May 2002
Question
Does punishment of offenders reduce their re-offending?
Background
In the mid-1970s, there was a noticeable shift in criminal justice policy in the United States, and less markedly in Canada. Emphasis was directed away from offender rehabilitation programming toward punishment in order to control recidivistic crime. The use of incarceration increased substantially in many jurisdictions and sentences of imprisonment became longer. In addition to the increased use of incarceration, the last 25 years saw an explosion in the use of intermediate sanctions.
Intermediate sanctions represent a range of punishments falling between traditional probation and imprisonment. They include intensive probation supervision, electronic monitoring, boot camps and short periods of incarceration followed by intensive surveillance in the community ("shock incarceration"). Underlying these punitive approaches to criminal behaviour is the belief that criminal justice sanctions will deter offenders from re-offending.
Method
A meta-analytic review of the literature on the effects of criminal justice sanctions on recidivism was conducted. Meta-analysis provides a quantitative synthesis of the research literature and this method is widely regarded as superior to the more traditional narrative literature review.
The literature search identified 111 studies that examined the association between various criminal justice punishments and recidivism. Over 442,000 offenders were involved in these studies. The review included studies of imprisonment and intermediate sanctions. Noteworthy in the review were analyses of the findings with different types of offenders (e.g., juveniles, women, minorities).
Answer
The overall findings showed that harsher criminal justice sanctions had no deterrent effect on recidivism. On the contrary, punishment produced a slight (3%) increase in recidivism. These findings were consistent across subgroups of offenders (adult/youth, male/female, white/minority).
Compared to community sanctions, imprisonment was associated with an increase in recidivism. Further analysis of the incarceration studies found that longer sentences were associated with higher recidivism rates. Short sentences (less than six months) had no effect on recidivism but sentences of more than two years had an average increase in recidivism of seven per cent.
Intermediate sanctions demonstrated no relationship with recidivism. This category included studies of intensive supervision, fines, boot camps, electronic monitoring, scared straight, drug testing and restitution. Once again, no differential effects were found with respect to age group, gender and race.
Policy implications
Criminal justice policies that are based on the belief that "getting tough" on crime will reduce recidivism are without empirical support. Imprisonment and other criminal justice sanctions should be used for purposes other than reducing re-offending (e.g., incapacitation of dangerous offenders, denunciation of prohibited behaviour).
The lack of suppression effects across different offender groups indicates that applying sanctions selectively to specific groups is without merit. For example, imprisonment and intermediate sanctions were no more effective in reducing recidivism among youthful offenders than with adult offenders.
The ineffectiveness of punishment strategies to reduce recidivism further strengthens the need to direct resources to alternative approaches that are supported by evidence. Research based offender rehabilitation programs offer such a viable alternative for reducing recidivism. ..more..
Source
Smith, P., Goggin, C., & Gendreau, P. (2002). The effects of prison sentences and intermediate sanctions on recidivism: General effects and individual differences. (User Report 2002-01). Ottawa: Solicitor General Canada
November 28, 2007
The effects of punishment on recidivism
November 24, 2007
The Takings Clause
". . . nor shall private property be taken for public use, without just compensation. "
(Amendment V)
The drafter of this clause, James Madison, opined: “A Government is instituted to protect property of every sort . . . This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.” Against the proposition that the singular purpose of our government is the protection of property, there is the curiosity that the original Constitution scarcely mentions the term. Although at least two states demanded every other provision that we know today as the Bill of Rights, not one requested the Takings Clause. What explains the anomaly?
The beginning of an answer can be found in Alexander Hamilton’s observation that “the true protection of men’s rights are to be found not among old parchments, or musty records. They are written . . . in the whole volume of human nature . . . and can never be erased or obscured.” Alexander Hamilton was, of course, referring to the natural law, which is one of the doctrinal foundations of the United States set out in the Declaration of Independence.
As a matter of original understanding, the American Founders viewed the natural right to acquire or possess property as embedded in the common law, which they regarded as the natural law applied to specific facts. Thus, the Framers thought that there was little need to create a “parchment protection” against the states, which were, after all, carrying on the common-law tradition. Many early colonial and state charters had explicitly protected “the means of acquiring and possessing property” as part of the common-law rights of Englishmen brought over at the time of the first settlements. Nonetheless, Madison apparently believed that the federal government, which, of course, had no long-standing tradition of supporting property rights, should be explicitly restricted to follow the common-law form. It was not until the late nineteenth century that the clause would be judicially applied to the states through the Due Process Clause of the Fourteenth Amendment. Chicago, Burlington & Quincey Railroad Co. (1897).
Property is not, however, entirely a natural right. The Founders understood that it would need to be further defined in statute. Particular rights of sale or use might well vary from place to place. For example, Thomas Jefferson introduced legislation in Virginia that would abolish landed estates (so-called entails) that were inheritable only through limited bloodlines. Similar restrictions were present in the common law through the rule against perpetuities, which prevents an owner from leaving property with ultimate ownership uncertain for too long a period after his death.
Because the Fifth Amendment places a restriction on the ability and manner of taking property by the federal government, this begs a central question: what is the source of the federal government’s power of eminent domain in the first place? The states clearly had that power through their longstanding common-law tradition. How did the new federal government come to possess it as well? Two answers have been proposed. The first suggests that the power to take property is inherent in any sovereign. Jones v. United States (1883); Mississippi & Rum River Boom Co. v. Patterson (1878). Although Hugo Grotius, who coined the phrase “eminent domain” in 1625, disagreed, a sovereign in certain very limited—usually war-time—situations, has been allowed to take property without the obligation to compensate. In another rare circumstance, where property is physically taken, if the taking results in no net loss to the owner, compensation is not due. Brown v. Legal Foundation of Washington (2003). Putting these rarities aside, it is frequently said that the very institution of the federal government brings with it the power of eminent domain.
A second answer is that the federal power of eminent domain resides in, and is limited by, the Necessary and Proper Clause (Article I, Section 8, Clause 18), or by Congress’s implied powers as confirmed by the Necessary and Proper Clause. McCulloch v. Maryland (1819); United Statesv. Gettysburg Electric Railway Co. (1896). Under this perspective, Congress may exercise the power of eminent domain only in order to effectuate one of its delegated powers. Similarly, the executive is limited to property takings allowable only under Article II executive powers, but they are far more restricted. Youngstown Sheet & Tube Co. v. Sawyer (1952). Inasmuch as James Madison came to support and propose a Bill of Rights because he realized the range of congressional power under the Necessary and Proper Clause, and inasmuch as the Takings Clause is primarily his offering, such a reading has historical credence.
What changes to the definition of property, then, can the federal government—and since incorporation of the Fifth Amendment, a state or local government—legislate without offending the natural right to property that underlies the common law? Justice Oliver Wendell Holmes initially opined that regulation must not go “too far”: a judicial limit, but not a very formidable one. Pennsylvania Coal Co. v. Mahon (1922). Worse, the test actually looked at the wrong question. It focused on whether the regulation diminished the value of the property, rather than asking whether the regulation actually was consistent with common-law limitations on the use of property. The confusion between restrictions on use and diminution of value continues to affect the judicial interpretation of the clause.
So what limits have the modern cases placed on the regulation of property? In other words, what is “too far”? The Supreme Court easily determined that a regulation that authorizes the physical occupation of property was a taking. Loretto v. Teleprompter Manhattan CATV Corp. (1982). This categorical protection of the right to exclude emerged from the ancient protection against trespass. But Loretto’s significance was not great as a practical matter, because few regulations have the brazenness, short of formal condemnation, to authorize third parties to station themselves on other’s property. Occasionally, regulation comes close to outright physical occupation, by conditioning the grant of a governmental permit upon some forfeiture of a property interest. For example, one homeowner was told that he could expand his home, but only if he provided a beach easement to the public. Nollan v. California Coastal Commission (1987). Another was told that she could enlarge a retail plumbing store if she set aside property for a bike path. Dolan v. City of Tigard (1994).
In these cases, the Court has held that the Takings Clause prohibits the regulating agencies from using the permit process to leverage their governmental power to achieve what they wish without cost. To survive review, regulatory conditions must “substantially advance” a legitimate governmental interest and be reasonably “proportionate” to the external effects likely to be caused by the property owner’s proposal. In Nollan, the landowner was freed of the beach-easement requirement because it was unnecessary to the government’s stated purposes. In Dolan, the store owner did not have to facilitate the bike path, because, however desirable that might be, the need for it was not caused by the activity being regulated (the expansion of a plumbing store).
The Court has also applied the Takings Clause to invalidate regulations that deprive property of all of its economic use. Lucas v. South Carolina Coastal Council (1992). This, too, is a taking unless the regulation parallels the limitations in the background principles of the state’s law of property and nuisance. In Lucas, the desired property use was for residential construction, and the regulating state could not show that the common-law nuisance principles prohibited that use of the property.
