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March 16, 2008

20/20 Age of Consent Series

John Stossel brings us a new series on the Age of Consent. Each week he has addressed a specific issue, a video and a written story. Also, don't forget to check the readers' comments as we found that even the well known vigilantes were harassing the commenters with their misconstructions and other nonsense. Finally, it was nice to see commenter telling their stories of how their lives were affected by the registry. So, sit back and enjoy, if new ones are posted we will update:

Age of Consent: Where it all begins.

Sex Abuse Laws: Unintended Consequences? Frank and Nikki Rodriguez are married with four children. He is on the Texas State Sex Offender registry because the couple had sex when he was 19 and she was 15, below the age of consent in the state.

Parents Turn to Police When Daughters Have Sex Mark Putorti called the police when he found out that his daughter Alexis,15, was having sex with her boyfriend. The age of consent in Connecticut is 16 and Alexis' boyfriend was arrested.

Having Sex, Legally: Which Age Is Best? Age of consent laws vary from state to state and from nation to nation.

Double Standard When It Comes to Underage Sex? Although Debra LaFave, Mary Kay LeTourneau and Pamela Rogers were criminally prosecuted, many people view the women's sex crimes very differently than they view similar crimes committed by men.

Sexual Abuse or Harmless Horseplay? Kids Treated Like Cons as Schools Crack Down on Minor Infractions

Sex, Laws and Politicians Eliot Spitzer Is the Latest Example of Politicians Not Practicing What They Preach

Age of Consent: Sex Offender Laws Do tough sex offender laws in states ruin some lives while saving others?

Which Laws Are Necessary for Consenting Adults? 20/20 Is Looking for Interview Subjects for a Future Show

The following from ZMan's YouTube Site

20/20) - Age of Consent - Practice What You Preach

Age of Consent - Sex Laws Gone Too Far

The 'Deterrent Effect' <

Age of Consent - Vigilante Justice

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Patty Wetterling: The harm in sex-offender laws

9-14-2007 Wisconsin:

ST. JOSEPH, Minn. -- My son Jacob was kidnapped on Oct. 22, 1989. Neither his brother nor his friend saw the man's face. He was masked, he had a gun and he ordered them to run to the woods. By the time they looked back, Jacob was gone and so was the man. Since that day, I have been on a journey to find him and to stop this from ever happening to another child, another family.

But I'm worried that we're focusing so much energy on naming and shaming convicted sex offenders that we're not doing as much as we should to protect our children from other real threats.

Many states make former offenders register for life, restrict where they can live, and make their details known to the public. And yet the evidence suggests these laws may do more harm than good.

Jacob's Law was the first federal attempt to prevent convicted sex offenders from repeating their crimes after release. It was the outcome of my unwanted education in sexual violence against children.

Soon after Jacob was taken, I learned that sexual motives are usually behind child kidnapping. That was a thought totally out of my realm of consciousness. Who would do that? Who would sexually harm a child? As the search for Jacob went on, I asked law enforcement, what do you need? An investigator told me: A ready list of potential suspects, a central database of offenders convicted of sexual violence against children.

The Jacob Wetterling Crimes Against Children Sex Offender Registration Act was part of the 1994 Crime Bill signed by President Bill Clinton. Our goal was to give law enforcement a tool to help build safer communities. Back in 1990, when we first recommended registering convicted sex offenders, we were met with resistance: "You can't do that. These people have rights!" How times have changed. Few people today are concerned about the rights of sex offenders. Most now complain our laws are not tough enough.

But they might be missing some basic facts. First, in most states "sex offender" covers anyone, including juveniles, convicted of any sexual offense, including consensual teenage sex, public urination and other non-violent crimes. Second, Jacob was the exception, not the rule: more than 90 percent of sexual violence is committed by someone the child knows. And third, most shocking to me, sex offenders are less likely to re-offend than commonly thought. A Department of Justice study suggested ex-offenders have a recidivism rate of 3 percent to 5 percent within the first three years after release.

Another study found that, after 15 years, three out of four do not re-offend.

Shortly before Jacob's Law was passed, Megan Kanka was kidnapped, raped and murdered. Her parents felt it wasn't enough for law enforcement to know where sex offenders were: they thought we should all know. Maybe, if they'd known that there was a convicted sex offender living next door, their child would be alive today. Megan's Law was created to let people know when a violent offender was released into their community, so they could talk to their children and perhaps save another child from sexual violence. But the law has been expanded so that now anyone with an Internet connection can download details about almost any offender, whether or not they pose a risk, and whether or not they live nearby.

Are these policies working? Are our "get tough on sex offenders" laws having the desired effect? Human Rights Watch has taken on the challenge of looking at sex offender policy to see what parts are working and what aren't.

This week it published a 143-page report, "No Easy Answers: Sex Offender Laws in the United States." The researchers examined whether we are building safer communities with these laws, and what issues policy-makers should consider. HRW found that many laws may not prevent sexual attacks on children, but do lead to harassment, ostracism and even violence against former offenders. That makes it nearly impossible to rehabilitate those people and reintegrate them safely into their communities -- and that may actually increase the risk that they'll repeat their crime.

We need to keep sight of the goal: no more victims. We need to be realistic. Not all sex offenders are the same. Not all sex offenses are the same. We need to ask tougher questions: What can we do to help those who have offended so that they will not do it again? What are the social factors contributing to sexual violence and how can we turn things around? None of us want our loved ones to be victims of sexual violence. None of us want to be the parent or sibling or child of a sex offender. But since the vast majority of sexual assaults are committed by someone known to the family, sexual violence becomes personal very quickly. It affects all of us.

We need better answers. We need to fund prevention programs that stop sexual violence before it happens. We need to look at what can help those released from prison to succeed so that they don't victimize again -- and that probably means housing and jobs and treatment and community support. Given that current laws are extremely popular, taking truly effective measures may exact a high political price. But that's surely not too much to pay to prevent the kidnap, rape or murder of another child. ..more.. Opinion by Patty Wetterling

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When Do Courts Think Base Rate Statistics Are Relevant?

April 2001:

Sometimes courts regard probability evidence to be relevant and sometimes they do not. This paper identifies a set of the conditions under which appellate and supreme courts are more and less likely to treat background probabilities (i.e., base rates) as relevant evidence. Base rates identify the relative frequency with which an event occurs or an attribute is present in some reference population (e.g., “eighty to eighty-five percent of child sexual abuse is committed by a close relative”). Following an introductory section that reviews the relationship between base rates and Bayes’ theorem, the following section is a critical review of the historical mistrust courts have exhibited toward probability evidence in general and base rates in particular. Next, the probabilistic reasoning literature and high court opinions are used to identify a series of conditions under which courts are likely to view base rates as relevant. This tends to occur when base rates (a) arise in cases that appear to have a statistical structure, (b) are offered to rebut an it-happened-by-chance theory, (c) are computed using reference classes that incorporate specific features of the focal case, or (d) are offered in cases when it is difficult or impossible to obtain evidence of a more individuating sort. The final section is a conclusion. ..more.. by Jonathan J. Koehler, The University of Texas at Austin, McCombs School of Business and School of Law

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March 15, 2008

Investigating Potential Child Abduction Cases A Developmental Perspective


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UT- Sexual Violence in Utah


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States reconsider life behind bars for youth

With nearly 2,400 inmates sentenced to life as juveniles, the U.S. is the only nation imposing the mandate on children.

3-12-2008 National:

Chicago - How should a society treat its youngest criminal offenders? And the families of victims of those offenders?

Half a dozen states are now weighing these questions anew, as they consider whether to ban life sentences for juveniles that don't include a option for parole – and whether those now serving such sentences should have a retroactive shot at parole.

Here in Illinois, proposed legislation would give 103 people – most convicted of unusually brutal crimes – a chance at parole hearings, while outlawing the sentence for future young perpetrators.

The proposal has victims' families up in arms, angry that killers they had been told were in prison for life might be given a shot at release and that they'd need to regularly attend hearings in the future, reliving old traumas, to try to ensure that these criminals remain behind bars.

Advocates of legislation, meanwhile, both in Illinois and elsewhere, note that the US is the only country in the world with anyone – nearly 2,400 across the nation – serving such a severe sentence for a crime committed as a juvenile. They criticize the fact that the sentence is often mandatory, part of a system devoid of leniency for a teenager's lack of judgment, or hope that youth can be reformed.

