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Archive for March 18, 2010

MD Legislature Abandons Reason in Rush to Pass Sex Offender Bills

March 18, 2010 Comments off

baltimoresun.com: Legislature abandons reason, good manners in rush to pass sex offender bills.

I was shocked at the disregard and outright rudeness shown to members of our group as we stood before the (Maryland ) Senate Judicial Proceedings Committee on March 16 to oppose many bills (especially HB936/SB854 and HB736/SB434) aimed at sex offenders, with no real consideration for the lives of the vast majority of victims, and certainly none for the vast majority of nonviolent, low-risk offenders.

Members of the committee pointedly got up and walked out when we spoke. They made disparaging remarks and spouted hearsay as if it were evidence. We citizens, as well as many well-spoken professionals, presented the committee with solid facts and dire warnings about what has happened in other states with similar laws. We stressed that all of us agree that dangerous, repeat offenders (aka predators) should be locked up for life. But fewer than 3 percent of all offenders fit this category! These laws would indiscriminately scoop up children sending “dirty” pictures to each other, consensual lovers who are too far apart in age, flashers, child porn possessors (yep, even accidental,) and guys with vindictive ex-wives.

We presented the same facts in the House Judiciary Committee on February 23. Fewer Delegates were openly rude — but they weren’t listening, either. The amended bills they have passed are actually worse than the originals!

Both committees heard over and over again how public registration has failed to prevent a single predatory offense in any state using it. How the common mis-perceptions that “sex offenders” are incurable, guaranteed to re-offend, and always getting worse, are totally not backed up by any reliable research that has been done in the past 20 years. How people who committed an offense several decades ago, and have been law-abiding, productive citizens ever since, will find themselves placed on this public registry.

I can promise you, delegates and senators, that the whole state of Maryland will regret the day you vote these bills into law. Our children will continue to be raped and molested (mostly within their own homes, by people who have never been on the public registry), our citizens will continue to live their lives in fear (because they erroneously think they are surrounded by predators), and our state will discover, to its eternal shame, the incredible toll in human lives these bills will ultimately take.

You will see, to your regret, that we were right about the astronomical budget it will take to implement — and defend — these totally ineffective laws. The thousands of formerly law-abiding, free citizens who suddenly find their lives completely destroyed by a public registry are going to sue you for damages and fight until their cases reach the highest courts and these laws are struck down. They are heinous, unconstitutional, and protect no one.

Senators, delegates, we have made every attempt to appeal to reason. There will be absolutely no joy in saying “We told you so!” Instead, we will be weeping beside you.

Brenda Jones
Coordinator of Families Advocating for Intelligent Registries.

CT High Court Mulls “Secret” Sex Offender Registry

March 18, 2010 Comments off

Courant.com: Connecticut high court mulls ‘secret’ sex offender list.

Hartford, Conn.- The Connecticut Supreme Court is considering whether officials can keep private the process by which certain sex offenders get onto a non-public registry. The dispute concerns Connecticut’s “restricted” sex offender registry, available only to police and courts.

By law, sex offenders can get on the restricted list if a judge decides they are not dangerous to the public and naming them would identify their victim. The Freedom of Information Commission and Department of Public Safety disagree over whether police must disclose when, where and by whom those court decisions were made.

Justices heard arguments Thursday from attorneys for both state agencies. A reporter for the Journal Inquirer newspaper of Manchester, which first sought the information, also spoke.

The Supreme Court has not said when it expects to rule.

GA Sex-offender Law on its Way to Near-total Rewrite

March 18, 2010 Comments off

blogs.creativeloafing.com: GA Sex-offender Law on its Way to Near-total Rewrite.

Four nearly four years, we’ve been bashing Georgia’s current sex-offender law as draconian; practically unenforceable; counter-productive; and patently unfair under any yardstick you care to use. (For more details, check out my July 2006 cover story.)

Since then, various courts — both federal and state, including the Georgia Supreme Court — have blocked or stuck down portions of the law as unconstitutional, such as a measure to prohibit registered sex offenders from living near school bus stops and a provision that criminalized homelessness.

And yet, the law’s most destructive aspect has been left unchanged: that it provides for no meaningful distinction between a serial child molester and a teen convicted of having sex with an underage girlfriend (or boyfriend). In some baffling cases, people convicted of non-sex-related crimes have ended up on the registry, where they have to meet the same requirements as rapists.

