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CO: Sex Offenders Can Now Be “Cured”

May 12, 2010 Comments off

denverlegalview.com: New Colorado Sex Offender Bill Headed for the State Senate.

House Bill 10-1364, a controversial piece of legislature extending Colorado’s Sex Offender Management Board (SOMB), is up for a final review by the state Senate after receiving some last minute changes. The main thrust of the bill, to extend the SOMB for another five years, was met with little resistance. Rather, contention surrounding the original bill centered on a bit of modified language pertaining to the Sex Offender Management Board’s directive, removing language supporting the theory that there is “no known cure” for sex offenders.

This has always been a bogus argument. To believe that an individual who has committed a sex-related crime can never change or rehabilitate (or be “cured” to use their subjective term) is an inane, uneducated viewpoint. There is no more sense or logic behind this belief than there is to believe that murderers, domestic abusers, drunk drivers and drug users can never change. Recidivism rates for sex offenders are lower than those of other offenders.

This was an important omission because, in Colorado, those convicted of sex offenses are offered treatment based on the assumption that there is no known cure for their condition.

Now, that’s a stupid statement. Why even provide treatment to people whom you believe cannot be successfully treated…

In the face of heavy criticism, Democratic House members agreed to a compromise – language directing the SOMB to acknowledge the existence of “some adult sex offenders” who fit into a group for whom there is no known cure.

Implementing the Adam Walsh Act’s Sex Offender Registration and Notification Provisions: A Survey of the States

May 12, 2010 Comments off

Sage Journals Online: Implementing the Adam Walsh Act’s Sex Offender Registration and Notification Provisions: A Survey of the States (2010) –

Download PDF report here: Registration Required to view complete document.

Andrew J. Harris, University of Massachusetts-Lowell, Andrew_harris@uml.edu
Christopher Lobanov-Rostovsky, Colorado Division of Criminal Justice

With the 2006 passage of the Adam Walsh Child Protection and Safety Act (AWA), the United States Congress established a range of requirements for sex offender registration and notification (R&N) systems operated by states, tribal jurisdictions, and U.S. territories. In the years since the law’s passage, these congressional mandates have generated concern within some covered jurisdictions and among national organizations over matters such as the perceived undermining of jurisdictional autonomy, the variance between the law and emerging “best practices,” and perceived threats to the viability of state-based sex offender management efforts. To examine these concerns, a national survey was conducted in the fall of 2008 to evaluate the consistency between AWA requirements and existing state policies and practices, and to assess state-based barriers to AWA implementation. The survey results identified several areas of inconsistency between AWA mandates and state practices, particularly those relating to inclusion of juveniles, classification methods, and retroactive application of R&N requirements. The study revealed the barriers to AWA implementation within many states to be multifaceted and complex, suggesting the potential need for a recalibration of federal policy governing registration and notification. Implications for the respective roles of federal and state governments in the shaping of sex offender policy are discussed.

DE: Sex Offender Registry too Strict

May 12, 2010 Comments off

DelawareOnline: Offender registry called too strict – Delaware’s list includes juveniles as young as 9.

Their youthful faces stare from the pages of Delaware’s online sex offender registry, some obviously scared, some scowling, some expressionless.

These are photographs of children who committed sex crimes. They are branded, a condemnation that can haunt them forever.

Delaware has some of the youngest sex offender registrants in the nation – one as young as 9 – according to backers of legislation that would give Family Court judges some discretion in deciding which juveniles belong on the registry and which do not.

In registering offenders who are younger than 14, Delaware’s registry system is more stringent than required by the federal Adam Walsh Act, a law that some states complain is too strict.

Due to political, legal and social concerns, the push to give Family Court judges a say in the matter has run into a wall of opposition. Attorney General Beau Biden opposes the legislation. Election-minded legislators don’t want to give opponents the opportunity to paint them as soft on sex offenders. Publicity about sex crimes has made the issue of sexual offenses even more politically toxic.

“I can’t even get it out of committee,” said Rep. Melanie George, D-Bear, referring to the bill she introduced last year that would give Family Court judges the power to decide if children younger than 14 should be listed on the registry. It also would give them discretion to decide whether juveniles older than 14 should be listed if they are convicted of certain lower-level offenses.