"Kids should be punished, and held accountable. The crimes we're talking about are very serious crimes," says Alison Parker, deputy director of the US program of Human Rights Watch and author of a report on the issue. "But children are uniquely able to rehabilitate themselves, to grow up and to change. A life-without-parole sentence says they're beyond repair, beyond hope."

The sentence is automatic for certain crimes in more than half of all states, part of a wave of "get tough" laws aimed at cracking down on rising crime rates during the 1980s and '90s. Which means judges often have little to no discretion when they mete out punishment. In many instances, they are prohibited from considering age or even whether the juvenile was the one who pulled the trigger. About a quarter of the juveniles serving life without parole sentences nationally were convicted of what is known as "felony murder," says Ms. Parker. They participated in a felony in which murder was committed, but they weren't the ones who did the actual killing.

In Illinois, that list includes Marshan Allen, a 15-year-old who accompanied an older brother and some friends on a drug-related mission, and says he didn't know they were going to kill several people.

In California, another state considering doing away with the sentence, it includes Anthony, a 16-year-old painting graffiti with a friend when the friend produced a gun and decided to rob an approaching group of teenagers. His friend pulled the trigger, but Anthony – who turned down a plea bargain because he couldn't imagine paying for a crime he didn't feel he'd committed – got a life-without-parole sentence.

"There are people in prison for crimes they committed as juveniles that should never see the light of day," says Rich Klawiter, a partner at the law firm DLA Piper and part of the Illinois Coalition for the Fair Sentencing of Children, which produced a report on the issue last month and advocates reform. "But those that show themselves worthy of redemption ought to be given an opportunity before a parole board."

The frequent citing of cases like Allen's bothers supporters of the sentence, who say such examples are hardly representative. Generally, the mandate is saved for such extreme offenses as multiple murders, killing of a police officer, aggravated sexual assault, and murder of a child.

"These guys are the worst of the worst," says Jennifer Bishop-Jenkins, whose pregnant sister and brother-in-law were murdered by a 16-year-old in their Winnetka, Ill., townhome in 1990. She acknowledges automatic sentencing has probably punished a few juveniles unfairly, but notes that such individuals can always appeal for clemency. What she doesn't understand is bringing offenders back for hearings that, in her mind, would only unearth the past for the families of victims who thought they'd seen their loved ones' killers put away forever.

Ms. Bishop-Jenkins and her sister, Jeanne Bishop, are both prominent victim activists against the death penalty, and helped in the case that got the juvenile death penalty overturned by the Supreme Court three years ago. Now, they both say, they feel betrayed by the same allies with whom they fought against the death penalty, who never sought their input on this issue.

"Once you say this person could get out someday through this mechanism, you've just placed a crushing burden on the hearts and minds of the victims' families," says Jeanne Bishop, a Cook County public defender who has also defended juveniles. She and her sister both support getting rid of the mandatory sentencing and giving judges more discretion, but worry that in all the talk of the human rights of juvenile offenders, the rights of victims are being forgotten.

The current legislation in Illinois is unlikely to go anywhere, with its key sponsor backing away last week and saying more time is needed to dialogue with victims. Reform advocates hope to have new legislation introduced in the near future. Colorado outlawed juvenile life without parole in 2006, and legislation is pending in Michigan, Florida, Nebraska, and California, while a few other states are experiencing grass-roots efforts.

Some activists against the sentence say they hope they can work with victims' families to take their concerns into account even as they do away with the sentence. In Michigan, where a set of bills is before both the Senate and the House, activists have had some success building dialogue with victims, says Deborah LaBelle, a human rights attorney based in Ann Arbor and director of the ACLU's Juvenile Life Without Parole Initiative.

"We need to allow both voices to be heard," says Ms. LaBelle. But she feels strongly that the sentence is inappropriate for youth. "As every parent knows and as every social scientist understands, this is a time of ill-thought-out, impulsive lack of judgment, problematic years… To throw them away and say you're irredeemable as a child is a disturbing social concept." ..more.. by Amanda Paulson | Staff writer of The Christian Science Monitor

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CO- 'Sexually Violent Predator' tag debated

Attorneys, offenders debate Colorado's use of 'sexually violent predator' designation

3-8-2008 Coloado:

Longmont resident Dwight Jackson says the term "sexually violent predator" conjures up images of a 50-year-old man hiding behind a bush and snatching up 4- and 5-year-old children -- not his 22-year-old son.

What is a sexually violent predator?
A sexually violent predator is defined by Colorado law as someone 18 or older, or tried as an adult, who pleaded guilty or was convicted on or after July 1,1999, of one of the following crimes occurring on or after July 1, 1997: sex assault in the first or second degrees, unlawful sexual contact or third-degree sex assault, sex assault on a child, or sex assault on a child by a person in position of trust.

The perpetrator could be a stranger or a person who promoted a relationship with the victim for the purpose of the crime.

When the court finds a defendant to be a sexually violent predator, it is determined through the pre-sentence report the court gets at the time of sentencing. A sexually violent predator risk assessment is supposed to be part of that report, and the judge makes the determination after the prosecutor and defense attorney get a look at the report.

A person being considered for parole from prison also can be administered the sexually violent risk assessment tool and labeled by the parole board before he or she is set free.

The SVP test
The Colorado Sexually Violent Predator Assessment Screening Instrument was developed by the state's division of criminal justice with help and approval by the state sex offender management board.

"Yes" answers count as one point. The weight of the last three questions are measured by a "scale criteria" system based on more questions and actions by the offender.

A score of 4 or above means the label gets attached.

1. If there is a juvenile criminal history, would it have been considered felonious as an adult offense?

2. Does offender have any type of prior felony convictions?

3. Did the offender fail first or second grade?

4. Was the offender employed less than full time at the time of the offense?

5. Did the offender possess a weapon at the time of the offense?

6. Did the offender use drugs or alcohol to reduce the victim's ability to resist?

7. If the offender reports that he or she was not sexually aroused during the crime, add a point.

8. Scale criteria that relates to the offender's level of denial.

9. Scale criteria that relates to the offender's level of motivation for treatment.

10. Scale criteria that relates to the offender's level of deviancy.

Colorado's SVPs

354 offenders designated SVP:

187 through the court system at the time of sentencing

167 by parole board at the time they exit prison

Of those SVPs:

300 are currently incarcerated

2 are in community corrections settings (halfway houses)

24 are under parole supervision

28 have been discharged

Source: Department of Correctionsas of September 2007

Yet that's the unsavory title Sean Christopher Jackson will carry for the rest of his life after denying to Colorado's parole board that he's a rapist.

Arrested in 2004 on suspicion of sexually assaulting two girls, aged 14 and 15, Sean Jackson insisted the sex was consensual. He took a plea deal to avoid a possible life sentence, his father said, and spent three years in prison. Now he's barred from even seeing his two younger sisters until they turn 18, thanks to the predator tag.

"It's a real twisted law that is costing taxpayers," Dwight Jackson said in a recent interview. "We just think it's ridiculous. ... He's just an immature teenager -- a stupid kid."

Colorado's sexually violent predator label was created in 1999 to warn communities -- through public meetings and frequent registration with police -- of those offenders most immutable to treatment and, according to research, most likely to reoffend.

Despite those intentions, the designation -- which can be affixed by a judge at sentencing or the parole board at the conclusion of a prison sentence -- has attracted its share of naysayers, including those bearing the label and inside the criminal-defense community, as well as some police and prosecutors. One local legislator is even trying to change the law so that only a judge -- and not the parole board -- can affix the sexually violent predator tag to offenders.

Just hearing the phrase "sexually violent predator" can strike fear in neighbors, notes former Boulder County sex-crimes prosecutor Ingrid Bakke.

"That does a lot in terms of scaring people and making the offender equally afraid of more repercussions when tagged," said Bakke, who is now a private defense attorney.

"And I think we have yet to see if it works or not."

Crimes of violence

At the end of 2007, there were 354 people designated as sexually violent predators by the state of Colorado, according to the Department of Corrections. Of those, 157 were labeled by the state's parole board. Three hundred remain incarcerated.

Currently, two sexually violent predators call Boulder County home -- and both say their crimes involved consensual sexual relationships with underage girls.

Friday, a bill designed to change the way people convicted of sexual crimes receive the label was approved on a second reading by the Colorado House of Representatives. The bill, sponsored by Rep. Dianne Primavera, D-Broomfield, seeks to require that the judge handing down an offender's sentence also determine whether that person gets the sexually violent predator label.