In addition, the law doesn’t allow judges to decide whether a particular offender poses a legitimate threat to the community, even if he’s an 80-year-old former peeping tom who’s confined to a wheelchair.

All of this appears about to change. Before the current legislative session began, new-elected House Speaker David Ralston, R-Blue Ridge, took up the reform of the sex-offender law as his personal cause. As the former chairman of the House Non-Civil Judiciary Committee, Ralston was well aware of the law’s shortcomings and his House Bill 571 represents a near-total overhaul.

Over the past few weeks, Ralston’s bill has only gotten stronger, thanks to sensible tweaks and amendments. The version that passed the House on Tuesday on a 165-1 vote (yes, the one naysayer was Rep. Bobby Franklin, R-Nutjob) would mark a return to sanity for Georgia.

Among HB 571’s many fixes:

  • Judges would have the discretion to exempt some registered sex offenders from restrictions on where they’re allowed to work.
  • Sex offenders would no longer be forced from their homes or apartments if a park or daycare opened nearby.
  • Sex offenders would no longer be prohibited from taking part in such church activities as choir and Bible study.
  • Homeless sex offenders would no longer risk prison for failing to have a fixed address.
  • Sex offenders could petition to be released from the registry if their conviction was for a non-sexual crime; if they were determined to be of low risk to the public; or if they’ve successfully completed their sentence.
  • The punishment for failing to register an address would be reduced from a mandatory 10-year prison term to one year for first-time offenders.
  • One could no longer be added to the sex-offender registry for a misdemeanor.

And so forth. As we said, the bill has already passed the House with no real opposition, so what could go wrong now? Well, HB 571 next goes to Senate Judiciary, whose chairman, Sen. Preston Smith, has been on a law-and-order tear this session. Also, with Speaker Ralston as its author, the bill would make for a no-brainer bargaining chip if the Senate wanted to apply leverage on the House for some reason.

Are we implying that a reasonable and overdue piece of legislation stands a chance of being derailed for crass political motives? Say it ain’t so!


Ohio Senator Already Planning to Get Around Supreme Court Ruling

March 18, 2010 Comments off

phillyburbs.com: Court: New sex offenders may avert notification.

The Ohio Supreme Court has delivered a setback to efforts by state lawmakers to apply the tough new sex offender notification requirements laid out in the federal Adam Walsh Act. Lawmakers had intended for communities to be notified every time a sex offender in the most severe category began living, working or going to school in their neighborhoods. But the high court found that the state law’s language conflicts with that intention.

In a unanimous decision Thursday, the court ruled that sex offenders classified in the most dangerous category after the law took effect Jan. 1, 2008, can still avoid the new community reporting requirements under exceptions similar to those in Ohio’s old law.

The ruling leaves it up to a trial court’s discretion whether a newly classified sex offender’s whereabouts will be provided to neighbors, schools and certain volunteer organizations and businesses as provided by the new law, he said.

“The way the state of Ohio was arguing, it was that if you’re a Tier III sex offender you’re automatically having community notification; there’s no discretion whatsoever,” Prusak said. “But it’s not like they just left out a word or so. The way the entire statute is written, it’s giving the trial court that discretion.”

Sen. Tim Grendell, chairman of the Judiciary Committee on Criminal Justice, said Thursday he’ll introduce a bill to fix the offending language.

We must all contact Senator Grendell immediately to stop him from drafting a new law which will impose community notification on all offenders.
Senate Building
1 Capitol Square, Ground Floor
Columbus, OH 43215
Phone: (614) 644-7718
Email: SD18@senate.state.oh.us

Sample letter:

“After today’s Ohio Supreme Court ruling, it would seem reasonable that Ohio lawmakers would understand that this “piling on” of sex offender laws does have its limits.

Four consolidated cases involving Senate Bill 10 are still under review by the Ohio Supreme Court, which challenge its constitutionality.

We urge you NOT to pursue yet another bill regarding Senate Bill 10, which will increase restrictions and constraints on sex offenders in this state.

Stop the piling-on of sex offender laws in this state!”