The significance of the common-law/natural-right backdrop of property continues to shape constitutional doctrine. But what happens if modern regulation does not just mimic the common law but imposes far greater restrictions, based perhaps on modern environmental considerations? Recent judicial pronouncements indicate that the courts would regard at least a certain amount of environmental restriction as a reasonable extension of the common-law principle. But if one knowingly purchases land in a jurisdiction with an expansive environmental regime, the landowner is not automatically precluded from a takings claim. Rather, that knowledge is only one additional factor for the court to consider in judging whether the regulation can justifiably be considered a taking. Palazzolo v. Rhode Island (2001).
Other factual matters do play a significant role in keeping most takings cases out of court. State administrative and judicial determinations regarding the final application of regulations to individual parcels and the availability of compensation to owners are prolonged and expensive. Until these processes are completed, a “ripeness doctrine” prevents owners from seeking relief in federal court. Williamson County Regional Planning Commission v. Hamilton Bank (1985). The Court has occasionally expressed frustration with the bureaucratic games that result in protracted litigation, Monterey v. Del Monte Dunes at Monterey, Ltd. (1999), but most often property owners are turned away from the courts and told to keep working through the prescribed processes.
The most difficult Takings Clause cases are the most common ones. In these, the regulation has not physically invaded or precipitated a total loss, or even been employed to gain undue leverage. Rather, regulation reduces, often significantly but not totally, the economic prospects for property, and an owner asks to be compensated. The governing case here remains Penn Central Transportation Co. v. City of New York (1978). In Penn Central, which dealt with an ordinance that preserved a historic landmark by imposing a large loss on the property owner by forbidding construction of an office tower above it, the Court admitted that the takings issue was “a problem of considerable difficulty.” “There was,” said the Court, “no ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.” The Court admitted that in the typical case it would apply an ad hoc balancing test that would consider (1) the economic impact on the property owner, (2) the extent to which the regulation interfered with investment-backed expectations, and (3) the character or extent of the government action.
In the weighing of these factors, most property owners have lost their claims for compensation. A few have prevailed by recharacterizing the portion taken as a complete deprivation of a part, rather than a partial deprivation of a whole. The Court has said that, where there is a regulation that is terminated after a court has concluded that it constituted a taking, the owner’s deprivation during the temporary period in which the regulation was effective is compensable. FirstEnglish Evangelical Lutheran Church of Glendale v. County of Los Angeles (1987). However, whether a planned moratorium (even if it lasts for years) constitutes a taking must be determined by using the Penn Central multifactor test. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002).
Despite the frustration and cost of litigation of enforcing the Takings Clause, property owners remain indefatigable, and they are especially so when they perceive regulation to exceed a reasonable scope and invade that which may fairly be thought to be one of the natural rights of ownership. The ultimate purpose of the Takings Clause was well described by the Court more than forty years ago as “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States (1960). That is the central principle that prompted the Framers to add the Takings Clause to the Bill of Rights.
[Editors’ Note: In Kelo v. City of New London (2005) the city of New London planned to use eminent domain to acquire property for a redevelopment project that would replace existing private homes in good condition with private office space and parking lots. The property owners argued that the taking was not “for [a] public use,” and thus violated the Fifth Amendment. In a 5–4 opinion, the Court upheld the taking, holding that where a government presents a “comprehensive development plan” with “public benefits” that are not merely “incidental or pretextual,” the Court will apply a deferential, rational-basis–like standard to determine whether the asserted public benefit of the taking satisfies the public use requirement. In dissent, Justice Sandra Day O’Connor argued that taking of a private property for the benefit of another private party does not constitute public use, unless there is a direct public benefit, such as the elimination of a blighted area.]
See Also
Article I, Section 10, Clause 1 (Obligation of Contract Clause)
Amendment V (Due Process Clause)
Amendment XIV, Section 1 (Due Process Clause)
Suggestions for Further Research
James W. Ely, Jr., Property Rights in American History (1997)
Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain, 289–293 (1985)
Matthew P. Harrington, “Public Use” and the Original Understanding of the So-Called “Takings” Clause, 53 Hastings L. J. 1245 (2002)
Douglas W. Kmiec, At Last, the Supreme Court Solves the Takings Puzzle, 19 Harv. J.L. & Pub. Pol’y 147 (1995)
Douglas W. Kmiec, Inserting the Last Remaining Pieces into the Takings Puzzle, 38 Wm. & Mary L. Rev. 995(1997)
Douglas W. Kmiec, Land Use and Zoning Law (annually supplemented)
Douglas W. Kmiec, The Original Understanding of the Taking Clause is Neither Weak Nor Obtuse, 88 Colum. L. Rev. 1630 (1988)
Thomas G. Roberts, Taking Sides on the Taking Issue (2002)
Bernard H. Siegan, Property and Freedom (1997)
William Michael Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782 (1995)
Significant Cases
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
Mississippi & Rum River Boom Co. v. Patterson, 98 U.S. 403 (1878)
Jones v. United States, 109 U.S. 513 (1883)
United States v. Gettysburg Electric Railway Co., 160 U.S. 668 (1896)
Chicago, Burlington & Quincey Railroad Co. v. City of Chicago, 166 U.S. 226 (1897)
Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)
Armstrong v. United States, 364 U.S. 40 (1960)
Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978)
Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982)
Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985)
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304 (1987)
Nollan v. California Coastal Commission, 483 U.S. 825 (1987)
Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)
Dolan v. City of Tigard, 512 U.S. 374 (1994)
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687 (1999)
Palazzolo v. Rhode Island, 533 U.S. 606 (2001)
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002)
Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003)
Lingle v. Chevron, 125 S. Ct. 2074 (2005)
Kelo v. City of New London, 2005 WL 1469529, 2005 U.S. LEXIS 5011
Douglas W. Kmiec is Professor of Constitutional Law and Caruso Family Chair in Constitutional Law at the Pepperdine University School of Law. This WebMemo is taken from the The Heritage Guide to the Constitution, forthcoming this fall from Regnery Publishing. ..more.. by Douglas W. Kmiec
Takings of Private Property
The Issue: The Fifth Amendment provides that private property shall not be taken without just compensation. What actions of government constitute "takings"?
Introduction
The Takings Clause of the Fifth Amendment is one of the few provisions of the Bill of Rights that has been given a broader interpretation under the Burger and Rehnquist courts than under the Warren Court. It is a clause near and dear to the heart of free market conservatives.
Only certain types of takings cases present serious interpretive questions. It is clear that when the government physically seizes property (as for a highway or a park, for example) that it will have to pay just compensation. It is also clear that serious, sustained physical invasions of property (as in the case of low overflying aircraft, for example) require payment of compensation equal to the difference between the market value before and after the invasion. The difficult cases are generally those where government regulations, enacted to secure some sort of public benefit, fall disproportionately on some property owners and cause significant dimunition of property value.
The Court has had a difficult time articulating a test to determine when a regulation becomes a taking. It has said there is "no set formula" and that courts "must look to the particular circumstances of the case." The Court has identified some relevant factors to consider: the economic impact of the regulation, the degree to which the regulation interferes with investor-backed expectations, and the character of the government action. Still, as our cases suggest, there is a lot of room for argument as to how these various factors should be weighed.
Cases
Penn Central v. New York City (1978)
Dolan v. City of Tigurd (1994)
Lucas v. South Carolina Coastal Com'n. (1992)
Tahoe Preservation Council v Tahoe Regional Planning Agency (2002)
Kelo v City of New London (2005)
..more..
Takings: The Evils of Eminent Domain
The "takings clause" of the U.S. Constitution is the portion of the Fifth Amendment that says "nor shall private property be taken for public use without just compensation." It is one of the few parts of the Bill of Rights that authorizes the government to violate individual liberty, since under the takings clause, the government, exercising so-called eminent domain, can compel a person to sell his property. But although the framers unfortunately believed the government would sometimes have to compel the sale of property, they also were aware of the potential for abuse that government power always represents.
That skepticism about government power led them to put safeguards in the takings clause. First, property could only be taken for "public use." The phrase is vague. But the intention is clear: the government should not be allowed to take the property of one citizen merely to give it to another. Second, the framers required that owners be justly compensated. That requirement has problems. In the marketplace, we know what just compensation is. It is the price consented to by a seller and buyer. But under a forced sale, there is no just price because consent is lacking. The government must resort to proxies, such as the price agreed on for "comparable" properties. Comparables are often far from identical.
But like the "public use" criterion, the requirement of just compensation had two worthy intentions. First, it recognized that a property owner was not a servant of the state. If the government wanted his property, it had to pay him. Second, the compensation requirement would restrain the government. Obviously, if private property were free for the taking, the government would take much more than if it had to pay for it.
