Archive for May, 2010

TX: Sex Offender Label Requires Court Hearing

May 31, 2010 Comments off Sex offender label requires hearing, court rules.

Austin, TX — Texas has been unconstitutionally designating some prison inmates as sexual criminals without giving them an appropriate hearing, the 5th Circuit Court of Appeals ruled Friday.

The ruling could affect as many as 6,900 prison inmates who have never been convicted of a sex offense although they may be sexual predators.

The lawsuit was brought by Raul Meza, who was convicted in the 1982 murder of a 9-year old girl. He was released from prison in 1993 under the state’s mandatory supervision law and then re-incarcerated until 2002.

At that time the Board of Pardon’s and Paroles listed Meza as a sex offender, a condition that was rescinded in 2005. Meza was not allowed to see the evidence against him or have a hearing before the board. “Meza is no longer required to register as a sex offender,” the court said.

The 5th Circuit noted that in previous cases it has ruled that inmates cannot be designated as a sex offender without a due process hearing.

The 5th Circuit said the state has an interest in rehabilitating sex offenders before they re-enter society, but it said inmates also have a legitimate interest in making certain the record against them is free of errors. But the state at present does not allow inmates to review the record that is used to designate them as sex offenders or to put additional provisions on their parole.

“We conclude that the current procedure provided to parolees who have never been convicted of a sex offense and who face possible sex offender registration and therapy is constitutionally insufficient,” the court said.

“In compiling 6,900 parolee packets, human error will inevitably occur and parolees may be falsely accused of sexually deviant behavior,” the court said. “By simply granting the parolees the right to review his packet, such human errors could be avoided.”

Texas Department of Criminal Justice spokeswoman Michelle Lyons said the agency plans to review the ruling next week with the Texas Attorney General’s Office to see what step to take next.

Government Confiscates 19 Acres of Land from Man Convicted of Child Porn

May 28, 2010 Comments off

Sentencing Law & Policy: Eighth Circuit affirms big real property forfeiture for child porn offense.

I wonder if any of the usual suspects who get riled up about property rights will have any complaints about the intriguing forfeiture ruling from the Eighth Circuit today in US v. Hull, No. 08-4015 (8th Cir. May 26, 2010) (available here). Here is how the decision in Hull starts:

Larry Richard Hull was convicted of two counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(1). The district court ordered forfeiture of Hull’s real property, which consisted of approximately nineteen acres in rural Iowa, pursuant to 18 U.S.C. § 2253(a)(3). Hull appeals the forfeiture order, contending that the evidence was insufficient to support forfeiture of the property under § 2253(a)(3). He also asserts that the district court erred by failing to make adequate findings of fact to determine whether forfeiture was a grossly disproportionate penalty in violation of the Excessive Fines Clause of the Eighth Amendment. We affirm.

Anyone concerned with U.S. property rights and the government’s growing power to confiscate property from citizens should be outraged by this ruling.

States Struggle To Control Sex Offender Costs

May 28, 2010 Comments off States Struggle To Control Sex Offender Costs.

Nationwide, more than 700,000 convicted sex offenders have registered their whereabouts with local police (..and growing each day). Every state has a sex offender registry of some kind.

But as many states face persistent budget shortfalls, it’s become a real question how well law enforcement can keep track of such a large caseload.

“Sometimes federal mandates and state laws get passed without a real sense of what the lingering costs are,” says Suzanne Brown-McBride, deputy director of the Council of State Governments Justice Center.

Earlier this month, the Justice Department proposed significant changes to the registration requirements states must meet under the Adam Walsh Act, a 2006 law that was meant to ensure that offender registries across the country adhere to similar standards. Only three states — Ohio, Delaware and Florida — are in compliance. Many of the rest say it imposes costs that are too high for them to bear.

Even some advocates for harsher penalties for sex crimes worry that states will not devote the resources needed to keep track of so many offenders, often for life.

“It’s the worst it’s ever been because of the economic crisis,” says Ernie Allen, president and CEO of the National Center for Missing & Exploited Children, which estimates 100,000 sex offenders are not even currently registered with states. “Our argument lies not in throwing up your hands and saying we can’t do this. The answer lies in triage — deciding who represents the greatest risk.”