"It's intended to make sure a SVP is assessed at the right place at the right time," Primavera said. "It's really important they get labeled appropriately"

Boulder defense attorney Mary Clair Mulligan said the label shouldn't be slapped on men who are just older than the legal limit who are convicted of having consensual sex with underage girls.

"I realize there is an element of community safety involved," Mulligan said, "but it does sort of boil down to how (the state) defines sexually violent predator compared to the rest of the community."

While the tag includes the word "violent," those bearing it may not necessarily have been convicted of violent crimes. Of the five sexually violent predators who have ever lived in Boulder County, two were convicted of touching victims over their clothing.

"It's such a misnomer," said Julie Brooks, a Boulder police spokeswoman. "There can be no violence involved (and people can still be) labeled."

Sex offenders are the lepers of the 21st century, said Denver defense attorney Phil Cherner, even though two-thirds of them are sentenced to serve time in the community, not prison.

"We need to find a rational way to deal with them, not overreact," Cherner said.

Yet sex assault survivor Renee Dulany does not think Colorado's predator law is broad enough.

Last summer, Rudy Gaytan was convicted of brutally raping Dulany at knifepoint in Longmont in 1996 -- but he cannot earn the sexually violent predator label because his crime occurred before that law went into effect. He was sentenced to 72 years in prison earlier this month.

"If you've been convicted, I think you are a sexually violent predator," Dulany said. "The justice system is still lacking in protecting future victims."

Dulany said victims of sex assault can't be healed with medicine or treatment -- it is something they live with every day.

"To have these people on the street -- they're dangerous," she said. "We have every right to know."

Janine D'Anniballe, the executive director of Boulder's Moving to End Sexual Assault, said the intent of the law is to give a "heads up" to the community.

"That's always a good thing," she said. "I think the way it's done is to try and capture people's attention and give people a forum to learn and ask questions."

However, D'Anniballe said, the label has a lot of focus and fear attached to it, when, in reality, the majority of sex offenses are perpetrated by people the victim knows -- not strangers jumping out of the bushes.

"The perpetrator could just as easy be someone in the family -- that's closer to them than any (sexually violent predator) in the neighborhood," D'Anniballe said.

Inflammatory label

Michael Dell said he's seen overreaction to the predator label firsthand.

Dell was convicted of sexual assault in Boulder in 1999. He does not carry the sexually violent predator label, but as a board member of Colorado CURE -- a national organization that advocates on prison issues and also acts as a clearinghouse to help former inmates -- he talks to lawmakers about the effects of the legislation they pass.

"The purpose is good," Dell said of Colorado's predator label. "There is a certain percentage of sex offenders who will never manage themselves, and that's basically what the predator group is."

But the problem lies in how the system identifies that group, he said. Not distinguishing between those who seek out strangers and those who are familiar to their victims, and also not separating those who have multiple victims or those who attack strangers is troubling, Dell said.

"If you overdesignate everyone, then you lose the people who are dangerous in the crowd," Dell said.

And the label itself is so inflammatory it makes living on the outside of prison walls very tough for its designates and drives some underground, meaning they fail to register.

"We're back to the boogeyman syndrome," Dell said. "People need to realize unless you know the individual circumstances ... just because someone a sex offender, they're not going to be drooling over your kids as they walk to school."

Laurie Kepros, a public defender in Arapahoe County who specializes in sex cases, said when sex offenders are given the predator label by a judge in court at the time of sentencing, they at least can have help from an attorney to dispute the designation.

However, she said, when the parole board labels offenders there is nobody advocating for the defendant.

That is problematic, Kepros said, and she is hearing more and more "horror stories" -- people being given the label even after the court deemed they were not qualified for it, and others slapped with the label when their crime doesn't fit the definition.

"That's really alarming," she said. "We're trying to figure out if we can help or not. "

But David Michaud, chairman of Colorado's parole board, defended the post-prison labeling.

He said the parole board is just following the law, using the Colorado Sexually Violent Predator Assessment Screening Instrument, which was developed from research collected by Colorado's division of criminal justice and approved by the sex offender management board.

"You've got some discretion, but if it were me doing them, I'm not going to go against that risk assessment ... unless I see there is a blatant mistake," Michaud said.

When the label is applied in court, it happens at a public hearing -- but the parole board meeting is closed.

Offenders are given at least 24 hours' notice of the possible label and have a chance to submit evidence or call witnesses to try and fight the designation, Michaud noted.

Michaud said he knows there will always be people not happy with how they were labeled, but the real retribution to his board will come when an offender passes the assessment test, leaves prison without the sexually violent predator tag -- and then reoffends.

"Then someone's going to be screaming and hollering that this doesn't work," he said. ..more.. by Christine Reid

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Criminal Law in Virtual Worlds

March 2008

When does conduct by an online player in a virtual world game trigger liability for a real-world crime? In the future, will new criminal laws be needed to account for new social harms that occur in virtual worlds? This short essay considers both questions. Part I argues that existing laws regulate virtual worlds with little or no regard to the virtual reality they foster. Criminal law tends to follow the physical rather than the virtual: it looks to what a person does rather than what the victim virtually perceives. This dynamic greatly narrows the role of criminal law in virtual worlds. Existing law will not recognize virtual murder, virtual threats, or virtual theft. Virtual worlds will be regulated like any other game, but their virtualness normally will have no independent legal resonance from the standpoint of criminal law.

Part II turns to the normative question: Are new laws needed? It concludes that legislatures should not enact new criminal laws to account for the new social harms that may occur in virtual worlds. Virtual worlds at bottom are computer games, and games are artificial structures better regulated by game administrators than federal or state governments. The best punishment for a violation of a game comes from the game itself. Criminal law is a blunt instrument that should be used only as a last resort. The state's power to deny individuals their freedom is an extraordinary power, and it should be reserved for harms that other mechanisms cannot remedy. Online virtual worlds may seem real to some users, but unlike real life, they are mediated by game administrators who can take action with consequences internal to the game. Internal virtual harms should trigger internal virtual remedies. It is only when harms go outside the game that the criminal law should be potentially available to remedy wrongs not redressable elsewhere. ..more.. by ORIN S. KERR
George Washington University - Law School

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CO- Law's eye on sex-offender digital trails

A Dumb Method: Offenders are told to bring in their computers to allow them to be searched by a technician. I wonder how many offenders DO NOT bring in the computer that they use to do things prohibited by probation, instead bring in the clean one? Yes, the offenders could easily be smarter than those who monitor them without much thought!

3-14-2008 Colorado:

For three days each month, dozens of sex offenders parade into the Centennial probation office lugging their computers.

Have they traveled online to social sites like MySpace and Facebook trolling for victims? Have they been to XXXTeens or Nickelodeon or Toys "R" Us? Have they chatted with other pedophiles or sexual offenders?

Most probation officers, more at home keeping criminals away from bars and other criminals, would have a hard time telling. So in Centennial, a forensic specialist comes in to go over the computers with the high-tech equivalent of a fine-toothed comb.

Between 70 percent and 80 percent of first-time sex offenders get probation, which means officers have their hands full watching for any trips they make to the dark side of the virtual world. And while sex offenders make up the majority of computer-related criminals on probation, there are also hackers, forgers, identity thieves and gang members who need to be watched.
Some counties have officers trained to monitor computers. Others have thrown up their hands over cyber tracking and rely on polygraph exams, given regularly to offenders, to catch online misdeeds.

"We have some offenders with way more computer expertise and knowledge than I have or most of my officers have," explained John Odenheimer, probation supervisor for the 18th Judicial District based in Centennial, which brings in the forensic specialist.

Taking computers away is rarely an option. Judges seldom allow probation officers to deny computer access. They can only place restrictions on computer use.

"It's obviously a big problem with the Internet being so ubiquitous," said Joe Russo, assistant director of the National Law Enforcement and Corrections Technology Center in Denver. "It's a concern that was unanticipated."

Russo's center has helped departments with training and research. And Boulder forensic computer consultant Jim Tanner has done much to improve monitoring by working with the center to develop a program that is distributed free to probation offices.

But the numbers are overwhelming. There are 2,604 sex offenders on probation now. Of those, 1,062 are considered "high risk," which means they (and their computers) must be monitored for the rest of their lives.

Even the probation office that is credited with doing the most with computer monitoring — the 20th Judicial District in Boulder County — keeps hitting new technological stumbling blocks.