Unsurprisingly, the government has found a way around the safeguards. It has effectively taken private property for use other than public and without paying for it. How? Through regulations that restrict owners' use of their property.
For example, local zoning regulations tell people what they can and cannot do with their land. The federal government has increasingly used the Endangered Species Act (ESA) and the Clean Water Act (CWA) to stop owners from developing or farming their land. If an animal on the endangered species list lives on a property, it is against the law to destroy the animal's habitat. This has been the case with farmland in California that is home to the kangaroo rat, in Pacific Northwest forests that are home to the spotted owl, and with other private property. Under the Environmental Protection Agency's interpretation of the CWA, private "wetlands" (some owners claim their property is not really wet) are protected and may not be developed.
The government's policy has led to countless tragedies. Elderly couples who looked forward to retiring on the profit from the sale of property have suddenly found that their assets are worth little because the government prohibits development. In one case, a couple saw the value of their land drop from over $800,000 to $30,000 in one year after the government declared development illegal for environmental reasons. In another case, a man who spent $1 million for two South Carolina beachfront development properties was prohibited from building because a state commission thought undeveloped beach was better for tourism. The price of the land plummeted.
Unlike in eminent domain cases, the owners are not paid a penny in a "regulatory taking." (Congress is considering legislation that would require payment if the property value is reduced more than ten percent.) Government officials and environmentalists argue that no compensation is due because the owner retains title to the property. Thus, they say, no taking occurred.
The objection to that reasoning should be obvious. The framers could not have meant that a taking occurs only when the government acquires title. That would make the takings clause hollow. The government could avoid having to pay for any private property simply by prohibiting all uses except the one it seeks, while leaving title with the original owner. That is already happening. The city of Tigard, Oregon, required the owner of a hardware store to dedicate ten percent of his land for a bicycle path and open space in return for a permit to expand his store. (The case was appealed and the U.S. Supreme Court placed some restrictions on what a government can demand as a condition for a permit.)
The advocates of government land-use restrictions often argue that no compensation is due because the activity being suppressed harms others. They like to say that you are not due compensation because you are not allowed to use, say, your gun to murder someone. That argument assumes what it needs to prove. It is true that if you do not have the right to perform a specific act, then your forbearance should not be compensated. However, the question is whether destroying the habitat of the kangaroo rat or the golden-cheek warbler on one's own land violates anyone's rights. It is hard to see how it does. Some cases may be harder. If a landowner changes the typography of his land and, as a result, water runs onto his neighbor's land, that may be a rights violation.
But that is a matter for the courts, the common law, and the particular circumstances. A general policy that landowners may never develop a wetland or an endangered species' habitat is unjustified.
Environmentalists also argue that if the government has to pay when it restricts land use through regulation, it will not be able to afford to regulate. That, of course, is an argument for the application of the takings clause to regulatory restrictions. Until now, there has been little to brake the regulatory juggernaut. If the regulators have to worry about how the taxpayers will react, perhaps they will not be so eager to interfere with private property. If the framers intended the takings clause to restrain government activity, then there is no reason to think that its regulatory activity should not also be restrained. The framers were worried about government's general penchant to cause mischief and not just outright seizure of property.
Opponents of the notion of compensation for "regulatory takings" pose as friends of the taxpayers and of budget restraint. They say they are trying to save the public money by fighting the property rights movement that has sprouted in reaction to the Endangered Species Act and other government intrusions. Saving the taxpayers money is a noble cause. But there is more than a dash of hypocrisy here. Their method of sparing the taxpayers is to allow the government to restrict the use of private property by fiat — even if owners lose all the value of their land.
It should be understood that a landowner's right is in the physical property, not its value. The value — or market price — is the result of other people's estimation, which cannot be owned. If someone's land falls in value from $1 million to $500,000 as a result of voluntary action (changes in consumer tastes or in the surrounding area, for example), no rights have been violated. One cannot own a particular set of market conditions. Thus, when government restrictions on the use of private property cause the value to fall, the government's offense is not theft of value. That is merely the result of the government's real offense: the restriction on the owner's peaceable actions, which is enforced, ultimately, at the point of a gun.
It we apply the principle of liberty to the takings issue, we easily see that, in fact, taxpayer compensation for regulatory takings is not the right solution to this problem. It may have the beneficial effect of restraining government activity. But there is no justice in forcing taxpayers to compensate property owners for theft committed by bureaucrats. That merely substitutes one act of theft for another. The real source of the crime is the takings clause itself. It violates individual liberty, and the only corrective is to amend the Constitution and get rid of it. The government should never be able to compel a person to sell his property.
Respect for property rights, which unfortunately was always less than 100 percent, has been in a free fall since the New Deal, when the Supreme Court said that the Constitution contains two kinds of rights: fundamental (speech, press, assembly, religion) and nonfundamental (property). The New Deal court actually upheld the government's authority under the interstate commerce clause , to stop a farmer from growing wheat on his own land for his own use.
Of course, the Constitution has no such division of rights, and property is specifically protected in several places. The reassertion of the right to property is one of today's brighter developments. The property rights movement should be encouraged in every way because property rights are the key to limiting the power of government. But a true property rights movement should not stop short of calling for eradication of the takings clause. That is the root of all evil in this matter. ..more.. by Sheldon Richman
November 23, 2007
Lawyer challenges to federal sex registry
11-23-2007 Indiana:
VALPARAISO | Local attorney Bryan Truitt is challenging the constitutionality of a federal sex offender registry law, in part on the grounds it illegally treads on rights reserved for the states.
The Sex Offender Registration and Notification Act, which requires sex offenders to keep their registration current no matter where they live, is invalid under the 10th Amendment because it has not been adopted by most states, including Indiana, Truitt said.
The requirements also have nothing to do with interstate commerce and thus Congress has no power to require the rules be implemented by the states, he said.
Truitt further accused Congress of improperly delegating to the attorney general the power to decide how to apply the law to defendants accused of violating the requirements before they took effect. This is the case with his client, who is accused of violating the registry law before it took effect July 27, 2006.
"These are decisions of Congress," he wrote.
Truitt filed the challenge before U.S. District Court Chief Judge Robert Miller Jr. on behalf Marcus Dixon, who is accused of failing to register as a sex offender when he cut an electronic monitoring bracelet off his ankle and moved from South Carolina to Michigan City during May 2006. He now faces up to 10 years behind bars, as compared to 90 days under South Carolina law and up to one year under the former federal law.
A bench trial is scheduled in the case Dec. 20, which means Miller should rule on the motion to dismiss before that time, Truitt said.
In addition to challenging the overall Constitutionality of the law, Truitt argues the case against his client should be dismissed because Dixon was never made aware of the new registration requirements. The requirements have also never been adopted by either Indiana or South Carolina and it was "therefore impossible for Dixon to have registered." ..more.. by BOB KASARDA
bkasarda@nwitimes.com
Does fake child porn do real children harm?
11-15-2007 Canada:
Suppose the following scenario:
Willy the webcam client: i’m so hard for u, bb, i wanna lose my virginity again, like when i was 16yo…
Crystal-Eyes the webcam girl: oh yeah, bb – how do you want it to go down?
Willy: tell me your name is suzy and you’re 14yo and you want me to pop your cherry
Crystal-Eyes: that sounds really hot but … although you don’t reasonably think I’m a minor and although this interaction is only through the internet, bb…according to subsection (a)(i) of section 163.1 of the Canadian Criminal Code, depicting myself as being under the age of 18 and engaging in, or depicting myself as engaging in, explicit sexual activity constitutes child pornography and I could be arrested… bb.
Willy: fuck - i just lost my boner
Ouch! While Willy’s boner goes down and Crystal-Eyes is legislated out of making an honest living, politicians can feel good about themselves for passing some of the strictest child porn laws in the world.
Since the 2002 passage of Bill C-15A, definitions of child porn have broadened. Naturally, it is an offense to depict actual minors in sexually explicit acts, but it is also an offense to show adults pretending to be minors engaging in sexually explicit activity. Now, visual representations of child porn include “a photographic, film, video or other visual representation, whether or not it was made by electronic or mechanical means.” These visual representations include depictions of real children, as well as computer images, sculptures, paintings, and drawings. This means a computer-generated image of a digital “child” engaged in sexually explicit activity constitutes child porn.
Additionally, a written story, play, or any textual representation can be considered child porn if it “counsels” or “advocates” sex with a minor. The act of possessing and accessing child porn is also an indictable offense. The bill does allow for defenses of “artistic merit,” and material that serves an “educational, scientific or medical purpose.”
But should Willy and Crystal-Eyes be denied their fantasy role-playing? The prevailing thought behind such sweeping definitions of child porn is that, even if actual children are not involved in the production, real children are harmed nonetheless. We assume this is true – but, surprisingly, there is little concrete evidence to support this.
