Archive for February 25, 2010

Transcripts of SCOTUS Ex Post Facto Oral Arguments

February 25, 2010 Comments off

Sentencing Law & Policy: Today’s SCOTUS sex offender Ex Post oral argument transcripts

We now have a chance here to post the transcripts of SCOTUS oral arguments today here for Carr v. United States (08-1301) and here for United States v. Marcus (08-1341). I fear I won’t have a chance to read these transcripts for a while, but perhaps readers can note any important highlights we have missed.

Let us be clear: This case is convoluted, for sure, and difficult to follow the details of the facts and law. But the essence of this case is this:

1. Mr. Carr committed a sex offense in 2004 in Alabama. After his release , he registered in Alabama.
2. Later in 2004, he moved to Indiana where he did not register.
3. His failure to register in Indiana was discovered in 2007 when he was indicted under SORNA.
4. The Sex Offender Registration and Notification Act (SORNA), which was part of the Adam Walsh Child Protection and Safety Act was enacted on July 27, 2006.

Therefore, this case argues that SORNA, which did not exist when Mr. Carr moved in 2004, should not apply. Mr. Carr moved before SORNA made it illegal for him to move and fail to register. Now, each state has its own registration laws and if Indiana law required him to register, then he could be held liable within that state. But this case revolves around a federal prosecution under a law which did not exist when Mr. Carr violated it.
So…while this is a retroactivity (Ex Post Facto) case, it is somehwat different than the Ex Post Facto challenges on SORNA itself, which challenge whether SORNA can be applied retroactively, as it relates to extending registration requirements. Having said that; it is a very important test case of how the US Supreme Court will rule on retroactive SORNA laws.


JUSTICE BREYER: Well, what is the basic purpose of this statute? I’m having a hard time with it. Is it — is the purpose of the statute to try to get a lot of people to register who haven’t registered at all? Or is the purpose of the statute to get the people who had registered in one State and then moved, and make sure they register in another State?

MR. ROTHFELD: I think that the purpose was generally to encourage registration of sex offenders. Now, of course, when — when Congress wrote the statute, as — as has been pointed out, it was not apparent to them that it was going to apply to people who had committed sex offenses before SORNA was enacted at all. That turned upon the Attorney General’s subsequent determination.

JUSTICE BREYER: No, I mean if they are just trying to get people to register in general, and they are not particularly worried about travel, then they are using this travel as a kind of jurisdictional hook. And if they are using it as a jurisdictional hook, they would like to get everybody, as many as possible, that argues against you.

MR. ROTHFELD: Well, two points –

JUSTICE BREYER: I — I — I have a hard time seeing just what they are aiming at.

MR. ROTHFELD: Well, it — it’s — to — to be honest, I think it’s not entirely clear that Congress had anything specific in mind beyond a reaction to the prior regime in which there were inconsistent approaches being taken by the States.
JUSTICE SCALIA: I don’t know where you get that from. I can understand how you can say, which is what Mr. Rothfeld says, that it has to follow the requirement to register. That’s the way the statute reads: Whoever, one, is required to register, not whoever has committed an offense that — that would later justify registration. It seems to me you are just making up the — the prior act that — that triggers the interstate travel requirement.

MR. GANNON: Well, I don’t think that we are making it up, Justice Scalia.

JUSTICE SCALIA: Well, what text do you base it on? One says “is required to register,” and the position of the Petitioner is: After you are required to register, you must travel in interstate commerce. And you say: No, it’s after you commit the offense that you must travel on interstate. Where do you get that from?

MR. GANNON: Well, we get that from the facts, from the context here, from the anomaly that would be created, the structural anomaly about the differential treatment between Federal and State sex offenders. The fact that the purpose of the statute is to recapture missing sex offenders, which are persons who engaged in interstate travel to elude the registration requirements that already apply to them as sex offenders. And so we think that when Congress invoked the — its powers to regulate travel and interstate commerce, in order to give that element meaning, we think that it makes sense to apply it to persons who already have the type of sex offense convictions that SORNA requires them to register for.

CHIEF JUSTICE ROBERTS: So your answer to Justice Scalia is that you don’t get it from the language? We get it from the anomaly, you get it from the purpose.
JUSTICE BREYER: Do you find any where -where they were both phrased in present tense and it was pretty clear that Congress intended to catch activity that was — at least where the jurisdictional part took place before the statute took effect? You find that good an analogy anywhere?