Incarceration’s High Cost

The greatest expense, of course, is incarceration. Sex criminals, along with drug offenders, are the fastest-growing part of prison populations, Allen says. Last week, the Supreme Court ruled that Congress had not overstepped its authority in the Adam Walsh Act by allowing federal prisons to hold “sexually dangerous” inmates after their sentences are completed.

The California legislature is currently considering a bill, known as Chelsea’s Law, which would allow for life sentences for more categories of sex offenders and lifetime parole for others. The bill has the backing of Republican Gov. Arnold Schwarzenegger and could pass the State Assembly as early as next week.

But state officials have warned that the cost of implementing Chelsea’s Law will be high as the lengthier sentences play out. An analysis by the state corrections department found the law would cost $1 million in 2015 but $54 million by 2030. The California Legislative Analyst’s Office says costs will run much higher, “at least a few tens of millions of dollars annually within the next decade” and hundreds of millions annually in decades to come.

California’s budget shortfall currently stands at $19 billion and the corrections budget is already under deep stress. The state is releasing 6,500 prisoners early this year in part to save money. California is under court order to release 40,000 prisoners over the next two years, and perhaps many more over three years, because of overcrowding.

An Expanding List

At the same time, states have come under some criticism for requiring registration and community notification for an ever-expanding list of offenses — including public urination, “sexting” (minors sending nude pictures to each other via cell phones) and “Romeo and Juliet” cases involving older teens who had consensual sex with younger ones.

The argument from some advocacy groups holds that there are twin dangers associated with registration lists that contain thousands of petty criminals: The registry lists are too long to track effectively and can allow the worst offenders to slip through the cracks.

But purging the lists of minor offenders would not necessarily make them more manageable, says Roxanne Lieb, director of the Washington State Institute for Public Policy. “Sometimes there’s discussion about sexting and Romeo and Juliet, but you’re talking about tiny numbers,” she says. “It would still be a huge number to monitor. It’s not going to solve the problem of too many people to watch and keep track of in any way.”

Can States Bear The Cost?

Still, even proponents of harsher penalties increasingly say there’s value in laws that recognize some sex offenders require more oversight than others. Yet the trend in most states has been to differentiate less between various categories of offenders — moving away from “tiered” systems that imposed different notification requirements depending on the severity of the crime.

And it’s the very fact that the Adam Walsh Act puts offenders into three different tiers that has contributed to states’ fear about the cost, suggests Alisa Klein, a public policy consultant with the Association for the Treatment of Sexual Abusers. The practical effect of the federal law (AWA) would be to force states to put more offenders into the highest-risk category — leading to much greater administrative and enforcement costs.

If states do not comply by July 26 — itself an extension of last year’s deadline – they stand to lose 10 percent of their funding under a congressional grant program for law enforcement. But with only a couple of months left and few states on board, it appears that most are deciding the cost of compliance will be higher than the penalty.

The question now is what sort of calculations states will make moving forward. Congress and state legislatures may have made bigger promises in protecting against sex offenders than they’re willing to pay for, or that agencies may be able to deliver.

“What happens is the legislature has basically made a commitment to the citizens regarding how sex offenders will be managed and kept track of,” says Lieb of the Washington State Institute for Public Policy. “To the extent they’re not able to fulfill those expectations, then it becomes grounds for disappointment and lawsuits and other financial consequences.”

Map: Sex Offenders By State

Click on map to see how many sex offenders have been registered in each state, and which states have the highest rates of registered sex offenders per capita.

OH: Abduction and Sex Assault was a Hoax

May 27, 2010 Comments off College Student Recants Abduction Report.

Lebanon, Ohio — Police in Lebanon said the abduction and sex assault of a 21-year-old college student has been ruled a hoax. Investigators said Kristen Lamb admitted Thursday during an interview that the alleged abduction and sexual assault was a hoax. They said they attribute Lamb’s actions over her family’s attention to her brother’s recent wedding.

Police said the University of Cincinnati nursing student admitted that she went to the location in a wooded area where she sat for more than 15 hours. She told police that she used zip ties from her father’s toolbox to bound her wrists. Lamb also told police that she used a pillow case from her own room to cover her head. Police said Lamb took officers to the wooded area north of her home, where they found the pillow case and one zip tie.