In passing this law, Parliament was not required to establish objective scientific evidence that the possession of child porn causes harm to actual children, even if it does not depict actual minors. This thinking is fourfold. Possessing child porn is harmful because: 1) child pornography promotes cognitive distortions by normalizing child abuse in the minds of pedophiles; 2) it fuels fantasies that incite offenders to offend; 3) it is used for grooming and seducing victims; and 4) children are abused in the production of child pornography involving real children.
Child pornography that involves flesh-and-blood children is obviously wrong and causes harm in its production, dissemination, and consumption. But does it necessarily follow that fake, computer-generated images are also harmful, especially if only created for personal use? Does viewing fake child porn necessarily lead to pedophiliac acts?
Scientific fact is limited. According to a 2003 cbc.ca article, “Various studies have shown that between 35 - 50% of child porn collectors have a history of abusing children.” I assume that these studies are available, but I could not locate them. All I could find were contradictory reports from child-advocacy organizations. So I turned to Canadian court judgments to inform my assessment.
In the 1999 ruling on R. v. Sharpe, BC Supreme Court judge Shaw J.’s review of literature linking possession to harm found little scientific evidence to support such claims. When R. v. Sharpe was appealed before the Supreme Court of Canada in 2001, the issue of how much much proof is required to demonstrate harm was raised again. Is “scientific proof based on concrete evidence” necessary? Or is “a reasoned apprehension of harm” all that is required? In the end, the 2001 ruling agreed with Parliament’s reasoned apprehension. But the discussion in itself points to the difficult of finding reliable evidence to justify a limit on simulated child pornography.
This is hard for most people to accept. In the Toronto case of Michael Briere, who pled guilty to the 2003 first-degree murder of Holly Jones, the crown held that Briere was encouraged to act after viewing child pornography. The defendant agreed. Numerous child protection agencies support claims that the increase in internet child porn online has resulted in increases in child abuse.
However, where no conclusive evidence can be found, how can we criminalize fantasy and the creative expression of this fantasy, especially when it does not involve actual children and is intended for private use? The Charter of Rights and Freedoms clearly sets out protection for freedom of expression. This freedom includes popular thought, but also includes unpopular – even abhorrent and despicable – thought.
We can advocate for child safety online, but we should not make legislation until we can accurately gauge the harm done to society. I do not know whether viewing simulated child porn leads to abusing children. But I do know that we should not criminalize a person based on unclear and contradictory evidence. ..more.. by Brianna Hersey
November 22, 2007
Studies question sex-offender restrictions
7-23-2007 Colorado:
It all began in 1999 when five men dutifully went to the Lakewood Police Department to register as sex offenders.
Each gave the same address, which grabbed the attention of city officials, who quickly took action to close the house. Soon the City Council passed an ordinance permitting only one sex offender to live in a house in a residential area.
Lakewood's approach spread like wildfire, with 16 other metro- area cities promptly passing similar regulations.
But governments that passed laws over the past few years to keep sex offenders from living in group homes in their jurisdictions may have done so at the cost of public safety.
A number of studies, including one released last month by the Colorado Division of Criminal Justice, conclude that restricting where offenders may live does not prevent repeat sex crimes.
Instead, the restrictions encourage sex offenders to "disappear," blending into communities where they live in the privacy essential to committing new sex crimes, the studies say.
"Frankly, sex offenders like being told they can't be around other sex offenders," said Greig Veeder, executive director of Teaching Humane Existence, a sex offender treatment program. "It ruins their privacy. They can't commit their crimes unless they have privacy."
Colorado has more than 10,500 registered sex offenders. More than 3,000 live in the metro area. As of last week, Denver had 1,337 registered sex offenders.
Sex offenders generally have a high rate of recidivism - 18.9 percent for rapists and 12.7 percent for child molesters over a period of five years, the Colorado study reported.
"But recidivism only reflects crimes that are reported," said Kim English, research director for the Colorado Division of Criminal Justice, an arm of the state Department of Public Safety.
"We know that most victims of sex crimes never report the crime," English said. "What we do know is that known sex offenders are more likely than other criminals to commit another sex crime."
by eAdvocate:
None of the recidivism rates quoted by Ms. English appear anywhere in the "Colorado Study," so it is impossible to know where she got them from or to verify them.
However, according to the Dep't of Justice study, following release from prison and for three years thereafter, 5.3% of sex offenders were re-arrested for a new sex offense, and 3.5% of them were re-convicted.
QUOTE: Child molesters and statutory rapists:
"After their release, 5.1% (221 men) of the child molesters and 5.0% (22 men) of the statutory rapists were rearrested for a new sex crime (table 22). Not all of the new sex crimes were against children. The new sex crimes were forcible rapes and various types of sexual assaults.
Following their release, 3.5% (150 men) of the 4,295 released child molesters were convicted for a new sex crime against a child or an adult. The sex crime reconviction rate for the 443 statutory rapists was 3.6% (16 reconvicted men)."
Further, the same DOJ report showed that non sex offenders released from prison committed six times the number of sex crimes than did sex offenders released. See the following chart from that study (Click):
Then Ms. English says "We know that most victims of sex crimes never report the crime," which is what folks say when they have no support for their statements. If that were true then there are over 600,000 registered sex offenders -in national registries- which are registered why?
'Snakes in a basket'
What keeps that from happening is having sex offenders living in a structured environment with close supervision by professionals and observation by their peers, English said.
"Residency restrictions prevent us from having sex offenders living together," Veeder said, "but 25 years of my experience and significant research all support that the more you can make them live together, the easier it is to control them.
"It's far better to have snakes in a basket than running around loose in the yard."
The Colorado research, based on a 2004 survey of sex offenders, found that high-risk sex offenders living in shared living arrangements had significantly fewer probation and criminal violations than those living in other living arrangements.
Violations also were more quickly reported because of the heightened peer and professional oversight. Quick reporting is essential for speedy action to protect potential victims, the study noted.
"Offenders hold each other accountable for their actions and responsibilities and notify the appropriate authorities when a roommate commits certain behavior, such as returning home late or having contact with children," the 2004 Colorado report said.
The study found that sex offenders living with their families re-offend or violate probation at twice the rate of high-risk sex offenders living with other offenders.
by eAdvocate
The 2004 study was of sex offenders participating in 3 different treatment programs offered by Colorado. Most important is, all were on parole or probation, and due to the treatment programs were forced to live in those arrangements. The study never compared the results to sex offenders who were NOT on parole or probation, who do not live together by choice although are sometimes forced -due to residency restrictions- to live in close proximity to each other.
Accordingly those results cannot be applied to the class of sex offenders in society. Further, the Colorado definition of "violation" can be as simple as standing outside after curfew, technical types of violations. These are not crimes.
Residency restrictions often force sex offenders to "go underground," registering their residence at a shelter or motel where they stay only temporarily.
Temporary address
In 2006, the Salvation Army's Crossroads Shelter caused concern among some Denver officials because more than 50 registered sex offenders were living at the shelter, at least temporarily.
Salvation Army Maj. Neal Hogan said the shelter's ministry is to serve the homeless, but that sex offenders - and others released from prison - stay at the shelter when they have no place else to go.
"We don't seek them out," Hogan said, adding that Crossroads would happily refer them to a shelter designed to handle sex offenders. "But we don't know of any services that exist for that purpose."
Last week, 66 sex offenders were registered at the shelter's address, but Hogan said that number is misleading because people frequently move on while the shelter address remains on official records.
Hogan said the shelter keeps in close contact with the police department, alerting them to new residents, those who have left and those who gave the shelter as their address but never showed up.
"The numbers can be somewhat skewed," he said. "It's a convenient address for them to use."
Colorado has no state laws restricting residency of sex offenders, though probation and parole officers must approve residency and keep sex offenders away from schools or other high-risk situations, English said.
Though Veeder and English say restrictions like those that swept through the suburbs beginning in the late '90s work against public safety, parents don't want sex offenders living in their neighborhoods.
"I was absolutely shocked when I found out," said Lori Housel, who lived next door to the house where the five sex offenders were living in 1999. Housel said she had two teenage boys who were left alone at times.
"It made me sick to my stomach," she said. "I don't think they should be in a residential area with young children, whether they are supervised or not."
An offender's view
R.P., a sex offender who says he was among the "Lakewood Five," said the reaction of neighbors and city officials, though understandable, was frightening.
"At that time, I was really scared, getting thrown into the spotlight like that," he said. He and his roommates were yelled at and received threats, he said.
He said he understands why people who hear about a "horrendous crime" by a sex offender want him locked up forever, but "people forget there are a lot of shades of gray."
He spoke on the condition that his full name not be used out of fear of retaliation.