A law like that might have kept “Kevin’s” name off the registry. But thanks to what critics say is Delaware’s one-size-fits-all system, he’s a marked man. Now in his 20s and living in another state, Kevin agreed to an e-mail interview on the condition that his real name and certain details of his case be withheld.

At age 13, Kevin was caught “messing around” with a younger child and was convicted of two misdemeanor sex offenses. “We were just kids,” he said, describing the encounter as consensual but declining to go into detail. Juvenile records are sealed and not available for review.

Kevin’s listing as a moderate-risk offender put him on the registry — listings of low-risk offenders can be accessed only by law enforcement — and being on the public registry has followed him into adulthood.

Like all registered sex offenders, Kevin must provide his name, date of birth, address, employer, driver’s license number, Social Security number, professional licenses, passport, immigration status and school affiliations to the offender registry. He must update any change in these details of his life within three days or face a felony charge. His photo, name, physical description, address, car license number and crime are on display to anyone. There are restrictions on where he can live, and his status is a red flag on job applications.

“All this has done is made my life difficult. It’s not like the public is being protected. I was just 13,” Kevin said. Kevin said the incident was his one and only legal offense. His name did not appear during a search of Delaware Superior Court and Court of Common Pleas records.

It’s tales such as Kevin’s that bother Lisa Minutola, chief of legal services for the Public Defender’s Office. Minutola has spoken with a few youth offenders whose names still appear on the registry years later, and “they definitely had horror stories of not being able to get employment, not being able to get an education,” she said.
Age limits

According to Minutola, the Delaware registry has one person who was listed at age 9 who is now in his teens. Three individuals were placed on the registry at age 10, she said. The registry, which has 2,725 entries, isn’t searchable by age.

Only six states actually define the youngest age at which an offender must be registered, “which leaves open the possibility that even very young children who evidence sexual behavior problems may be subject to registration,” according to the Center for Sex Offender Management, a project of the U.S. Department of Justice. Of the six states that do define the youngest registration age, North Carolina sets the limit at 11; Indiana, Ohio, Idaho and Oklahoma begin registering offenders at 14, and in South Dakota the minimum age is 15.

Biden took steps to strengthen Delaware’s sex offender registry soon after he took office — and he’s not amenable to legislation he believes would weaken it.

According to Biden and Deputy Attorney General Christina Showalter, keeping juveniles off the registry or easing restrictions would threaten public safety.

Grier Weeks, executive director of the National Association to Protect Children, says “It’s not a black-and-white issue. Are there juveniles who commit sex crimes who do not belong on sex-offender registries? Of course,” Weeks said.

Facts

A 2009 study published in the International Journal of Offender Therapy and Comparative Criminology tracked juvenile sex offenders from adolescence through age 26. Fewer than 2 percent were arrested for an adult sex offense by age 27.

Delaware’s juvenile sex offender statute “is ruining the next generation,” Pittman told a joint meeting of the state House and Senate judiciary committees on March 31. “Delaware has the youngest registrants in the country, and when you say in the country, it means in the world,” Pittman said. “Having offenders who are younger than 14 on the registry is problematic.”

Pittman said recent studies indicate that juvenile sex offenders have a recidivism rate of 5 percent to 14 percent — substantially lower than the rates for other juvenile crimes, which range from 8 percent to 58 percent.

In 2006, Congress passed and President George W. Bush signed the Adam Walsh Act, which contains a provision known as SORNA: the Sex Offender Registration and Notification Act. That act requires juvenile offenders as young as 14 to register for life if convicted of more-serious sex offenses. States that do not comply will lose 10 percent of their funding from the federal Byrne Grant anti-crime program.

Delaware revised its law in an attempt to comply with the act, but in doing so it “cast an overly wide net that will tragically engulf nearly all adolescent sexual behaviors, including those prepubescent-like, exploratory behaviors committed largely out of curiosity,” Pittman said in a prepared summary of her analysis of Delaware’s law.

Politics

If the recent studies indicating that juvenile offenders are unlikely to commit another offense are true, Delaware’s law could run counter to the 2002 state Supreme Court decision in Delaware v. Sapp.

In that case, the court advised the General Assembly to keep in mind that the registry statute must be related to the government’s interest in protecting the public from the danger of recidivism of sex offenders.