According to police, Lamb said she had no other help in the alleged abduction and sexual assault. Police are now talking with prosecutors about possible criminal charges against Lamb.

This woman must be charged severely as anyone should be after making a false accusation of sex abuse. Her family should be ashamed of her for her inexcusable actions.

TN: More Sex Offender Compliance Checks Under Way

May 27, 2010 Comments off Sex Offender Compliance Checks Under Way.

See previous posts for important information about this topic.

The Bradley County Sheriff’s Office and U.S. Marshal’s Service is in the process of contacting sex offenders to verify the information they provided for the state’s sex offender registry is accurate and up-to-date.

Five teams of two people each consisting of personnel from the BCSO and U.S. Marshal’s Service started Tuesday verifying offenders live at the address where they are registered and are abiding by any applicable restrictions regarding minor children living in the same home.

The Tennessee Sex Offender Act requires offenders report changes in residence, employment, or enrollment in an educational facility within 48 hours. Offenders on registries in other states are required to register in Tennessee within 48 hours after they establish residence.

Two NH Sex Offender Bills Killed

May 27, 2010 Comments off Two NH sex offender bills killed.

The New Hampshire State Senate last week tabled and thus killed HB 1628, a bill to encourage police to actively notify the neighbors whenever a sex offender is released into their midst. A dozen opponents, including several sex offenders, had packed the senate public hearing on the legislation.

In response, the Senate Judiciary Committee voted 3-1 to kill the bill politely by sending it to interim study in an election year. A co-sponsor of the bill, Sen. Sheila Roberge (R-Bedford), voted to effectively defeat her own legislation after hearing the evidence against it.

There was no debate on the later Senate floor motion to table. Whatever infighting led to that outcome happened behind closed doors. After the vote, one senator said people were worried about the consequences to the families of sex offenders if neighbors got into the habit of welcoming every sex offender harshly.

I certainly expected an emotional floor fight in the senate chambers. Sen. Robert Letourneau (R-Derry) missed the committee vote, but he co-sponsored the bill and would have voted for it. Close split decisions are rare in senate committees and often lead to donnybrooks on the senate floor. All 24 senators received an email from me the night before the final vote with a copy of an op ed I had just published in the Laconia Citizen. The full text appears at the bottom of this update.

I’m sorry to say the Senate killed HB 1484 the same way, a bill to bar towns from imposing residency restrictions against sex offenders. I heard conflicting reasons from senators and sources close to the governor for the surprising vote to table this fine legislation. It had sailed through the House and left Senate Judiciary Committee with a 5-0 ought-to-pass endorsement. The sponsors tentatively plan to resubmit the bill for next year. (contact your senators !)

Losing this favorable legislation was palatable in an election year. Only five towns have adopted these residency restrictions, and several have chosen not to enforce them in light of a district court decision last August. It shot down the Dover residency restriction against sex offenders as a violation of fundamental property rights.

Shh…Georgia’s Sex Offender Law Changed Last Week

May 27, 2010 Comments off Shh! Georgia’s sex offender law changed last week.

It’s gotten surprisingly little attention, but much of Georgia’s harsh and arguably unconstitutional sex offender law was effectively tossed out last Friday.

That’s when Gov. Sonny Perdue signed House Bill 571, the near-total rewrite of the 2006 state law authored by Christian Coalition head-turned-politician, Rep. Jerry Keen, R-St. Simon’s. HB 571, in turn, was introduced and shepherded through the Legislature by new House Speaker David Ralston, R-Blue Ridge.

So, as of Friday, what’s changed ? Well…

* Sex offenders can’t be forced from their homes or apartments if a park or daycare opens nearby.

* Judges now have discretion to exempt some registered sex offenders from restrictions on where they’re allowed to work.

* Sex offenders are no longer be prohibited from taking part in such church activities as choir and Bible study.

* Homeless sex offenders no longer risk going to prison for failing to have a fixed address.

* Folks won’t be added to the sex-offender registry for a misdemeanor.

The new law also — and this is a biggie — allows judges to remove convicted sex offenders from the state registry after they’ve completed their sentence.

Perhaps just as importantly, the new law provides for sex offenders to be evaluated in terms of their relative risk to the public. For the past few years, the only distinction the law made was in the case of “sexual predators” — serial rapists and child molesters. Everyone else was dumped into the same basket, regardless of whether they’d been convicted of stalking or having sex with an underage girlfriend.