After the men were forced to leave the Lakewood house, he moved to another home with several sex offenders.
R.P. completed his five-year probation three years ago, but has continued to live in the shared living arrangement and take part in therapy sessions with Veeder's group.
"SLAs (Shared Living Arrangements) are a very good thing to help sex offenders get hold of their issues - you can't avoid therapy," he said. "In general, it forces guys to be more honest and live a much straighter life."
The Colorado study concluded that a "tight web of supervision, treatment and surveillance" - like that offered by shared living arrangements - was more important in maintaining public safety than where a sex offender resides.
Colorado is one of the few states where shared living arrangements are used, English said. It also is one of the few states that uses polygraphs to monitor sex offenders and requires lifetime supervision of some.
English said none of the 15 new crimes committed by the 130- member study group involved sexual contact, and most were identified through polygraph examinations. Only one was detected by law enforcement. Two were reported by group members and one man reported himself.
"The way we manage sex offenders is so tight, it is a real success story," English said.
Twenty-two other states have passed laws creating buffer zones around schools, child-care centers and playgrounds where sex offenders can't live. Again, researchers say there is no evidence to show that these restrictions prevent sex crimes.
A 2007 Minnesota Department of Corrections study of new offenses committed by known sex offenders concluded that none would have been prevented by a boundary restriction.
Most of the 224 sex offender recidivists surveyed for the study found their victims through another adult, and none made contact with a child near a school, park or playground.
"It is unlikely that residency restrictions would have a deterrent effect because the types of offenses such a law is designed to prevent are exceptionally rare and, in the case of Minnesota, virtually nonexistent over the last 16 years," the report said.
Colorado has no state buffer zone law, though there have been several unsuccessful attempts to pass one. Some local governments, however, have adopted such measures.
These laws are ineffective because sex offenders most often prey on a victim they know, English said.
"We keep passing public policy as if these are 'stranger' crimes, but most are not," she said. ..more.. by Sue Lindsay, Rocky Mountain News
Law May Cost 76 Workers Their Jobs
11-21-2007 Florida:
LAKELAND | The Polk County School District may have to fire up to 76 employees to comply with the Jessica Lunsford Act, which prohibits people who have been convicted of certain criminal offenses from working on school campuses with children.
Many of the people are janitors, bus drivers or maintenance workers who earn meager wages, have limited contact with children, and arrest records from old cases that stem from theft, robbery or vandalism.
That's why school officials and board members don't like the new law.
"These are likely our most vulnerable and lowest paid," said board member Brenda Reddout. "They are the least likely to find salary and benefits."
"It means you can't make a mistake when you're young," said Bruce Tonjes, associate superintendent. "It's upsetting to people who think they have put something behind them."
Board member Margaret Lofton said that officials should address the Legislature about the law.
"People who have been faithful employees for many years will be getting pink slips," Lofton said.
Board officials have notified the employees and are attempting to find some of them jobs at different hours that would eliminate their interaction with children.
Tonjes said many of the janitors and a paraprofessional enjoy working and talking with the students.
The Jessica Lunsford Act swept through the Legislature in 2005 after 9-year-old Jessica Lunsford was kidnapped and killed near her Homosassa home. John Couey, the man convicted of killing her, is a registered sex offender.
The act may affect people like Martha Belmares, a school janitor with a nearly 30-year-old shoplifting transgression. Belmares, 52, was arrested in 1980 and charged with felony grand theft after she was caught shoplifting $110 worth of clothing from a Winter Haven department store.
For her crime, Belmares paid a $500 fine, served two days in jail and three years of probation.
Belmares was fired, but a hearing officer in June recommended restoring her old job as night janitor at Fort Meade Middle /Senior High School.
Because a hearing officer made the determination, School Board attorney Wes Bridges said that Belmares will not be one of the 76 fired.
After the Belmares case, Bridges had asked state Attorney General Bill McCollum to clarify whether the district must fire employees for criminal misdeeds committed years ago. The board also wanted to know whether it may grant exceptions to the law.
In response to Bridges' questions, McCollum did not grant any relief.
"I am of the opinion that all non instructional school district employees who are permitted access on school grounds when students are present, who have direct contact with students, or who have access to or control of school funds must meet level 2 screening requirements as described in section 435.4, Florida Statutes," McCollum wrote.
Tonjes said that human resources is working with each employee on a case-by-case basis. Like Belmares, the fired employees will be given the option to have a hearing before an officer.
The School District employs about 14,000 people.
Bridges called the statute "onerous."
"They could be model employees for 20 or 30 years but something could have happened in the '70s or '80s," Bridges said. ..more.. by John Chambliss can be reached at john.chambliss@theledger.com or 863-802-7588.
November 21, 2007
Hate Crime Statistics
Following passage of the Hate Crime Statistics Act of 1990 and at the request of the Attorney General, the FBI has gathered and published hate crime statistics every year since 1992. The following reports are available on this website:
• 2006
• 2005
• 2004
• 2003 (pdf)
• 2002 (pdf)
• 2001 (pdf)
• 2000 (pdf)
• 1999 (pdf)
• 1998 (pdf)
• 1997 (pdf)
• 1996 (pdf)
• 1995
FBI Hate Crimes Site
November 20, 2007
COLORADO: Sex Offender Management Board (SOMB) SEX OFFENDER RISK SCALE (SORS)
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Evaluating and Improving Risk Assessment Schemes for Sexual Recidivism: A Long-Term Follow-Up of Convicted Sexual Offenders
March 2007 217618
EXECUTIVE SUMMARY
Risk assessment plays a central role in the management of sexual offenders in the criminal justice system, impacting every level of decision-making. The specification of which offenders should be included in state registration or community notification, the distribution of treatment opportunities in prison, the determination of parole eligibility, the allocation of resources in monitoring and supervising offenders in the community, and the ultimate decision to remove the most serious offenders from the community through civil commitment all involve critical choices involving risk. The serious consequences to potential victims, to those offenders who no longer pose a threat to the community, but are denied their civil liberties, and to critical community funds that may be squandered as the result of inaccurate decisions all demand the guidance of the most accurate actuarial algorithms available. Because decisions must be made—even doing nothing constitutes a decision—to choose not to employ the most accurate decision-making algorithms is to choose to pay the costly price of a suboptimal decision.
The aim of the present study was to evaluate and to improve the decision-making algorithms that have been generated to assess risk in sexual offenders. More specifically, it was the task of this research project to evaluate the extant actuarials in a sample of sexual offenders on whom long-term follow up were available. We assessed the comparative accuracy of the major risk instruments over time and over subsamples, explored their underlying factor structure, examined the accuracy of a new assessment protocol (SRA Need Assessment; Thornton, 2002), and explored the potential for generating improved predictive instruments.
In a prior study we (Knight, 1999; Prentky, Knight, & Lee, 1997) had followed 599 offenders who had been referred to the Massachusetts Treatment Center (MTC) for evaluation between 1959 and 1984. Of these 266 (Bridgewater Treatment [BT] sample) had been committed to MTC as “sexually dangerous” and subsequently released, and 333 (Bridgewater Observation [BO] sample) had been determined not to be sexually dangerous and returned to finish their sentences. Of the 333 BO offenders 200 constituted a matched sample (on age at evaluation, marital status, and number of prior crimes) and 200 were randomly sampled from the entire sample BO population evaluated. There was an overlap of 67 offenders selected by both the random and matched process. For all these offenders we had accessed and integrated four outcome record sources, including the Massachusetts Board of Probation records, the Massachusetts Parole Board records, the Massachusetts Treatment Center Authorized Absence Program records, and the Federal Bureau of Investigation (FBI) records.
In the present study we accessed the archival clinical files for these offenders and coded these records both on modern empirically-derived, mechanical actuarials that have been developed since 1997 for predicting sexual recidivism, including the RRASOR (Hanson, 1997), the Static-99 (Hanson & Thornton, 2000), the Static-2002 (Hanson & Thornton, 2003), the SORAG (Quinsey, Harris, Rice, & Cormier, 1998), the MnSOST-R (Epperson, Kaul, Huot, Hesselton, Alexander, & Goldman, 1998), and the Risk Matrix 2000 (Thornton et al., 2003), on two structured clinical guidelines, the SVR-20 (Boer, Hart, Kropp, & Webster, 1997) and the A-SOAP-II (Prentky & Righthand, 2003), and on a new experimental measure, the SRA Needs Assessment (Thornton, 2002). Offenders were also categorized in the Massachusetts Treatment Center Rapist (MTC:R3) and Child Molester (MTC:CM3) typologies and diagnosed according the DSM-IV Antisocial Personality Disorder and Conduct Disorder criteria. All codings and judgments were carried out without any access to or knowledge about the follow-up status of the offenders.