MR. GANNON: I — I’m not aware of — of a provision that’s — that’s phrased like that-

CHIEF JUSTICE ROBERTS: I — I tried to find one and — and couldn’t. I mean, looking up travels in — in the code, in each of those cases that I found it’s always — it looks like it’s — it’s linked directly to the activity that’s meant to be covered. You know, traveling for the purpose of the — the activity that’s against the law.

MR. GANNON: It’s — that’s — that’s true — in most instances in which Congress has an interstate travel element, that’s true. In some — in some cases like the — the statute at issue in the Trupin case about possession of — of — of stolen goods that have traveled in interstate commerce, that -that’s — that’s — that’s an invocation of-

JUSTICE SCALIA: Yes, where — where it means prior travel, it says so, use of a firearm that has traveled in interstate commerce. They use the past tense when they mean it.
JUSTICE ALITO: But all of those provisions refer now, as a result of the Attorney General’s determination that pre-SORNA convictions qualify, all of those provisions use the present tense to refer to activities that can have taken place in the past.

MR. ROTHFELD: That is correct. At the time that Congress wrote those civil provisions, this statute, on its face, applied prospectively only. The Attorney General had not yet retroactively applied it. Congress specifically gave the Attorney General the authority to apply it retroactively in defining which offenders had to register. It did not give him any authority to retroactively change the scope of the –
JUSTICE ALITO: Well, Mr. Gannon may have made an argument that is not helpful to his position. But can you accept that the first provision means exactly what it says: “Is required to register.” And that takes effect on day when SORNA is enacted.

Florida Revisits Sex-Offender Laws

February 25, 2010 Comments off 5 years after Jessica Lunsford’s death, Florida revisits sex-offender laws.

Lawmakers are rethinking how the state monitors sex offenders and the effectiveness of tougher laws passed after Jessica Lunsford’s death. The brutal killing of 9-year-old Jessica Lunsford five years ago today fueled the creation of a boogeyman in Florida politics: the sex offender.

The designation carries a loaded significance in the legislative process and efforts each year to further restrict the freedoms of sex offenders win broad support. This year is no different with proposed measures to require background checks on athletic coaches and forbid some sexual offenders from using the Internet.

But now — after time, a trial and the killer’s death have dissolved the zeal that spurred the Jessica Lunsford Act in 2005 — a number of lawmakers are rethinking how the state monitors sex offenders and whether current laws are really making children safer. “The emotion and publicity and political science that comes into play after a horrific situation tends to create an overreaction,” said Rep. Mike Weinstein, R-Jacksonville, a prosecutor.

The law named in her honor ordered more electronic monitoring and registration of sex offenders, tougher prison sentences, and background checks for people who work at schools. The effort spread nationwide to more than 30 states with the help of her father, Mark Lunsford, a truck-driver-turned-activist.

The attention also propelled city and county officials in Florida to implement tougher barriers prohibiting sex offenders from living or working near schools, playgrounds, bus stops and churches.


Combined with the Jimmy Ryce Act in 1998, which permitted the civil commitment of sexual predators for life, the efforts made Florida among the most restrictive states in the nation. But recent studies and state statistics show the fear that propelled the laws doesn’t match reality.

“Across the country, studies are not showing changes in sex crime rates can be attributed to those policies,” said Dr. Jill Levenson, a professor at Lynn University in Boca Raton who studies sex offenders. “Sex crimes against children are on the downslide — but since the 1990s.”

The number of people on Florida’s sex offender registry has increased almost 50 percent in five years, now topping 53,500. Nationwide, registered sexual offenders top 700,000.

Even more telling, Florida now spends an additional $36 million a year on sex offender programs. But the number of inmates convicted for sex crimes has held steady in the five years since the Jessica Lunsford Act, according to Department of Corrections statistics.

And the laws have created unintended consequences. The restrictions on where sex offenders can reside made hundreds homeless and prompted dozens in Miami to live under the Julia Tuttle Causeway. And the requirements to register those convicted of lewd crimes put the sex offender label on people who authorities don’t deem a threat.

“There is no empirical support that restrictions on where sex offenders live prevents sexual abuse or re-offending,’‘ said Levenson, a clinical social worker. “Not every person who commits a sex crime is a predatory pedophile.”