In other words, statistics must back up any sex offender registry legislation effort. If the statistics aren’t there, these sex offender laws will be killed. This is why you constantly see the falsely-cited high recidivism data in the media. We have posted the actual official USDOJ Recidivism studies multiple times on these blogs. How hard is it for the media to find this data if they truly have an interest in publishing factual information? Politicians and activists do a good job of espousing the false data much more loudly than we can publicize the true data.

Split New York Court of Appeals Ruling on SORA

May 12, 2010 Comments off

sentencing.typepad.com: Split New York high court ruling.

New York Court of Appeals : SORA (sex offender registration act) and plea agreements.

Two cases — People v. Tara Gravino and People v. Robert W. Ellsworth — commonly ask whether the trial courts’ failure to advise the alleged sex offenders of a significant consequence to their guilty pleas rendered their pleas invalid. The first originated in Wayne County, the second in Chautauqua County, NY.

Rochester attorney Kathleen P. Reardon will represent Gravino, who argues SORA registration should be a direct — rather than collateral — consequence of a plea, and must be fully explained to a defendant before they agree to plead guilty.

Ellsworth argues a condition establishing terms of probation should be considered a direct consequence of his plea and that the court’s failure to advise him that “he would lose the fundamental right to live with his children” makes the plea “neither knowing nor voluntary.”
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In an interesting split opinion in NY v Gravino, No. 77 (NY May 11, 2010) (available here), the New York Court of Appeals rejected yesterday claims about the import of a defendant failing to know certain significant “collateral” consequences of a conviction when entering a plea. In so doing, the Gravino ruling spotlights some critical follow-up questions to the Supreme Court’s recent Padilla ruling that an attorney’s incompetent advice on immigration consequences of a plea could amount to ineffective assistance of counsel under the Sixth Amendment.

Here is how the majority opinion in Gravino gets started and a key final passage from the court’s holding:

“We hold that because they are collateral rather than direct consequences of a guilty plea, SORA registration and the terms and conditions of probation are not subjects that a trial court must address at the plea hearing. Put another way, a trial court’s neglect to mention SORA or identify potential stipulations of probation during the plea colloquy does not undermine the knowing, voluntary and intelligent nature of a defendant’s guilty plea….

We decide today that SORA registration and the terms and conditions of probation are not direct consequences of a plea — in other words, that the judge’s failure to mention them does not, by itself, demonstrate that a plea was not knowing, voluntary and intelligent. It does not necessarily follow, though, that non-disclosure is always irrelevant to the question of whether a court should exercise its discretion to grant a motion to withdraw a plea. There may be cases in which a defendant can show that he pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him that he would have made a different decision had that consequence been disclosed.”

Here is how the dissenting opinion in Gravino gets started and some key passages from its discussion:

“Because I believe that SORA certification and subsequent registration and the restriction of contact with one’s children as a condition of probation are direct consequences of a guilty plea of which a defendant must be informed to make that plea knowing, voluntary and intelligent, I respectfully dissent….

While it is true that Padilla dealt with the duty of counsel, rather than the duty of the courts, to inform a criminal defendant about deportation, the rationale employed by the Court in rejecting the direct/collateral consequence dichotomy applies with equal force in determining the voluntariness of a guilty plea where the court has failed to advise the defendant of SORA registration, which is also a civil penalty “difficult to divorce . . . from [a] conviction.”…

Gravino’s certification as a sex offender was an automatic and immediate consequence of her conviction for rape in the third degree. Thus, I would hold that sex-offender certification is a direct consequence of Gravino’s guilty plea and, without informing Gravino that she would be subject to SORA certification, her guilty plea cannot be said to “represent[] a voluntary and intelligent choice among the alternative courses of action open to” her (North Carolina v Alford, 400 US 25, 31 [1970]).

Similarly, I would hold that a condition of probation that prohibits defendant Ellsworth from living with his children is a most significant and direct consequence of his guilty plea. I agree with the majority that “courts taking guilty pleas can not be expected to predict any and every potential condition of probation that might be recommended in the pre-sentence report” (majority op., at 15). It is hardly unforeseeable, however, that upon a conviction for course of sexual conduct with a child in the second degree, defendant would be forbidden, as a term of his probation, from living with or having contact with children, including his own.”