Ohio Revised Code Section 2950 – Notification

March 18, 2010 Comments off

Ohio Revised Code: 2950.11
Notice of identity and location of offender in specified geographical notification area.

This posting is to clarify exactly what RC 2590.11 says as it relates to our previous report.
See previous post: Ohio Supreme Court – Ohio vs. McConville – Case No. 2009-0893 – 3/18/2010Case Summary

2590.11 (B)(2) :

(B) The notice required under division (A) of this section shall include all of the following information regarding the subject offender or delinquent child:

(1) The offender’s or delinquent child’s name;
(2) The address or addresses of the offender’s or public registry-qualified juvenile offender registrant’s residence, school, institution of higher education, or place of employment, as applicable, or the residence address or addresses of a delinquent child who is not a public registry-qualified juvenile offender registrant;

2590.11 (F)(2) :

(F)(2) The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment. In making the determination of whether a person would have been subject to the notification provisions under prior law as described in this division, the court shall consider the following factors:
(a) The offender’s or delinquent child’s age;
(b) The offender’s or delinquent child’s prior criminal or delinquency record regarding all offenses, including, but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made;
(d) Whether the sexually oriented offense for which sentence is to be imposed or the order of disposition is to be made involved multiple victims;
(e) Whether the offender or delinquent child used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;

OH Supreme Court Invalidates Sex Offender Notification

March 18, 2010 Comments off

Ohio Supreme Court – Ohio vs. McConville – Case No. 2009-08933/18/2010
Case Summary

The reporting on this case has been horrendous and inaccurate. This is not one of the challenges we have been following since November 2009 regarding retro-activity ex post fact, separation of powers, which should be decided soon. This is an important decision nonetheless. Although this a “slip” opinion (an initial notice which is subject to revision), it appears that this ruling relates only to community notification of those who were informed of their sex offender status after January 1, 2008.

The Supreme Court of Ohio ruled today that an exception to the community notification requirement for Tier III sex offenders set forth in current R.C. 2950.11(B)(2) applies to offenders who were first notified of their classification after Am Sub. S.B. 10 took effect on Jan. 1, 2008. In other words, even if you were reclassified after January 1, 2008, you are still permitted the exception to community notification. Community notification is the process of informing schools, neighbors, and daycare centers about the presence of a sex offender living in the area.

daytondailynews.com: Court: New sex offenders may avoid registry rules (misleading headline)
chillicothegazette.com:Court: New sex offenders may avert notification
WBNS: Ohio Supreme Court Rules New Sex Offenders May Avoid Registry (false headline)

The Ohio Supreme Court has delivered a major setback to efforts by state lawmakers to apply the tough new sex offender notification requirements laid out in the federal Adam Walsh Act.

In a unanimous decision Thursday, the high court ruled sex offenders notified of their status in the most severe category after Jan. 1, 2008, may avoid the new community reporting requirements under exceptions found in Ohio’s old law. That means word of newly registered sex offenders in the most egregious category may not be disseminated to all the volunteer groups, schools and businesses Ohio’s rewrite of the law intended.

In the majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to continue to apply.

—————————————————————

The case involved Stephen McConville, who pleaded guilty in Lorain County in July 2008 to rape and gross sexual imposition. After a hearing, a trial court decided he was unlikely to commit future sexually oriented offenses and could therefore be exempted from ongoing community notification requirements.

The 9th District Court of Appeals affirmed the trial court’s decision that McConville was eligible for the exemption even though he’d been classified as a Tier III sex offender after Jan. 1, 2008.

In the Ohio high court’s majority opinion, Justice Robert Cupp agreed with lower courts that the wording of the law was clear in allowing the exceptions to community reporting to continue to apply.

A legislative analysis of the Senate bill that contained the change advised lawmakers at the time that it “automatically replaces the period of time for which the offender or delinquent child had a duty “to register” (this is an inaccurate term – it should read “to be subject to notification”) prior to January 1, 2008.”

—————————————————–
Excerpts from Slip Opinion:
“We are asked to decide whether the community-notification
provisions of R.C. 2950.11(F)(2) apply to defendants who are notified of their
sexual-offender status after the effective date of the amendment of that section by
2007 Senate Bill 10, or whether R.C. 2950.11(F)(2) applies only to sexual
offenders whose status was determined under the legislation in effect prior to that
effective date. Because we conclude that R.C. 2950.11(F)(2) applies to
defendants who are notified of their sexual-offender status after the January 1,
2008, effective date of the amendment of that section by Senate Bill 10, we affirm
the judgment of the court of appeals.