Offenders can now make end runs around some monitoring programs by using cellphones, Blackberrys, iPods and video games to access the Internet. Programs are also available to wipe hard drives clean.

"We are going through gyrations to stay ahead," said Tanner, a con sultant with the Boulder department and developer of the Field Search program that is most widely used to scan probationers' computers in Colorado.

Digital trails a deterrent

In Boulder County, where offenders sit down with an officer as their computers are scanned, Chief Probation Officer Greg Brown said they are asked on the spot why they have gone to certain sites.

"When they see what we can pull up, most of them will stop doing what they are doing," Brown said. "It's a huge deterrent."

Colorado keeps no data on how many offenders on probation used computers to commit their initial crimes or whose probation is revoked because they continue illicit computer use.

Many violations are minor and warrant only warnings. But a case in Boulder showed monitoring can avert serious crime.

A man on probation for luring a minor through a social site and having sex with her wiped his hard drive clean and claimed it was inadvertent. Later monitoring showed he was on MySpace contacting underage girls and trying to set up meetings. He is now in prison for that violation.

Probation computer specialists say they are constantly working to tweak the monitoring to cover more data and devices. They are attempting to send trainers into rural areas and probation officials are developing a statewide policy on computer monitoring.

Meanwhile, probation officers concede that offenders are also at work on their own upgrades as they attempt to sneak undetected into the virtual netherworld of crime.

"They are always going to be a little bit ahead of us," Brown said. "We're not catching them all, but we're certainly increasing our probability." ..more.. by Nancy Lofholm:

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March 14, 2008

MA- SJC says low-level sex offenders have right to hearing

3-14-2008 Massachusetts:

Low-level sex offenders who were convicted before the state passed a mandatory registration law have the right to a hearing to show they are no longer dangerous, the state’s highest court ruled today.

The ruling came in the case of a man who was convicted of rape in 1979. The man, who was not identified, served his sentence of two years of probation, did not commit any other crimes and lived a stable life for more than two decades.

Then, in 2003, he was told he must register as a Level One sex offender every year for the rest of his life under a 1999 law that requires anyone convicted of a violent sexual crime to register with local law enforcement authorities.

The Supreme Judicial Court found that applying the registration law retroactively to a man whose crime occurred two decades before the 1999 law was passed violated his constitutional rights.

"Here, the requirements the registration law would impose on Doe are extensive and permanent," Justice Robert Cordy wrote for the court in a unanimous decision.

"Moreover, if Doe can establish that he poses neither a risk of reoffense nor a danger to the communities the law was intended to protect, the imposition of the registration law’s requirements on him would not further the law’s substantial and important purposes."

The ruling only identified the man as "John Doe" and did not provide details of his crime. His lawyer, Lawrence Murray, also would not describe the circumstances of the rape, but said the man — who was 22 at the time — received no prison time, only probation, after he entered an Alford plea. Such a plea allows a defendant to assert his innocence while acknowledging that there is enough evidence for a jury to convict him.

Murray said the man was in tears when he learned that under the 1999 law, he would have to register as a sex offender. By the time he was told of the requirement, he had been married for 21 years, raised three children, had a good job and had committed no other crimes, Murray said.

"He’s a hardworking man," said Murray. "Here is someone who ... had served out his probation, had not had anything to do with the law for 22 years, and yet, he was going to be subject to the regulation to register for the rest of his life."

Terrel Harris, a spokesman for the Sex Offender Registry Board, said the ruling does not mean that sex offenders who committed their crimes before 1999 will automatically be spared from the registration requirement.

"The decision now gives them the opportunity to argue they are no longer a threat to the public’s safety and therefore shouldn’t have to continue registering. The (Sex Offender Registry Board) still makes the final judgment," Harris said.

Harris said that while it is clear the ruling applies to Level 1 sex offenders — those considered the least likely to reoffend — the board is still analyzing the decision to determine whether it could also apply to Level 2 and Level 3 offenders, those who are considered more dangerous.

Eric Tennen, a Boston lawyer who has represented sex offenders, said that although information about Level 1 offenders is not disseminated by the board or local police departments the way information about Level 2 and 3 offenders is, having to register with police is still a humiliating experience.

"What this is going to do is really allow those very low-level and no-risk offenders to be able to move on with their lives and put behind them these incidents that they overcame long ago," he said. ..more.. by AP

NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030;



November 8, 2007. - March 14, 2008.

Sex Offender. Sex Offender Registration and Community Notification Act. Due Process of Law, Sex offender, Retroactive application of statute. Evidence, Sex offender. Statute, Retroactive statute.

CIVIL ACTION commenced in the Superior Court Department on May 20, 2004.

The case was heard by Charles T. Spurlock, J., on a motion for judgment on the pleadings.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Lawrence P. Murray for the plaintiff.

Daniel A. Less, Special Assistant Attorney General, for the defendant.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Cordy, & Botsford, JJ.


On September 13, 1979, the plaintiff, John Doe, then twenty-two years of age, tendered an Alford plea, see North Carolina v. Alford, 400 U.S. 25 (1970), to a charge of rape. G.L. c. 265, § 22. [FN1] He was sentenced to a two-year term of probation which he completed without incident on September 9, 1981. Twenty-two years later, on November 10, 2003, the Sex Offender Registry Board (board) notified Doe that pursuant to G.L. c. 6, §§ 178C-178Q, the sex offender registration law (registration law), [FN2] it was reviewing his case to make a recommendation regarding his duty to register with the board and his classification level. See G.L. c. 178L (1); 803 Code Mass. Regs. § 1.01 (2002). Doe was given thirty days to submit documentary evidence "relative to his risk of reoffense, the degree of dangerousness posed to the public and his duty to register." 803 Code Mass. Regs. § 1.05(1) (2002). Doe submitted documentary evidence to the board to the effect that he had established a stable life in the community, with a strong network of family and friends, that he had been married for twenty-one years, had raised three accomplished children, and had maintained steady employment with increasing levels of responsibility over the years. Doe had not been convicted of any crime since his 1981 discharge from probation.

On December 31, 2003, the board recommended that Doe be required to register as a level one sex offender. A level one classification is the classification given to sex offenders whose risk of reoffense is low. [FN3] Doe was informed of his right to request an evidentiary hearing to challenge his classification and registration obligation. See G.L. c. 6, § 178L (1); 803 Code Mass. Regs. §§ 1.06(1), 1.07(1) (2002). On January 11, 2004, Doe requested a hearing, and the matter was assigned to a hearing examiner. [FN4] See G.L. c. 178L (1) (c ); 803 Code Mass. Regs. § 1.07(2) (2002). The board then filed a motion for a required finding that Doe be classified as a level one offender (without a hearing) because as a matter of law, a person previously convicted of a sexually violent offense (such as rape) [FN5] was required to register regardless whether he posed any risk of reoffense or danger to the public, and a level one classification was the least intrusive designation that Doe could obtain under the registration law. The board acknowledged that, although in some circumstances, it could relieve a sex offender of the duty to register and could remove registration information from the registry, [FN6] such relief could not be granted where, as here, the offender had been convicted of a sexually violent offense. See G.L. c. 6, § 178K (2) (d ).

In response to the board's motion, the hearing examiner issued an order granting Doe leave to file a rebuttal statement addressing only whether the conviction information presented by the board was accurate, whether he was an adult at the time of his offense, and whether the facts otherwise suggested any exception to the registration requirement of G.L. c. 6, § 178K (2) (d ). The order further stated that if, as an adult, Doe had committed a sexually violent offense, annual registration as a sex offender was mandatory pursuant to § 178K (2) (d ).

On April 20, 2004, Doe submitted a rebuttal statement in which he claimed that his duty to register was not automatic by virtue of his conviction of a sexually violent offense. In particular, Doe took issue with Section D of the board's "Classification Worksheet," which stated that "[o]ffender currently presents some risk to reoffend and a degree of dangerousness." [FN7] Doe asserted that there was no basis in the record for this conclusion, and that he had a right to challenge it at a hearing. Doe further argued that if G.L. c. 6, § 178K, mandated that he register solely because of his prior conviction, then the application of the statute to him violated his due process rights under the Massachusetts Declaration of Rights.