This is the message Jennifer Dritt, a leading victim’s advocate at the state Capitol, preaches. As executive director of the Florida Council Against Sexual Violence, Dritt supported tougher restrictions on sex offenders. But she said the lesson from the Jessica Lunsford case was misunderstood. Most sexual offenders are not strangers across the street. The overwhelming majority are those with familial authority.

“In a positive vein, [Jessica’s case] really raised awareness of sexual offender management issues,” Dritt said. “But I think it also sponsored a lot of knee-jerk reactions.” Some lawmakers are starting to agree.

State Rep. Rich Glorioso, R-Plant City, is sponsoring legislation to revamp Florida’s sex offender laws by implementing a “circle of safety” to protect children instead of strong residency restrictions on sexual offenders. The main provision of the bill (HB119) would prohibit sexual offenders from loitering within 300 feet of locations where children are present.

“Sometimes we focus on where those people live,” Glorioso said. “Where they are sleeping last night really isn’t the issue. It’s what they are doing when they are awake.”

Already Glorioso’s bill is falling prey to the politics that put current provisions in place. As originally drafted, the legislation would have prevented cities and counties from making barriers tougher than the 1,000-foot standard in state law but because of political opposition, he plans to take it out.

Will Sex Offender Have to Pay for Old Crimes?

February 25, 2010 Comments off Will sex offender have to pay for old crimes?

Fifteen years have come and gone since he was arrested, pleaded guilty and received five years’ probation for the third-degree sexual offense of trying to solicit sex from a prostitute who was 13 years old. Larry — a name I’ve given him for the purposes of this column — served his probation and took part in weekly group therapy sessions at the University of Maryland Medical Center. Records indicate that he has not committed such a crime — or any crime — since then. “In fact,” he adds, “I would say I’ve lived an exemplary life since then.”

There aren’t many sex offenders going public these days. Larry, who told his story provided I did not use his name, says he “came out of the woodwork” only because of what he (and others) see as election-year hysteria in Annapolis to toughen laws and regulations on sexual offenders, particularly those who victimize children. One of the dozens of measures in the legislature would expand Maryland’s sex offender registry to cover cases from 15 to 25 years ago.

That means Larry’s face and his record would appear where it doesn’t now: on the Internet, for the entire world to see. “I hadn’t really been paying attention to all this nutty, knee-jerk sex offender legislation,” he says. “But I am now.”

When he was arrested in 1995, he had been a consultant on several government-funded projects. He lost his security clearance, lost his job. He had a difficult time finding another. “Categorically turned down by many, many employers,” he says. So he took a lot of lousy jobs that didn’t last. Finally, he found a good job commensurate with his education and training, but he’s sure he would lose it if the General Assembly expands the offender registry.

Larry wrote an anonymous letter to the House Judicial Proceedings Committee. He had a friend deliver it for him. He gave me a copy. I told him I’d let him have his say in this space because an anonymous letter to an Annapolis committee probably never gets much attention.

“Over the past 15 years,” he wrote the committee, “I have been continuously employed. I completed an advanced degree; and I have provided time tutoring and guiding adult students in my field. I am involved in an international program to improve technology in third-world countries. I have made valuable contributions using my artistic and creative side.

“I do not seek contact with children, and I usually go out of my way to avoid it. I do have several nieces whose lives I’ve been invited into with welcome arms. Friends have knowingly welcomed me into their homes. Rehabilitation has not been easy. I’ve worked extremely hard at it and succeeded at it. Were I to detect potential triggers, I know how to employ avoidance strategies involving family, friends and therapists.” Larry credits the group therapy sessions at UMMC with having the most effect on his thinking and behavior, and he thinks the state should spend its money on such programs instead of the costly expansion of its online offender registry.

“I attribute a certain amount of ease in rehabilitation to the fact that I was not subject to any post-probation placement on Internet sex offender lists or unsolicited neighborhood notifications. For example, my current employer, who I hope to be my long-term employer, would not have hired me, according to their policy, had I been on the state’s sex offender list. If I get on such a list, who knows whether I’ll keep my job? It’s open season on you once you’re on that list.”

Larry believes he made a contract with the state 15 years ago — a guilty plea in return for five years’ probation, the court-ordered therapy and nothing more. “I have lived in a contract with the state of Maryland,” he wrote. “Now the state of Maryland wants to impose stringent, retroactive reporting requirements on me and put my picture on the Internet, parading me like a circus freak. The state wants to humiliate me and set me back. The state wants to open me up to potential violence. The state is about to punish me for having done everything right for over 15 years.”