The final report addressed six basic questions. We summarize the findings for each using this framework: ..more.. by Raymond A. Knight, Ph.D. ; David Thornton, Ph.D.
November 19, 2007
Convicted sex offenders registering as homeless
11-18-2007 National:
More than three dozen states allow convicted sex offenders to register with police as homeless or transient, or list shelters or imprecise addresses. This list provides a partial picture based on each state's sex offender registry or interviews with state officials in October and November.
Some offenders are listed as "absconders" or "non-compliant" because they gave police fake addresses or did not register. Where statewide registry figures are unobtainable, city numbers are given.
Alabama: 59 unknown addresses
Alaska: 23 homeless, 130 unknown addresses
*Arizona: 152 homeless; in Phoenix, 23 homeless/transient, 209 unknown addresses and 255 absconders
*Arkansas: 170 unknown addresses
*California: 2,622 transient
Colorado: 31 homeless/transient, 17 unknown addresses, 807 failed to register
*Connecticut: 64 currently or recently homeless, 507 non-compliant
*Delaware: 58 homeless, 78 non-compliant
*District of Columbia: can register at shelters, 31 non-compliant
Florida: can register as homeless; in Miami, 39 homeless/transient, 140 absconders
Georgia: 2 homeless, 492 absconders
Hawaii: 43 homeless, 650 non-compliant
Idaho: 47 homeless/incomplete addresses
*Illinois: 110 homeless, about 1,300 non-compliant; in Chicago: 33 homeless, 98 unknown addresses
*Indiana: cannot register without specific address
Iowa: can register without permanent address; in Des Moines, 8 homeless, 20 unknown addresses
Kansas: 30 absconders
*Kentucky: can register at shelters or churches; in Louisville, 61 non-compliant
*Louisiana: need permanent address to register; in New Orleans, 258 non-compliant (42% of total)
*Maine: can register as transient, but no data provided
*Maryland: 5 homeless, 536 non-compliant
Massachusetts: can register without permanent address; in Boston, 49 homeless/shelter, 29 unknown addresses
*Michigan: 62 homeless, about 10,000 non-compliant
*Minnesota: 59 homeless; in Minneapolis, 9 homeless
*Mississippi: 5 homeless
*Missouri: 22 homeless, 51 unknown addresses
*Montana: 17 transient, 67 non-compliant
*Nebraska: 7 transient, 108 absconders
*Nevada: about 130 homeless, 1,935 non-compliant
*New Hampshire: 27 non-specific addresses, 212 non-compliant
New Jersey: 35 "fugitives" with unknown addresses
New Mexico: 4 homeless, 49 absconders, at least 180 non-specific addresses
New York: can register without permanent address; in New York City, more than 100 at two homeless shelters
North Carolina: 12 unknown/non-specific addresses
North Dakota: 19 unknown/absconders, many list P.O. boxes
Ohio: can register without fixed address; in Akron, 11 homeless
Oklahoma: 544 P.O. boxes only, 839 unknown addresses
*Oregon: at least 100 homeless; in Portland, 14 homeless/non-specific addresses
*Pennsylvania: cannot register as homeless, 586 non-compliant
Rhode Island: 9 unknown/non-permanent address
South Carolina: cannot register as homeless; in Charleston, 22 failed to register
South Dakota: 3 homeless/transient, 21 unknown addresses
*Tennessee: 122 homeless; in Nashville, 17 homeless/non-specific addresses; 29 unknown
*Texas: can register as transient but no state tally provided
*Utah: cannot register as homeless
*Vermont: 6 homeless, 48 "wanted" for failure to register
*Virginia: 225 "wanted" for failure to verify address; in Richmond, 2 homeless/shelter, 4 unknown addresses
*Washington: 564 homeless, 1,311 failed to verify addresses
West Virginia: 8 unknown addresses, at least 21 without specific addresses
*Wisconsin: cannot register as homeless, 10% non-compliant
Wyoming: 9 transient, 6 non-specific addresses, 99 non-compliant
* — Based on interview with state official. ..more.. by Wendy Koch.
Homeless sex offenders' isolation can add to problem
11-19-2007 National:
Elliott Bloom, a convicted sex offender, lived in his car for nine months this year, parked on a street corner in Miami.
"I just pulled the chair back to sleep," says Bloom, 30, a chef-in-training who was convicted two years ago for having sex with a 15-year-old girl.
TRACKING OFFENDERS: More sex offenders harder to monitor
LIST: Registered sex offenders by state
He had a tough time finding an apartment because state law bars him from living within 1,000 feet of places children gather, putting most of Miami off-limits. He listed his address on the mandatory registry of sex offenders as "transient.
In Richmond, Va., Keith Francis registered his address as "under Canal Bridge." Francis, 51, convicted in Florida in 2001 of luring a minor he met online, says, "I put plastic down and have a few blankets."
Francis works temporary jobs but says he doesn't have enough money for an apartment. He says he could probably go to a homeless shelter, but, "I used to be a Boy Scout. I like to camp outside."
Nationwide, thousands of sex offenders like Bloom and Francis are registering as homeless or giving police vague addresses such as highway mile markers.
Some blame the residency restrictions that keep offenders away from youngsters. Others cite lack of money or rejection by landlords after background checks reveal their criminal record. "As sex offenders are more and more in the media, people are starting to think twice before renting to them," says Patty Morris, supervisor of sex offender compliance at the Arizona Department of Public Safety.
'The modern-day lepers'
Many sex offenders lack jobs or family support, says Jo Ellyn Rackleff, spokeswoman for the Florida Department of Corrections. She sees more of them becoming homeless, and that worries police.
"A homeless sex offender is a much more dangerous sex offender," says Elizabeth Bartholomew of the Maryland Division of Parole and Probation.
They are less likely to receive mental health care and substance abuse treatment and are more difficult to monitor, says Jill Levenson, a sex-crimes policy analyst at Lynn University in Boca Raton, Fla.
"Being homeless is also demoralizing," Levenson says.
Sex offenders are likely to behave better if they have a stake in their community and "something to live for," says psychiatrist Fred Berlin, founder of the Johns Hopkins Sexual Disorders Clinic. Sex offenders are increasingly being shunned and isolated. "They are the modern-day lepers," he says.
David Finkelhor, director of the Crimes Against Children Research Center at the University of New Hampshire, says research on criminals suggests that having an unstable home makes them more likely to commit another crime.
"How much it increases the risk is hard to say," says Finkelhor, who questions the value of residency restrictions. "Homelessness and all the stresses that go along with it is more of a risk factor than being in a neighborhood with children."
At least 27 states and hundreds of cities have passed laws in the past decade to restrict where sex offenders live.
The laws don't necessarily keep sex offenders away from kids, says Florida's Rackleff. "What people don't realize is these offenders are in our communities," riding buses and walking around, she says.
"It's a waste of resources to check where they're sleeping," says Corwin Ritchie, executive director of the Iowa County Attorneys Association. He says sex offenders may sleep in one place and spend their days elsewhere. He says it is better to monitor where they go.
States are increasing their use of electronic devices, often attached to an ankle or belt, to monitor sex offenders. California has 2,300 Global Positioning System units for paroled sex offenders but plans to have10,000 for all parolees by June 2009, says Bill Sessa of the California Department of Corrections.
Housing in Washington, D.C., is so expensive that a third of parolees lack permanent housing, and many homeless sex offenders considered high-risk are tracked with GPS devices, says Leonard Sipes, spokesman for the Court Services and Offenders Supervision Agency.
Keeping track by satellite
"We need to know where these offenders are," says Ernie Allen, president of the National Center for Missing & Exploited Children. He says the effect of residency restrictions has varied nationwide, but states are putting more resources into tracking sex offenders.
States report widely varied information on online sex offender registries. Many states allow sex offenders to be homeless but require them to report a location, even if it's a shelter or "under a bridge."
"People will use homelessness as a way to evade monitoring," says Melissa Roberts of the Wisconsin Department of Corrections.
Several states see a rising number of homeless sex offenders. In Connecticut, 46 are registered as homeless or at shelters, up from fewer than a dozen three years ago, says Sam Izarelli of the state's sex offender registry.
"I've seen an increase in homelessness," says Paula Stitz, manager of Arkansas' registry. "It's difficult for a lot of these sex offenders to find a place to live." She says one person lived in a van under the Broadway Bridge in Little Rock for two years.
In Miami, Bloom says he and his pregnant girlfriend finally found an apartment that complied with state and local residency restrictions and moved in last week. He may not be staying long. Unless the therapist he sees as a condition of his probation gives approval, he will have to move out once the baby is born. ..more.. by Wendy Koch, USA TODAY
Many sex offenders are often homeless
11-18-2007 National:
Thousands of convicted sex offenders are reporting to police that they are homeless, raising concerns that their lack of a permanent address could make them difficult to track, a USA TODAY analysis shows.