Notwithstanding Doe's request for a hearing, none was held. By order dated April 22, 2004, the hearing examiner directed Doe to register with the board as a level one sex offender, in accordance with G.L. c. 6, § 178K (2) (a ). At the time of the order, there was no evidence that Doe's behavior during the intervening decades since his plea indicated that he posed any risk of reoffense or danger "to the vulnerable members of our communities" that the registration law was intended to protect, [FN8] a circumstance essentially acknowledged by the hearing examiner. The examiner concluded, however, that because the crime of rape was specified as a "[s]exually violent offense" under G.L. c. 6, § 178C, Doe could be granted no relief from his obligation to register, irrespective of any showing that he posed no such risk. See G.L. c. 6, §§ 178E (e ), 178G, 178K (2) (d ).

Doe filed a complaint for judicial review of the board's decision in the Superior Court, asserting that his substantive and procedural due process rights under the Massachusetts Declaration of Rights were violated because he was not afforded a hearing to challenge the board's classification recommendation, and there was no evidence to suggest that he posed a danger to anyone so as to necessitate registration. Doe's motion for judgment on the pleadings under Mass. R. Civ. P. 12(c), 365 Mass. 754 (1974), was denied and he was ordered to register as a level one sex offender. Doe filed a timely notice of appeal, and we transferred the case from the Appeals Court on our own motion. For the reasons that follow, we agree that the board's determination that Doe had a mandatory obligation to register annually, solely by virtue of his prior conviction, violates Doe's due process rights as protected by the Massachusetts Declaration of Rights. [FN9] Consequently, we vacate and remand the case to the board to allow Doe to present evidence that he poses no risk to reoffend and thus should not be required to register.

1. Discussion. The genesis of the duty to register traces back to 1996, when the Legislature first enacted a registration law. G.L. c. 6, §§ 178C-178O. St.1996, c. 239, § 1. The registration requirements and notification provisions were subsequently held to be unconstitutional, and its implementation enjoined in 1997. Doe v. Attorney Gen., 426 Mass. 136 (1997). The registration law was rewritten in 1999, St.1999, c. 74, § 2, see note 2, supra, and now applies to all persons convicted of certain sex offenses, including persons convicted long before its enactment. [FN10] Specifically, it applies to persons convicted of a designated sex offense whose "incarceration or parole or probation" had been completed "on or after August 1, 1981." G.L. c. 6, § 178C. Because Doe's probation ended on September 9, 1981, he is subject to the requirements of the 1999 law.

As the board acknowledges, it has authority to relieve some sex offenders of the obligation to register if they establish "that the circumstances of the[ir] offense [and] criminal history do not indicate a risk of reoffense or a danger to the public." G.L. c. 6, § 178K (2) (d ). But the 1999 statute mandates that those who have committed a "[s]exually violent offense," which includes rape (G.L. c. 6, § 178C), may never be excused from registration; the obligation is lifetime in duration. G.L. c. 6, §§ 178G, 178K (2) (d ). Thus, Doe was not permitted to challenge the board's determination that he posed a risk of reoffense to vulnerable offenders of our communities. This case presents the circumstance we noted, but did not need to decide, in Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750 (2006) (Doe No. 1211 ), where the record would establish "that Doe poses no risk at all [of reoffense]" and the application of the statutory provisions that permanently foreclose his being relieved of the duty to register may be "constitutionally vulnerable." Id. at 762. [FN11]

a. Retroactivity. In mentioning the registration law's constitutional vulnerability in Doe No. 1211, we did not distinguish between its retrospective and prospective application. However, retroactive statutes raise particular constitutional concerns. "The Legislature's unmatched powers allow it to sweep away settled expectations suddenly and without individualized consideration. Its responsivity to political pressures poses a risk that it may be tempted to use retroactive legislation as a means of retribution against unpopular groups or individuals." Landgraf v. USI Film Prods., 511 U.S. 244, 266 (1994). This risk is acute in the context of people who have committed crimes that have a sexual component, who are frequently the target of public ire and scorn.

Inquiry into whether the registration law has been unconstitutionally applied to Doe begins with an examination whether the registration law is retroactive in its application. We confronted a similar challenge to the application of the sexually dangerous person act, G.L. c. 123A (SDP act), to persons convicted of sex offenses prior to the SDP act's amendment in 1999. See Commonwealth v. Bruno, 432 Mass. 489, 497-499 (2000). We concluded that although a prerequisite for civil commitment under the SDP act was the commission of a sexual offense, and convictions occurring prior to the enactment of the SDP act could be used to satisfy that prerequisite, the statute's application was nonetheless not retroactive. Id. at 498. In reaching this conclusion, we held that the "requisite sexual offense convictions determine only the persons eligible for potential civil commitment, and [are] not the basis for commitment." Id. The basis of the commitment or, as we stated, "the conduct triggering the statute's application," was the person's "current mental condition" and consequent present sexual dangerousness, thereby making the application of the SDP act prospective. Id. [FN12] In other words, the enactment of G.L. c. 123A did not attach "new legal consequences to events completed before its enactment." Id., quoting Landgraf v. USI Film Prods., supra at 270.

The same could be said of the registration law if a conviction for sexual offenses predating its enactment subjected a person only to potential registration and classification, or even a presumption of registration, with the ultimate registration requirement tied to an assessment (by the board) of the person's current level of dangerousness and risk of reoffense. With respect to some sex offenders, that is how the law operates. See G.L. c. 6, § 178K (2) (d ). See also id. at § 178E (c ), (f ). However, with respect to Doe, his conviction of rape, a "[s]exually violent offense" as defined by G.L. c. 6, § 178C, makes the statutory presumption of risk conclusive. G.L. c. 6, §§ 178C, 178G, 178K (2) (d ). The sole basis for the requirement that Doe register, therefore, is the fact that he pleaded guilty to rape in 1979. Thus, in Doe's case, the registration law attaches new legal consequences to events that occurred before its enactment, and must be considered retroactive for the purposes of further constitutional inquiry. See Commonwealth v. Bruno, supra at 498-499 (discussing "new consequence" formulation of retroactivity).

A retroactive statute that imposes an additional punishment on past, and already punished, criminal behavior undoubtedly runs afoul of double jeopardy prohibitions. [FN13] We have said, however, that the registration law is generally regulatory rather than punitive. See Commonwealth v. Bruno, supra at 499-502; Opinion of the Justices, 423 Mass. 1201, 1224-1227 (1996). See also Powers v. Commonwealth, 426 Mass. 534, 538-539 (1998), quoting Hudson v. United States, 522 U.S. 93, 99 (1997) (in determining whether civil sanctions constitute punishment, we must consider whether law was intended to be civil, and, if so, whether statutory scheme was "so punitive either in purpose or effect" as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty"). [FN14] While nonpunitive retroactive regulation is not unconstitutional per se, it nonetheless raises due process concerns. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 189-190 (1978).

Retroactive laws must meet the test of "reasonableness" to comport with State constitutional due process requirements. Id. at 190. "[O]nly those retroactive statutes 'which, on a balancing of opposing considerations, are deemed to be unreasonable, are held to be unconstitutional.' " St. Germaine v. Pendergast, 416 Mass. 698, 702 (1993), quoting Leibovich v. Antonellis, 410 Mass. 568, 577 (1991). The burden is on the challenger to make a factual showing that the statute is irrational in its application. Ultimately, the "principal inquiry--as to reasonableness--is essentially a review of whether it is equitable to apply the retroactive statute against the plaintiffs." American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 191.

In determining whether the application is equitable--and thus whether the regulation is reasonable--we examine the statute from three perspectives: "the nature of the public interest which motivated the Legislature to enact the retroactive statute; the nature of the rights ... affected retroactively; and the extent or scope of the statutory effect or impact." Id. [FN15]

b. The nature of the public interest. In contrast to American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 192-193, and Leibovich v. Antonellis, supra at 577-578, where the court was required to consider what could or may have been the motivating reasons for the Legislature to enact the statutes that were at issue, in the case of the registration law, the Legislature was explicit regarding the public interest it was seeking to protect and advance. The purpose behind the registration law, as stated in the emergency preamble to its revision in 1999, is to protect "the vulnerable members of our communities from sexual offenders." In particular, the Legislature found that "the danger of recidivism posed by sex offenders, especially sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior, to be grave and that the protection of the public from these sex offenders is of paramount interest" (emphasis added). St.1999, c. 74, § 1. It also found that "law enforcement agencies' efforts to protect their communities" from sex offenders are "impaired by the existing lack of information known about sex offenders who live within their jurisdictions"; the registration of sex offenders is a proper exercise of police powers "regulating present and ongoing conduct, which will provide law enforcement with additional information critical to preventing sexual victimization"; and that the "registration by sex offenders is necessary in order to permit classification of such offenders on an individualized basis according to their risk of reoffense and degree of dangerousness " (emphasis added). Id.