Based on the foregoing, we hold that the community-notification
provisions of R.C. 2950.11(F)(2) apply to defendants who are notified of their
sexual-offender status after January 1, 2008, the effective date of the amendment
of that section by Senate Bill 10.”

Case Summary:

“Effective Jan. 1, 2008, the General Assembly amended Ohio’s former sex offender classification scheme by adopting a new set of classifications based solely on the crime for which an offender was convicted. In the legislation adopting the new classification scheme, Am Sub. S.B. 10, the General Assembly included general provisions requiring that adults convicted of Tier III sex offenses and certain child sex offenders must register every 90 days for life with the sheriff in any county where the offender lives, works or attends school. The statute also requires sheriffs to provide notification including the residence and work addresses and a photo of the offender to specified parties in the surrounding community, including neighbors and nearby schools, day care centers, and victims of past sex crimes.

The legislation also included a provision, R.C. 2950.11(F)(2), stating that the community notification requirement for Tier III offenders “does not apply” to an offender if a court finds at a hearing, after considering 11 specific criteria set forth in that section, “that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.”

In this case, Stephen McConville pleaded guilty in July 2008 to rape and gross sexual imposition. At sentencing, McConville was notified that he would be classified as a Tier III sexual offender under the classification system established by S.B. 10. The trial court advised McConville of his registration and reporting duties pertaining to the Tier III classification. The court then conducted a second hearing for further review of the community-notification requirement. After considering the statutory factors set forth in R.C. 2950.11(F)(2), the trial court determined that McConville was “unlikely to commit a sexually oriented offense in the future, and that suspending the community notification requirements of R.C. 2950.11(F)(1) [was] in the interest of justice.”

The state appealed, arguing that the exception to community notification set forth in R.C. 2950.11(F)(2) was intended to apply only to persons who had been classified under the pre-2008 sex offender statute in a category that did not require community notification, but who were subsequently reclassified as Tier III offenders under the provisions of S.B. 10. The 9th District Court of Appeals affirmed the trial court’s holding that R.C. 2950.11(F)(2) was applicable to offenders like McConville who were notified of their classification after Jan. 1, 2008. The state sought and was granted Supreme Court review of the 9th District’s decision.

In today’s unanimous decision, Justice Cupp wrote: “R.C. 2950.11(F)(2) provides: ‘The notification provisions of this section do not apply to a person described in division (F)(1)(a), (b), or (c) of this section if a court finds at a hearing after considering the factors described in this division that the person would not be subject to the notification provisions of this section that were in the version of this section that existed immediately prior to the effective date of this amendment.’ The remainder of the statute details the 11 factors the trial court must consider to determine whether the sexual offender would have been subject to community notification under prior law. … This appeal presents a matter of statutory interpretation. As a general rule, the words and phrases of a statute will be read in context and construed according to the rules of grammar and common usage. … Moreover, there is no need for this court to apply the rules of statutory interpretation when the language of a statute is plain and unambiguous and conveys a clear and definite meaning.”

“The state’s argument is that R.C. 2950.11(F)(2) gives the trial court the discretion to suspend the community-notification requirement in consideration of the statute’s limiting factors only when the sexual offender’s status was previously determined under the law in effect prior to Senate Bill 10. … We find that the language of R.C. 2950.11(F) is unambiguous. Accordingly, we do not find the state’s argument persuasive. The language used in the statue pertains to those sexual offenders whose status is determined after the effective date of R.C. 2950.11 as amended by Senate Bill 10. The provision is written in the present tense, referring to a ‘hearing’ at which a judge ‘finds’ certain facts. The 11 factors of R.C. 2950.11(F)(2) are similarly written in the present tense, indicating an evaluation presently taking place, and not one that has already occurred. In contrast to the state’s position, the language of the statue does not indicate that it applies only to those sexual offenders whose status had been previously determined under the provisions of former R.C. Chapter 2950. As a result, we decline to interpret the statute when no interpretation is required.”