people onto the streets. He charged that the foot restrictions were a violation of the ex post facto statute that a person can’t be retroactively punished by law that wasn’t on the books when he or she committed the crime.

All of Galvan’s defendants committed their crimes before the passage of Jessica’s Law, and were paroled for other non-sex-related crimes. But their sex offender status came back to haunt them: Since the people were released after voters approved Jessica’s Law, they must abide by its foot restrictions on where they can live. Currently only the California Department of Corrections and Rehabilitation is enforcing the law’s foot restrictions for parolees. The San Francisco Police Department does not enforce it on registered sex offenders who have been released from parole.

Monday’s likely decision will be the second in less than a week on challenges to Jessica’s Law. In a separate ruling Thursday, the court questioned the constitutionality of the law’s provision permitting the state to commit prisoners deemed sexually violent predators to a state mental hospital for an indefinite stay after their release from prison. (see above post)

Prior to the enactment of Jessica’s Law, sexually violent predators could only be confined to the hospital for two two-year terms following their prison sentence — and only if the state could prove in court the convicts are still a danger to society. Now the person must stay in the hospital until it can be proven he or she no longer meets the definition of a sexually violent predator. The state supreme court remanded that case back to a San Diego Superior Court judge.