Law-enforcement officials, from the GBI to local sheriffs, have long asked legislators to create a mechanism to differentiate between dangerous pervs and folks like Wendy Whitaker, our cover subject from 2006, who has remained on the state registry despite the fact that she was convicted under a law that was subsequently overturned.

Which brings us to the new law’s shortcomings. For one, it doesn’t address the issue of school bus stops. You’ll recall that, under Keen’s law, sex offenders were prohibited from living near a “designated school bus stop.” That provision was enjoined by a federal judge, however, after it was realized that school systems frequently change bus routes and that there’s no official designation process for bus stops. At this point, I can’t imagine the state would continue to fight to salvage a provision that’s never been enforced.

More troublesome is the fact that the new law applies only to sex offenders convicted since July 2008, meaning it still won’t help folks like Whitaker. Those and other improvements to the law will have to be shaped by future lawsuits.

We say, bring ‘em on !

View Georgia General Assembly HB 571 here.
05/20/10 – House Date Signed by Governor

A BILL to be entitled an Act to change and enact provisions of law relating to classification of sexual offenders, sexual offender registration, and restrictions on sexual offenders’ residences, workplaces, and activities; to amend Code Section 5-6-35 of the O.C.G.A., relating to appeals requiring an application for appeal, so as to make such Code section applicable to appeals reviewing a decision of the Sexual Offender Registration Review Board; to amend Article 1 of Chapter 10 of Title 17 of the O.C.G.A., relating to procedures for sentencing in criminal cases, so as to provide that, classification shall be by the sentencing court rather than the Sexual Offender Registration Review Board; to amend Article 2 of Chapter 1 of Title 42 of the O.C.G.A., relating to classification and registration of sexual offenders and regulation of the conduct of such offenders, so as to revise provisions relating to registration; to provide for an effective date; to repeal conflicting laws; and for other purposes.

Readers in states other than Georgia need to pay attention to this report. Only when the people fight these laws will lawmakers back down. If you are not actively participating in the fight against these abusive sex offender laws, then you are part of the problem!

FL: Governor Signs Bill to Criminalize Sex Offender Loitering

May 27, 2010 Comments off Crist signs bill in Orlando strengthening sex offender laws.

Gov. Charlie Crist signed a bill today that strengthens Florida’s laws against sex offenders and predators.

Crist signed the bill — which makes it illegal for sex offenders and predators to loiter or prowl within 300 feet of a place where children congregate — in front of several-dozen parents, teachers and staff at Timber Lakes Elementary School. (How does a police officer define loitering? It is a subjective determination and is open to abusive application)

The legislation also makes it illegal for sex offenders or predators who were previously convicted of a crime against children, to:

Approach a child in a public park with the intent to engage in sexual conduct or sexual communication
(It is illegal to do that in any place at any time, already)

Be at a child care facility or school without prior notification or approval
(Many people required to register as sex offenders are parents of school children and have every right to be at their child’s school just like any other parent)

The bill also limits sex offenders and predators from participating in activities that would be attractive to children, such as dressing up in costumes like Santa Claus or the Easter Bunny.
(This is just plain ridiculous, unconstitutional and unenforceable in all but public settings)

Crist noted the legislation was passed unanimously.The bill signing prompted applause from the parents and staff who gathered in the school’s media center to see the governor. “Now we get to protect our children more,” Crist said. (He is clearly pandering for political advantage, which is disgraceful and ignorant of the facts that only 2% of child sex offenses are committed by strangers)

Scotland Sex Offenders Win Human Rights Fight

May 26, 2010 Comments off (Scotland): Scots sex offenders win human rights fight -The European Court of Human Rights in Strasbourg.

Judges have ruled the system that places sex offenders in Scotland on a register for life with no way of being removed is in breach of their human rights.

In a landmark judgment involving a convicted sex offender who was placed on the sex offenders register indefinitely at the age of 15, three judges said the scheme, as it stands, is incompatible with the European Convention on Human Rights (ECHR).

It means hundreds of people in Scotland could appeal their cases and challenge their inclusion on the register, while Scottish ministers will now have to change the law to bring the system into line with European legislation.