Sex offenders, who are required to register with police and often barred by law from living near places where children gather, list addresses such as a tent, "near a bike path," "behind a cemetery" or "woods behind Wal-Mart."
OFF THE MAP: Homeless and dangerous
LIST: Registered sex offenders by state
In Boston, nearly two-thirds of 136 high-risk sex offenders lack permanent addresses. In New York City, more than 100 registered at two homeless shelters. In Miami last month, 22 reported living under the Julia Tuttle Causeway that links the city to Miami Beach.
"People should be concerned about this," says Jill Levenson, sex-crimes policy analyst at Lynn University in Boca Raton, Fla. She says homeless sex offenders are more likely to commit another crime.
USA TODAY reviewed each state's sex-offender registry, searched tens of thousands of addresses and interviewed officials in 45 states after contacting all states. The analysis shows:
•Two-thirds of the states allow convicted sex offenders, including violent predators, to register as homeless or list a shelter or inexact location as long as they stay in touch with police.
•At least a dozen states list hundreds of sex offenders without specific addresses. California registered 2,716 as "transient." Washington state listed 564 as homeless, but the number is probably much higher, says Carolyn Sanchez of the Washington State Patrol.
•Arkansas, Connecticut, Florida, Illinois, Maine and other states say the number of homeless sex offenders is rising. Landlords often won't rent to them, and laws in dozens of states and hundreds of cities bar them from living near areas where kids play.
"Residency restrictions are the linchpin for causing homelessness among sex offenders," says Frances Breyne of the Kansas Department of Corrections.
In California, about 500 have registered as "transient" since a law last year blocked them from living within 2,000 feet of a school or park, says Bill Sessa of the California Department of Corrections. They must report daily where they'll spend the night.
An exact count of convicted sex offenders who are homeless could not be done because not all state records are online. Some states do not list homeless as an address but allow shelters, post office boxes, highway mile markers and streets without house numbers.
Illinois prefers that an offender register as homeless and report weekly to police rather than register once a year and list a shelter where he might stay one night, says Cara Smith, deputy chief of staff to the attorney general.
Some states keep sex offenders locked up until they find housing. In Michigan, they are less likely to get parole than murderers, says Russ Marlin, spokesman for the state Department of Corrections. In Georgia, sex offenders can be arrested for being homeless.
Homeless sex offenders are not necessarily more dangerous than those with housing, says Laura Rogers, director of the Justice Department's office for tracking sex offenders.
She says, "The people you need to be worried about most are the ones who aren't registering at all." ..more.. by Wendy Koch, USA TODAY
November 17, 2007
Paradigms of Restraint
2007
Abstract:
Incapacitation of dangerous individuals has conventionally entailed the exercise of physical control over an actual body: the state confines the person in jail. But advances in technology over the past ten years have changed that convention. A variety of new technologies - such as GPS tracking bracelets, biometric scanners, online offender indexes, and DNA databases - now vest the government with the power to control dangerous persons without relying upon any exertion of physical control. The government can engage in constant real-time location tracking, receive remote notification that an individual has ingested alcohol, or electronically zone a person into her home or out of a public park. It can prove conclusively that a particular person wore a hat or took a sip from a discarded soda can, or identify a single face in a 10,000 person crowd. In this day and age, restraint of the dangerous can be as much about keeping a person away from a place as it used to be about locking him up in one.
But whereas physical incapacitation of dangerous persons has always invoked some measure of constitutional scrutiny, virtually no legal constraints circumscribe the use of its technological counterpart. Across legal doctrines, courts erroneously treat physical deprivations as the archetypal “paradigm of restraint,” and thus largely overlook the significant threat to liberty posed by technological measures. Similarly, much scholarly interest has focused on the use of physical incapacitation as a means of regulatory control over, for example, illegal immigrants, pretrial detainees, or the mentally ill. An equivalent degree of notice has been given to the question of information privacy in general society. Yet virtually no attention has been paid to the connection between these two areas.
This Article examines the generally unheeded intersection between two well-documented trends: the state's increasing desire to preventively regulate targeted classes of individuals, and its increasing capacity to use innovative technologies, rather than physical incapacitation, to realize that desire. This Article identifies four loosely grouped emerging technologies of control: DNA databasing, electronic monitoring, electronic indexing, and biometric scanning. It then reviews the legal landscape upon which they operate, and demonstrates that, across the range of doctrines, courts unduly focus upon the physical world as the relevant metric against which all restraints are judged. As a result, technologies of restraint are imposed without necessary procedural safeguards. This Article then outlines four concerns peculiar to the technological nature of these restraints, and illustrates how these significant concerns are wholly overlooked when the physical world is the determinant referent of review. The Article closes by urging greater judicial scrutiny of technological restraints, and by laying out a series of potential inquiries that might aid in such an effort. ..more.. by ERIN MURPHY, University of California, Berkeley, School of Law (Boalt Hall)
November 16, 2007
Turmoil replaces treatment at Coalinga hospital
A state facility meant for sexually violent predators gets low marks after two years.
11-15-2007 California:
COALINGA, CALIF. -- One in a series of occasional articles on California's troubled mental health system.
-- Two years after California opened the nation's largest facility designed to house and treat men who have been declared sexually violent predators, Coalinga State Hospital is described by both patients and staff as an institution in turmoil.
Convinced that they stand little chance of being released and angry about perceived deficiencies at the hospital, patients are engaged in a tense standoff with administrators, according to interviews with more than 40 patients and staff members.
Almost all of the detainees at Coalinga have served time for serious sexual offenses. But instead of being released after completing their sentences, they were transferred to the state hospital system under a 1995 law that allows the state to declare certain high-risk sex offenders mentally ill and commit them to psychiatric facilities.
Detaining someone under the law is constitutional provided that the patient receives treatment. But today, significant treatment at Coalinga is rare. Administrators acknowledge that three-quarters of the hospital's 600-plus detainees refuse to participate in a core treatment program, undermining a central piece of the $388-million hospital's mission.
Some patients have also declined to eat for days at a time to protest alleged inadequacies in psychiatric and medical care as well as less important issues, including limited access to phones. Many have boycotted educational and improvement programs that include anger management workshops, computer training and Spanish classes -- a protest known inside the hospital as a "strike."
A severe staff shortage has further impeded treatment, patients and staff members say. As of last week, 26 of the hospital's 37 budgeted staff psychiatrist positions were vacant. On many wards, hospital police officers fill roles assumed by clinicians at other hospitals.
"We've got guys who camp out, waiting for clinicians to show up," one staff member said.
Staff members describe feeling overworked and harassed by patients who bang angrily on the nursing station glass if technicians or hospital police officers are a few minutes late to escort them on smoke breaks.
"We're calling it the Titanic State Hospital," said a psychiatric technician who, like most other current employees, spoke on condition of anonymity, fearing reprisal from administrators. "We've lost control. I've been saying for a couple of months now that the monkeys are running the circus."
Patients, meanwhile, are despairing.
"It's hopeless," said Robert Bates, 41, who was sent to Coalinga after serving a 10-year prison term for committing a lewd and lascivious act. "This is a therapeutic setting, supposedly. But it's nothing more than a mock-up prison. They can call it what they want. But it's prison."
State officials acknowledge the unrest, though they say there hasn't been as severe a disruption as patients and some staff members contend. They say they are doing the best they can with an unusually challenging patient population.
"When you undertake something of the magnitude of Coalinga, there is a growing and learning experience," said Stephen W. Mayberg, director of the state Department of Mental Health. "Where we are right now is certainly, I think, moving in the right direction."
Mayberg said the hospital can't force patients to take part in treatment.
"Am I disappointed that so many folks choose not to participate? Yeah. Do I think that's indicative of their illness, or their condition? Yes, I do," he said.
Coalinga opened in September 2005 amid promises of a new era, both in protecting the public and in treating sex offenders. Even empty, the facility stood out; its sleek architecture and tidy topiaries presenting a jarring contrast to the tumbleweeds and dust devils that dominate the surrounding landscape.
But the operation of Coalinga -- the only mental hospital built in California in half a century -- was never going to be effortless.
Sex offenders are a notoriously difficult group to treat. More than half the men confined at Coalinga are pedophiles, and many have had numerous victims. And sex offenders tend to be manipulative and charismatic, traits that helped enable some of their offenses in the first place.
Most Coalinga patients don't have mental illnesses that can be treated with medication, and there is no sure-fire way to rid the men entirely of their impulses. Many psychologists do not believe that hard-wired sexual deviance can be "cured"; instead, officials focus on what they call "relapse prevention."
From the start, Coalinga patients rejected their confinement, calling it unconstitutional. Then, last fall, California voters overwhelmingly approved Proposition 83, a tough crackdown on sex offenders.