There is no dispute that "[s]ex offenders are a serious threat in this Nation," Connecticut Dep't of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003), quoting McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion), and that the public interest in protecting vulnerable members of the community from sexual predators is a compelling one. But it is nearly impossible to conclude that this interest and the statute's defined purposes are served by imposing, without any opportunity for classification "on an individualized basis," a registration requirement on a person who committed a single sexual offense more than twenty-four years before the board's imposition of the requirement, and whose demonstrable record since that time contains no evidence whatsoever of "predatory [sexual] acts characterized by repetitive and compulsive behavior." [FN16]

c. The nature of the rights affected. The rights affected by the registration requirement, while not fundamental, are nevertheless substantial. [FN17] As applied, the registration law requires Doe to register annually and requires the Commonwealth annually to inform local and Federal law enforcement officers that, in its view, Doe presents a risk of committing a sex offense, despite his conduct between 1979 and the present that demonstrates otherwise. Doe v. Attorney Gen., 426 Mass. 136, 144 (1997). See Roe v. Attorney Gen., 434 Mass. 418, 453 (2001) (Marshall, C.J., concurring in part and dissenting in part). If Doe is forced to register, even though his information would not be released publicly, he would nevertheless be "singled out and brought to the attention of the law enforcement agencies in the municipalities in which [Doe] live[s] and work[s]." Id. at 450 (Marshall, C.J., concurring in part and dissenting in part). Thus, in the eyes of those entrusted with enforcing the law, he would be forever viewed as a threat to the most vulnerable members of the Commonwealth, left to suffer the consequences of such an unsavory designation. [FN18]

Although Doe was not afforded "any opportunity to show what he likely could: that he is not a danger to children or other vulnerable persons," he would now be obligated to register or face criminal penalties. Id. at 449 (Marshall, C.J., concurring in part and dissenting in part). We have noted that such registration presents an "importantly distinct kind of constitutional danger," because it "forces an action on the person required to register. It is a continuing, intrusive, and humiliating regulation of the person himself." Doe v. Attorney Gen., supra at 149 (Fried, J., concurring). Ultimately, Doe would be required to acquiesce to the State's determination that he poses a continuing threat of reoffense, and regularly provide the board with his home and work addresses. He would be forced to say annually, and without regard for the past one-quarter century, "I am a sex offender, and here is where to find me." Such a requirement would fundamentally change the nature of the relationship between Doe and State, and would be "in principal quite alien to our traditions." Doe v. Attorney Gen., 430 Mass. 155, 162 (1999), quoting Doe v. Attorney Gen., 426 Mass. 136, 150 (1997) (Fried, J., concurring). [FN19]

d. The extent of the abrogation of the asserted rights. The burden imposed by the retroactive statute must be reasonable in scope and extent. In making that determination, we have asked whether the imposition is short-term, or of infinite duration. American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., 374 Mass. 181, 196 (1978). We have also considered whether the scope of the statute is narrowly drawn to treat the problem perceived by the legislature. Leibovich v. Antonellis, 410 Mass. 568, 579-580 (1991); American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra. Here, the registration requirement is properly viewed as a "continuing, intrusive, and humiliating regulation of the person himself." Doe v. Attorney Gen., supra at 149 (Fried, J., concurring). It is imposed yearly, without exception, and in Doe's case, it "shall never be terminated." G.L. c. 6, § 178G. "Offenders cannot shorten their registration or notification period, even on the clearest demonstration of rehabilitation ... [h]owever plain it may be that a former sex offender currently poses no threat of recidivism, he will remain subject to long-term monitoring and inescapable humiliation." Smith v. Doe, 538 U.S. 84, 117 (2003) (Ginsburg, J., dissenting).

2. Conclusion. When considering the retroactive application of civil statutes, we balance "opposing considerations." Leibovich v. Antonellis, supra at 577, quoting American Mfrs. Mut. Ins. Co. v. Commissioner of Ins., supra at 189-190. Here, the requirements the registration law would impose on Doe are extensive and permanent. Moreover, if Doe can establish that he poses neither a risk of reoffense nor a danger to the communities the law was intended to protect, the imposition of the registration law's requirements on him would not further the law's substantial and important purposes. Consequently, the retroactive imposition of the registration requirement without an opportunity to overcome the conclusive presumption of dangerousness that flows solely from Doe's conviction, violates his right to due process under the Massachusetts Constitution.

Doe must be granted the hearing he has requested, in accordance with the procedure set forth in G.L. c. 6, § 178L, where he will have the opportunity to demonstrate that he neither poses a risk of reoffense nor is a current danger to vulnerable members of our communities.

The Superior Court decision is vacated. The case is remanded to the board for an evidentiary hearing.

So ordered.

FN1. "Under Alford, a defendant who professes innocence may nevertheless plead guilty and 'voluntarily, knowingly and understandingly consent to the imposition of a prison sentence,' if the State can demonstrate a 'strong factual basis' for the plea." Commonwealth v. DelVerde, 398 Mass. 288, 297 (1986), quoting North Carolina v. Alford, 400 U.S. 25, 37-38 (1970). "Whether the defendant admits to the crime in open court, or the Commonwealth shows the factual basis for the plea, a court may not convict unless there are sufficient facts on the record to establish each element of the offense." Commonwealth v. DelVerde, supra.

FN2. The applicable version of the sex offender registration statute being reviewed is set forth in St.1999, c. 74, § 2, as amended through St.2003, c. 77.

FN3. Pursuant to G.L. c. 6, § 178K (2) (a ), the Sex Offender Registry Board (board) shall give a level one designation to a sex offender "[w]here the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is served by public availability [of information pertaining to the offender]." See 803 Code Mass. Regs. § 1.03 (2002) (defining level one offender). Further, "[i]n such [a] case, the board shall transmit the registration data and designation to the police departments in the municipalities where such sex offender lives and works and attends an institution of higher learning ... and where the offense was committed and to the Federal Bureau of Investigation. The police shall not disseminate information to the general public identifying the sex offender where the board has classified the individual as a level 1 sex offender. The police and the board may, however, release such information identifying such sex offender to the department of correction, any county correctional facility, the department of youth services, the department of social services, the parole board, the department of probation and the department of mental health, all city and town police departments and the Federal Bureau of Investigation." G.L. c. 6, § 178K (2) (a ). See 803 Code Mass. Regs. §§ 1.27(2), 1.28 (2002).

FN4. Pursuant to 803 Code Mass. Regs. § 1.10(1) (2002), "[t]he hearing shall be a de novo review and be limited to determining by a Preponderance of the Evidence the sex offender's duty to register and his Final Classification. The Board shall bear the burden of proof." See 803 Code Mass. Regs. § 1.38(4) (2002) (at hearing, "all relevant evidence is evaluated anew by a disinterested Hearing Examiner"). "The Hearing Examiner's decision shall be the final Sex Offender Registry Board decision. For purposes of judicial review, this decision shall be considered the final agency action." 803 Code Mass. Regs. § 1.23 (2002).

FN5. The crime of rape, G.L. c. 265, § 22, is included in the definitions of both "[s]ex offense" and [s]exually violent offense" under G.L. c. 6, § 178C.

FN6. In those instances where an offender seeks to be relieved of a registration obligation, "[t]he board may, upon making specific written findings that the circumstances of the offense in conjunction with the offender's criminal history do not indicate a risk of reoffense or a danger to the public and the reasons therefor, relieve such sex offender of any further obligation to register, shall remove such sex offender's registration information from the registry and shall so notify the police departments where said sex offender lives and works ... and where the offense was committed and the Federal Bureau of Investigation." G.L. c. 6, § 178K (2) (d ). The offender has the burden of proof in establishing that he comes within the provisions of § 178K (2) (d ). See 803 Code Mass. Regs. § 1.37A (2002) (relief from registration obligation).

