MA- Creem: Why I voted against Jessica’s Law

Hats off to a lawmakers who is willing to stand alone and fight overwhelming odds, and in fact, is correct on every postion she states. Further, pay particular attention to the "tucked in" provisons masked as "Internet age updates" which in fact allow the state to circumvent 4th amendment protections. Hopefully the ACLU will get involved and have those provisons declared unconstitutional.

7-29-2008 Massachusetts:

Being the only “no” vote on a crime bill named in memory of a little girl is a tough spot to be in for an elected official, but that is my situation after the Senate overwhelmingly passed Jessica’s Law. For 10 years, I have been deeply involved in reforming the state’s sex-offender laws, and we have made Massachusetts safer for children. Unfortunately, and in spite of its popularity, Jessica’s Law has serious flaws.

Jessica’s Law originated in Florida in response to the rape and murder of 9-year-old Jessica Lunsford by a convicted sex offender. Since then, more than 30 states have adopted some form of the law. Our version was largely developed by the district attorney’s and the attorney general’s office, and focuses on creating three new “aggravated” levels of existing sex crimes, which would now carry mandatory minimum prison sentences ranging from 10 to 20 years.

I am a longtime critic of mandatory minimum sentencing as a failed experiment of the “get tough” 1980s. Nearly 30 years of experience shows that mandatory sentencing does little to deter crime, unnecessarily ties the hands of judges and pointlessly fills prisons when less expensive — and more effective — sentencing alternatives exist.

In 1999, I successfully argued that convicted sexual predators should have lifetime parole supervision. A few years later, I helped create and fund a statewide intensive-parole program. To date, that program has a recidivism rate of zero. It can — and should — be expanded.

In addition to mandatory sentences, Massachusetts’ Jessica’s Law also included several other questionable provisions on administrative subpoenas, mandated reporters and proof of prior convictions.

Tucked away in the bill were two sections that were misleadingly touted as simply statutory updates for the Internet age. The change, however, gives prosecutors sweeping new powers to demand subscriber information from both telephone companies and Internet service providers. These expanded administrative subpoenas allow investigators to avoid the need for judicial or grand-jury approval, and ultimately to circumvent everyone’s Fourth Amendment protections.

Additionally, it did not simply add ISPs to the existing administrative-subpoena statute. It took the dramatic step of lowering the standard for obtaining information on phone users and applying that lower standard to computer users as well, opening the door to all sorts of prosecutorial fishing expeditions that current law would prevent.

This unwarranted invasion of privacy is even more alarming when you consider that Internet providers store far more personal information than telephone companies. Throw in the bill’s lack of disclosure requirements and its blanket immunity for providers, and the potential for abuse can easily be envisioned.

I cannot support this attack on privacy rights when less-invasive and equally effective means are available. Our liberties should never be sacrificed in the name of prosecutorial convenience.

For that same reason, I also objected to Jessica’s Laws provisions allowing the admission of court records as self-authenticating evidence of prior convictions. Such evidence will be admissible as prima facie evidence to apply mandatory minimum sentences to repeat offenders.

I see this as a violation of the federal and state Constitutional rights of a defendant to confront accusers, and I believe my position is supported by recent rulings of the U.S. Supreme Court, which has barred similar efforts to offer evidence of prior convictions in lieu of witness testimony.

All too often we have seen the fallibility of state and federal record-keeping, especially when exempted from traditional and adversarial testing. This only reinforces the importance of the ability to confront opposing witnesses.

Finally, Jessica’s Law creates broad new mandatory sentences for so-called mandated reporters. There is no question that people who abuse a position of trust to sexually assault children are particularly abhorrent. Still, this bill was not carefully drafted and is ultimately too broad.

“Mandated reporters” engage in occupations or hold positions that have functions of trust such as physicians, teachers, child-care workers, certain court employees and religious leaders. If they have a “professional relationship” with a child they believe is the victim of abuse, they have a legal obligation to notify authorities. However, Jessica’s Law ignores the need for such a relationship when imposing new penalties. As I read the bill, any defendant who happens to be in a mandated-reporter occupation would face enhanced penalties — even if he had no prior relationship with the victim.

People who abuse a position of trust should face stiffer penalties, but this law seeks to create a new category of criminal based solely on occupation.

It’s never easy to stand alone — especially when the question is the safety of our children. Yet I stand by my vote, because Jessica’s Law is riddled with flaws and based on outmoded thoughts on criminal sentencing. I have argued for years that we need to be smart on crime — especially with offenders as insidious as sexual predators. Increased parole, thoughtful sentences, allowing judges to do their job and forcing prosecutors to respect civil liberties are all properly part of that effort. Unfortunately, Jessica’s Law is not. ..News Source.. by Guest Column/State Sen. Cynthia Creem