Jessica's law, as it is known, made it easier for authorities to designate someone a "sexually violent predator" and hold him indefinitely, and to put restrictions on patients' ability to challenge their confinements.
Staff members say that because such a wide spectrum of sex offenses qualifies people for post-prison commitment, decisions about who is released and who is detained are largely random. Some staffers question whether all the patients at Coalinga belong there.
Michael Feer, a psychiatric social worker with more than three decades of experience, worked at Coalinga for a year before leaving this spring. He now works in San Diego County with recently paroled sex offenders, men who in some cases committed the same crimes as those at Coalinga but who are being released into the community, he said.
Feer said that although all Coalinga patients qualify as violent predators on paper, he believes that more than a third of them would pose no threat if released.
"They did their time, and suddenly they are picked up again and shipped off to a state hospital for essentially an indeterminate period of time," Feer said. To get out, he added, "they have to demonstrate that they are no longer a risk, which can be a very high standard. So, yeah, they do have grounds to be very upset."
The hospital, Feer said, "is a setup" -- ostensibly a treatment hospital but one built with a wink to a public that has little compunction about locking up sex offenders forever.
Coalinga administrators insist that there is still a clear path to release, provided a patient completes the hospital's exhaustive treatment program.
"I wouldn't be working in this field if I thought it was a scam," said Deirdre D'Orazio, director of program development and evaluation services at the hospital. "I don't believe that there are any wastebasket cases, individuals who are so abnormal that they can't learn to put aside their deviant impulses."
The core sex offender treatment involves such activities as a "psychological autopsy," a detailed accounting of decisions that preceded an offense.
Patients offer a variety of reasons for declining to participate. Some believe they can overcome deviance on their own. Others believe, mistakenly, that mere participation could be viewed as their first public admission of guilt. But many patients shun treatment because they have become convinced -- not without reason -- that no matter what they do, they are never going to win their freedom.
As of August, two years after Coalinga opened, not a single patient had been released because of completion of the treatment program. Of the more than 600 sexually violent predators who'd been committed to the facility as of August, the latest figures available, 17 patients had been released, all of them after petitioning in court.
Hospital administrators argue that patients should participate in treatment not just because they want out but because they want to acknowledge and address their problem.
"They need to say, 'My freedom is less important to me than never creating another victim,' " D'Orazio said.
Coalinga patients are keenly aware that they are not a sympathetic crowd. So they have tried to sell their cause -- to hospital administrators, healthcare reformers and advocates for the mentally ill -- as a matter of governmental responsibility.
"They've sold this as a wellness-and-recovery program," said patient Greg Peters, 49, a former studio percussionist who served a five-year prison term for raping two adult women before being routed into the mental health system. "But they are deceiving the public. You guys are out there paying taxes for this."
Like most patients at Coalinga, however, Peters said he harbored little hope that he will ever get out. He says staff shortages have resulted in a failure by the hospital to monitor and document patients' progress, an important part of convincing a court that they are ready to be released.
The staffing shortage stems in part from the decision by state officials to build the hospital 60 miles southwest of Fresno, in an isolated, dusty pocket of California's Central Valley otherwise dominated by huge almond farms, hardly the stuff of recruitment posters.
Compounding the staff shortage, an ongoing salary dispute makes it possible for many of the people hired there to make more money doing the same job elsewhere. And many of those who do go to work at the facility leave quickly.
Between November 2006 and October 2007, the hospital hired 468 people, but 147 left.
Extraordinary turnover isn't limited to rank-and-file employees; state officials are conducting a national search for the hospital's fifth executive director -- including people who have held the job on an interim basis -- in 18 months.
A single clinician is often left to supervise a unit of more than 50 patients. Mandatory overtime is routine, as is burnout, according to staff members.
"It's a miserable place to walk into," said one psychiatric technician. "Morale is horrible."
A growing sense among patients that they have been effectively railroaded into a life prison term formed the seed of discontent during the summer and fall.
Administrators have since challenged the patients' account of the "strike," saying the percentage of people participating has been far lower than patients and some staff members contended. They said, however, that they did not have attendance figures for educational and improvement programs.
But both patients and staff acknowledged that in the highly charged environment at Coalinga, even the most trivial of disagreements had ballooned into full-fledged disputes over civil rights.
In August, for instance, according to staff members, a group of patients taped small protest fliers to their hospital-issued identification tags. Most read: "When injustice becomes law, resistance becomes duty." Hospital officials ordered patients to remove them.
"They said they were defacing government property," a clinician said. "But they were just making this up as they go."
It did not end well; officers eventually hauled away one patient who refused to take off his protest flier.
"They made a martyr out of him," the clinician said. "The next day, patients had bigger pieces of paper taped to them that said: 'Please don't hit me because I'm wearing this piece of paper.' "
Patients, meanwhile, have developed a list of complaints and concerns. They say, for example, that the hospital drags its feet before allowing them outside the walls for specialized medical care.
The hospital denies having a problem, though a former employee familiar with the hospital's medical operation acknowledged that patients weren't seeing necessary specialists. The employee said the issue was complicated by the fact that physicians in nearby communities refuse to contract with the facility.
"Nobody can decide what we are," said Niles Carr, 38, who was routed into the mental hospital system in 1998 after serving time for molestation. "But as long as we're stuck here, we need to be treated properly."
Some of the patients' demands -- such as Internet access -- aren't likely to gain much traction with the public.
Others, however, have gained the attention of a congressionally charged, federally funded group that advocates on behalf of people with physical and mental health disabilities. Protection & Advocacy Inc. attorney Sean Rashkis said the group was investigating patients' concerns.
"They have done their time and have moved into a civil commitment which is based on treatment," he said. "Some of the patients argue that that's not what they are getting. It may be the case. We'll have to see." ..more.. by Scott Gold and Lee Romney, Los Angeles Times Staff Writers scott.gold@latimes.com leora.romney@latimes.com
November 14, 2007
November 13, 2007
Woman prosecuted for giving her children too much information about sex
11-12-2007 Wisconsin:
Amy Smalley thought she was being a good parent when she taught her children about sex.
Smalley told her children, ages 11 and 15, about her own sexual experiences, explained how to perform oral sex and even showed them a sex toy she owned.
Smalley called it education. Prosecutors called it a crime.
Prosecutors in Columbia County, Wis., charged Smalley Feb. 19 with exposing children to harmful descriptions, a felony crime that carries a penalty of up to three years in prison.
Smalley's lawyer attempted to get the case thrown out, saying that sex education was protected free speech, but a Columbia County judge disagreed and sent the case to trial.
On Thursday, Smalley pleaded guilty and was sentenced to probation and ordered to attend counseling. She agreed to the plea to prevent her children from having to testify, Smalley told the Portage Daily Register.
In a motion to dismiss the case, Columbia County Public Defender Mark Gumz claimed that Smalley's discussion with her children fell under the umbrella of parental free speech.
"Ms. Smalley would be within her rights as a parent to educate her children in such a manner as she sees fit ... even if the state feels it improper," Gumz wrote.
The state, Gumz said, does not have the right to decide what parents can teach their children about sex.
"Health classes are a part of modern school curriculum, and President Bill Clinton and Monica Lewinsky have forever changed the vernacular of the American public," he wrote.
Columbia County Assistant District Attorney Crystal Long could not be reached for comment.
Gumz argued that, because Smalley's children were 11 and 15, they were near or at the age of puberty, making it acceptable for their mother to explain sex to them. But, according to the criminal complaint, the younger son objected. The boy told a counselor about the discussion and, when asked by police, said he preferred that his mother "keep that kind of information personal," according to the criminal complaint.
"This whole thing's been like a nightmare for me and I can't understand it," Smalley told the Daily Register after the plea.
Rev. Debra Haffner, a sexuality educator and director of the The Religious Institute on Sexual Morality, Justice, and Healing, said she was surprised to learn that Smalley had spoken to her son about specific sexual history, calling it "highly unusual."
"It's not smart parenting, but certainly not actionable," she said.
Haffner, the former president of the Sexuality Information and Education Council of the United States, reinforced the importance of parents speaking with their children about sex, saying children need to hear the information from their parents, but she said the level of detail makes a difference.
"Parents may say, 'Oral sex is when you put your mouth on another person's genitals,'" Haffner said. "But, if you go into technique with your kids, saying 'Sometimes it feels good if you do this' ... I think there is a level of description that could be too much."
A main point made by Smalley's attorneys in arguing for the case to be dropped was that the law used to prosecute her was intended to prevent children from being exposed to pornography, and not meant for parents talking about sex with their kids.
"This was not some stranger who was telling children sordid stories for sexual gratification and titillation," Gumz said in his motion. ..more.. by Mallory Simon, Court TV