FN7. A "Classification Worksheet" is "[a] form developed and approved by the Board that reflects the Recommendation Process, shows the foundation for each recommended registration and classification determination, and indicates the Board's recommended registration and classification determination for each offender." 803 Code Mass. Regs. § 1.03. As part of the registration process, the board is required to "review the information in an offender's case file prior to completing the Classification Worksheet." 803 Code Mass. Regs. § 1.39(3) (2002). "Since, in requesting [a] hearing, the offender shall be deemed to have rejected the Board's recommendation, and, to ensure that the sex offender is provided an additional opportunity to present any relevant evidence bearing on his obligation to register and classification level, the Hearing Examiner shall not be bound by the Board's Recommendation Process, Classification Worksheet, or recommended finding as described in 803 [Code Mass. Regs. § ] 1.39. Rather, the Hearing Examiner shall base his decision on the totality of all the relevant evidence introduced at the offender's individualized hearing...." 803 Code Mass. Regs. § 1.38(4).

FN8. The stated purpose of the sex offender registration law, G.L. c. 6, §§ 178C-178Q, is to protect "the vulnerable members of our communities from sexual offenders." St.1999, c. 74, emergency preamble.

FN9. Doe raised due process claims only under the Massachusetts Constitution. "Part II, c. 1, § 1, art. 4, of the Massachusetts Constitution, and arts. 1, 10 and 12 of its Declaration of Rights are the provisions in our Constitution comparable to the due process clause of the Federal Constitution." Pinnick v. Cleary, 360 Mass. 1, 14 n. 8 (1971).

FN10. Statute 1999, c. 74, § 2, was amended through St.2003, c. 77, and again by St.2004, c. 149, § 13. See note 2, supra.

FN11. In Doe, Sex Offender Registry Bd. No. 1211 v. Sex Offender Registry Bd., 447 Mass. 750 (2006), we held that requiring an individual who has committed a sexually dangerous offense to register as a level one sex offender did not violate State due process protections on its face. Id. at 759.
Thus, to the extent Doe raises a facial challenge to the law, that challenge fails.

We did leave open the possibility of the "as applied" challenge that Doe raises in this case: "[W]hether an offender who is found by an examiner to pose absolutely no risk to children can, consistent with constitutional protections, be compelled to register, may be left for decision to another day." Id. at 762. Indeed, "if the record established that Doe poses no risk at all, then the statute and regulation, considered on an as applied basis, might be constitutionally vulnerable." Id.

FN12. The mental condition and present sexual dangerousness determinations under G.L. c. 123A are of course made after a trial, see G.L. c. 123A, § 14, at which the person whom the Commonwealth seeks to commit is afforded almost all of the rights afforded defendants in criminal cases. See generally Commonwealth v. Bruno, 432 Mass. 489, 507-511 (2000).

FN13. "Although not expressly included in the Massachusetts Declaration of Rights, [we have] long recognized a State common-law and statutory prohibition against double jeopardy." Powers v. Commonwealth, 426 Mass. 534, 537 n. 5 (1998). See Thames v. Commonwealth, 365 Mass. 477, 479 (1974); G.L. c. 263, § 7. Additionally, "[c]ertain double jeopardy concepts are no doubt embraced within the Massachusetts Constitution's due process of law provisions...." Commonwealth v. Forte, 423 Mass. 672, 674 (1996).

FN14. We do, however, share the concern expressed by Justice Souter when he discussed the Alaska Sex Offender Registration Act, 1994 Alaska Sess. Laws c. 41, in Smith v. Doe, 538 U.S. 84, 109 (2003) (Souter, J., concurring in the judgment): "The fact that the Act uses past crime as the touchstone, probably sweeping in a significant number of people who pose no real threat to the community, serves to feed suspicion that something more than regulation of safety is going on; when a legislature uses prior convictions to impose burdens that outpace the law's stated civil aims, there is room for serious argument that the ulterior purpose is to revisit past crimes, not prevent future ones."

FN15. Our analysis of retroactive civil regulation often comes in the context of the retroactive creation or expansion of tort liability, or the retroactive imposition of taxes. See Pielech v. Massasoit Greyhound, Inc., 441 Mass. 188, 195 (2004) (expansion of employer liability for employment discrimination based on religious beliefs could not be applied retroactively); St. Germaine v. Pendergast, 416 Mass. 698, 703-704 (1993) (retroactive application of statute imposing liability on single-home construction permit holder for injury to worker unreasonable and did not comport with due process); Leibovich v. Antonellis, 410 Mass. 568, 578-580 (1991) (statute authorizing parents to bring claims for loss of consortium of child applied retroactively); Keniston v. Assessors of Boston, 380 Mass. 888, 904-905 (1980) (four-year retroactive imposition of tax unconstitutional, time period "oppressive and unjust"). The three-part test is, therefore, largely tailored to cases involving retroactive financial liabilities. The same considerations, however, should be applicable here. As art. 10 of the Massachusetts Declaration of Rights states, "Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing Laws." Liberty, like property, therefore, must be protected from unreasonable infringement by retroactive laws. Cf. Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 320-323, 326 (2001) (construing Federal statute that eliminated relief-from-deportation provision in prior law for resident aliens convicted of aggravated felonies as operating prospectively only, in light of new disabilities imposed by new law on aliens who had previously pleaded guilty to felonies); Olatunji v. Ashcroft, 387 F.3d 383, 389-396 (4th Cir.2004) (same law, same conclusion as applied to resident alien who previously pleaded guilty to theft of government property).

FN16. As we noted in Pielech v. Massasoit Greyhound, Inc., supra at 195, the inquiry is not only whether the Legislature's stated public interest is important, but also whether that interest is reasonably served by the statute. There, the court did not question "whether there [was] an important public interest at stake in prohibiting discrimination against persons for their sincerely held religious beliefs--there obviously [was] such an interest." Id. Instead, the court asked whether that interest was reasonably achieved by the retroactive application of the legislation, and concluded that it was not. Id.

FN17. We have noted in the context of civil statutes that, "[g]enerally, persons challenging a retroactive statute must show that they acted in reasonable reliance upon the previous state of the law." Leibovich v. Antonellis, supra at 578. But see St. Germaine v. Pendergast, supra at 703- 704 (retroactive application of statute imposing new obligations and potential tort liability on defendant's past conduct in obtaining and working under permit for construction of one single-family home violates defendant's due process rights without showing of actual reliance on law as it had existed). While an argument that Doe reasonably relied on the state of the law in 1979 (when there was no registration law) is not persuasive here, that fact alone is not dispositive. An individual, like Doe, who has committed a crime, served his sentence, and reformed his life has a justified expectation that he will not at some time in the distant future be automatically branded as a public danger in the eyes of law enforcement, and required annually to register as such, without consideration of his behavior since 1979. Cf. Keniston v. Assessors of Boston, supra at 904 (in context of retroactive tax legislation, period of retroactivity cannot extend so far back as to be oppressive and unjust); Olatunji v. Ashcroft, supra at 396 (expressly rejecting idea that reliance on old statutory framework required before retroactivity will be considered unconstitutionally repressive in context of deportation for past crimes). "To be reminded again and again of an offense years past ... that does not menace any vulnerable person now but that is swept into a grim, categorized term, 'sex offense,' would not be seen by most Americans as a minimal imposition." Roe v. Attorney Gen., 434 Mass. 418, 452 (2001) (Marshall, C.J., concurring in part and dissenting in part).

FN18. "[I]t is the dissemination to law enforcement officials of a government-endorsed list of persons who in the eyes of the State are at risk of reoffending that raises due process concerns.... Dissemination of such data signals law enforcement officials to focus their attention on these persons simply because the Legislature has, as a general matter, labeled them public dangers." (Citation omitted.) Roe v. Attorney Gen., supra at 443 (Cowin,
J., concurring). See id at 449, 453-454 (Marshall, C.J., concurring in part and dissenting in part). See also Doe v. Attorney Gen., 426 Mass. 136, 144 (1997) (person has protected liberty and privacy interests implicated by requirement to register and notify police of sex offender status; most important factor involved is "the statutory branding of him as a public danger, a sex offender. The statutory classification implicitly announces that, in the eyes of the State [he] presents a risk of committing a sex offense").

FN19. The Supreme Court of Hawaii described a similar lifetime registration requirement as follows: "The effects of lifetime registration are similar to the effects of ... lifetime surveillance ... as described by the Supreme Court in Weems v. United States, 217 U.S. 349, 366 (1910): 'His prison bars and chains are removed, it is true, ... but he goes from them to a perpetual limitation of his liberty. He is forever kept under the shadow of his crime, forever kept within voice and view of the criminal magistrate, not being able to change his domicile without giving notice to the "authority immediately in charge of his surveillance;" and without permission in writing. He may not seek, even in other scenes and among other people, to retrieve his fall from rectitude. Even that hope is taken from him....' " State v. Guidry, 105 Hawai'i 222, 229 (2004). Stated differently, "[t]he registration requirement imposes unending governmental regulation of basic life activities despite the completion of, and following any criminal sentence " (emphasis in original). Id. ..more..