In future, the system will have to allow offenders to be able to apply for their removal from the register if they can prove they no longer pose a risk.

The decision follows the judgment last month of the Supreme Court, the highest in the land, to unanimously dismiss a Home Office challenge in relation to two English offenders who were on the register for life.

Lawyers for 52-year-old Angus Thompson and a teenager, who raped a child when he was aged just 11, ­successfully argued that the lack of opportunity to demonstrate they had reformed was a breach of their human rights.

The new UK Government may now have to adapt legislation to make ­provision for those who want their inclusion on the ­register re-examined.

The sex offenders register contains the details of anyone convicted, cautioned or released from prison for a sexual offence against children or adults since September 1997, when it was set up.

There are 3913 registered sex ­offenders in Scotland, of which 1631 are subject to the notification requirements for an indefinite period (for life).

In the Scottish case, Lord Hamilton, the lord president, Lord Reed and Lady Smith upheld the appeal of Mr A – who pled guilty in 1993 at the High Court in Airdrie to two charges of assault with intent to rape, one of which included an element of robbery. He was 14 at the time of the offences.

While the case is to be continued later next month – to decide on how it affects ministers and to what extent it will be applied retrospectively – ­lawyers said it was agreed yesterday that Scottish ministers will have to change the law.

Tony Kelly, his solicitor, said: “This outcome was inevitable given the recent declaration by the United Kingdom Supreme Court that the Sex Offender Notification Scheme, under the Sexual Offences Act 2003, was incompatible with convention rights – in that it failed to provide a mechanism for review to enable offenders to apply for their removal from the register.

“The court has continued the matter to discuss and decide upon the question of the remedy to be afforded to: the particular petitioner in this case; and Scottish ministers.

“This has important ramifications in relation to sex offender notification for the past and in the future.”

Kelly added: “Scottish ministers’ recognition that legislation will require to be forthcoming (and that in early course) is, perhaps, an indicator of the significance of this ruling for the Sex Offender Registration Scheme in Scotland.”

Offenders are placed on the register for life if they are sentenced to 30 months or more in jail. Any convicted offender on the register has to notify the police of their personal details, any change of address and when they travel abroad.

A Scottish Government spokesman said: “We will consider the impact of any judgment on the notification regime as it relates to offenders subject to indefinite notification. The objective is to have in Scotland a notification system that will be compatible with Article 8 of the European Convention on Human Rights.

“The Scottish Government’s priority is protecting the public. Scotland has one of the most robust systems of managing sex offenders in the world. The notification requirements form an important part of this system. They provide an invaluable tool to the authorities in allowing the police to keep track of the whereabouts of individual sex offenders; and managing the risk of known sex offenders.”

Once again, High Courts in other countries are far ahead of U.S. Courts. The European Court of Human Rights gets it. The have recognized much sooner than U.S. Courts, that applying lifetime sex offender registration with no possibility or means to prove their way off the list, is a violation of rights. Now, when will U.S. Courts get it?

TX: City Council Expands Sex Offender Residency Restrictions

May 26, 2010 Comments off (TX): Boerne city council votes to expand sex offender boundary lines and prohibited lists.

In a vote of 4-1, Boerne City Council made it unlawful for registered sex offenders to reside within 1500 feet of places where children gather.

Prior to this, state law prohibited registered sex offenders from going within 1000 feet of just schools or parks. Boerne has expanded that list to include public and private playgrounds, daycares, public libraries, and more.

The vote came after an hour and a half of debate. One councilman called it a very decisive issue for the city. The community seemed split down the middle in their support for it or against it.

Those against it argued it would severely limit the areas in which registered sex offenders could live. Thus, it would create a cluster of sex offenders. That would lower property values in those areas, and make it unsafe for the children who already live in those areas.

Another big argument against the ordinance was that it was not ethical or even an effective way to protect children. The councilman who voted against it said, “The threat to our children is so much less the guy in the trench coat hiding under the street light. As it is, it’s the people they already know. The vast majority of crimes to children are committed by the people they know.”

Council also voted to increase the fine for anyone who violates this ordinance from $500 to $2000.

As reported, about half those residents understand that these residency limits do not work, and cause unintended negative consequences for the city. Sadly, their city council is still ignorant about these facts and is still hand-picking low-hanging political fruit from the tree.