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House vote rejects cuts to law enforcement grants

3-14-2008 Washington D.C.:

Washington, D.C. - The budget approved by the U.S. House on a 212-207 vote Thursday rejected proposed administration cuts to law enforcement grants as well as changes in the program, said Rep. Dave Loebsack, a Mount Vernon Democrat.

Loebsack said the budget would provide full funding for the Edward Byrne Memorial Justice Assistance Grant program. In Iowa, the grant money is used for drug investigations, and Iowa law enforcement officials have been vocally unhappy in recent weeks about cutbacks.

House Budget Committee Chairman John Spratt, D-S.C., said in a statement that Loebsack's testimony to the committee asking for more money for the grants "played a valuable role" in the committee's decision. The grants are important to local law enforcement officials as they fight drugs, Spratt said.

Full funding would mean the program would receive about $1 billion during the upcoming budget year, about the same as it received in 2005, congressional aides said. However, the budget is a blueprint and actual spending levels have yet to be determined.

President Bush's proposal eliminated all direct grants for the program and replaced them with $200 million in competitive grants, which would have pitted law enforcement agencies against each other and left Iowa $1.6 million short compared to previous allocations, aides said. The program has faced repeated cuts during the past five years.

The Byrne program is named for a rookie New York City police officer killed by drug dealers in 1998. ..more.. by Reporter Jane Norman can be reached at (202) 906-8137 or at

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AZ- Your Views: It's easy to hate sex offenders

3-14-2008 Arizona:

It's easy to hate sex offenders


I am a counselor who has worked with sex offenders every week for years. I have put in more hours than anyone I know in northern Nevada working to help prevent new sex crimes in our state, so it is with an informed opinion that I read Mr. Lindberg's February 22, 2008, comments on the topic.

I can tell you that both he and the irresponsible decision-maker who posted such a self-serving rant did nothing to serve the community's interests in publishing such thinly veiled vigilantism.

I, too, am a businessman in the community; I, too, am a father and a grandfather. I, too, am outraged by the same events that horrify all of us.

But never in my wildest dreams did I ever think as a man that it would be right to glorify my own darker self-indulgent revenge fantasies in a public display of self-righteousness. Such violent fantasies are viscerally satisfying, but represent a childish approach to public policy.

First of all, the vast majority of convicted sex offenders are hardly up to the standard of "predator." Face it, the word "predator" is overused.

Consider: a 17-year-old teenager who turns 18 after a year of having sex with his 15-year-old girlfriend is guilty now of Statutory Sexual Seduction and is required to register as a sex offender for the rest of his life.

Consider: a pathetic drunk who, in his inebriated stupor, steals booze, gets in an altercation and then exposes himself to passersby is hardly worthy of the word "predator," yet he, too, will have to register for the rest of his a sex offender.

Surely I am not the only one out there old enough to remember "Laugh In" and the actor in the trench coat who made us all laugh by exposing himself?

How have we been so easily manipulated to fear and hate what we once found pathetic or even humorous?

Many sex crimes are far more serious than these, but Nevada does an incredibly good job of incarcerating virtually forever those sex offenders who are not amenable to treatment or whose crimes are so horrific that we cannot abide their release.

Others who do not meet this level are released because their crime is hardly deserving of the death penalty--particularly at the hands of enraged family members wielding baseball bats as Mr. Lindberg suggests would be best.

Treatment does work. It's always sensational to seek out the naysayers and urban mythmakers who profess to know because the truth is far less titillating.

For the last six years the recidivism rate in our program has been hovering at 1%. That's a 99% success rate.

Just read about the next 100 sex crimes in our community (as easily found in the newspaper)--you'll find that over 95% were committed by first time offenders. It is not the previously convicted offender who poses the greatest risk, it's the unknown future offender.

By so stigmatizing sex offenders as Mr. Lindberg has done, we create vast public reservoirs of shame which contributes to our inability to even discuss sexual thoughts, feelings and behavior that might not be to Mr. Lindberg's liking.

If sex offenders are sick, an idea of Mr. Lindberg's that I agree with, then sex crimes are a public health problem. Like AIDS, cholera, smoking, and every other public health problem, our tools are information, education and rational thinking.

Getting mad and indulging in baseball bat fantasies is useless, self-defeating and counterproductive to community safety.

Like Mr. Lindberg. I am a conservative. I am a Republican, I own guns, I'm against abortion; but I do not see a problem with an overabundance of liberal judges as does Mr. Lindberg. Our judges in Nevada generally do a pretty good job--their knowledge of the offense and the law make it clear they are the ones to make the tough sentencing decisions.

What's really going on here though, if you stop and just think, is that we Americans have some sort of weird blind spot when it comes to sexual crimes.

Sure, as a parent, I'd like to know about the dangerous people in my neighborhood: but so long as we're outing sex offenders why wouldn't we list convicted drug abusers, meth manufacturers, those convicted of domestic violence, and why not all the drunks convicted of drinking in public and DUI?

Aren't all of these people dangerous to our children?

If we made such a list. of course. eventually we'd find it easier to list those good folk not on the other least not yet.

It's easy to hate sex offenders. We've made it easy by using sex offender registries and public exposure to label them the way the Nazi's did the Jews with their yellow stars.

In this way, we've created the last class in society that it's politically fashionable to hate.

But since when has hate and fear ever informed public discourse?

When has hate and fear ever protected future victims from attack?

When has hate ever solved anything?

To jail the 300 men and women I've worked with over the last 10 years would have cost our state $90 million. Couldn't we do something better with that money?

Sex crimes are crimes of secrecy, and when the secret ends, the criminality generally ends with it.

We all need to be better informed about sex crimes and what is being done about them. To that end, I challenge the editors of this paper, and Mr. Lindberg himself, to sit in on a group therapy session of men previously convicted of sex crimes who are working to better themselves.

These men look forward to letting you see who they are and what they are doing--all they want is a chance to put their mistake behind them and build a life with their families.

Call me and I'll set it up.

P.S. You can leave the baseball bats at home, they're a very civilized crowd.

Steven Ing

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Is the Fifth Amendment Password Protected?

3-14-2008 National:

We are cautioned to create undecipherable passwords and personal identification numbers to protect our privacy, identity and property. On the flip side, these protections may be put to the test in a criminal investigation.

Until recently, the Fifth Amendment provided guidance in responding to demands for keys to lock boxes and combinations for safes. Now suspects are being asked to disclose information that will access computer hard drives and open encrypted files. How far will the Constitution protect the right against self-incrimination in light of increasingly sophisticated means of securing computer contents?

Secret writing is as old as writing itself, underscoring the longstanding interest in the privacy of communications and records. Even those early Americans who conceived and ratified the constitutional protection against self-incrimination lived through an era of ciphers and codes spawned by the Revolutionary War.

Now, the steady evolution of electronic privacy measures is leading us into new territory and new interpretations of that constitutional protection.

In Doe v. United States,[FOOTNOTE 1] the U.S. Supreme Court decided that a grand jury subpoena compelling petitioner to sign a dozen bank disclosure forms for any records of accounts in three different institutions did not violate the Fifth Amendment. Although conceding "acts that imply assertions of facts" are testimonial, Justice Harry Blackmun concluded that the forms were not communicative since they did not refer to specific accounts, confirm their existence or demonstrate control by petitioner -- in other words, no authentication.

The Court also pointed out that the consent form did not represent the contents of petitioner's mind. They analogized the disclosure document to a key used to open a strongbox as opposed to a combination to a wall safe.

The wall safe has been the classic repository of people's most private and treasured assets and documents. And as the forerunner to the password protected hard drive, it offers a glimpse of where lines might be drawn in assigning the Fifth Amendment privilege. ...much more to go... by Ken Strutin, New York Law Journal

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March 13, 2008

CA- Sex Offenders React To Tougher Residency Restrictions

3-13-2008 California:

BAKERSFIELD, Calif. -- Local sex offenders said they are fed up with yet another round of proposed restrictions on where they can live.

The ordinance being drafted by the Kern County Board of Supervisors would enhance Jessica's Law, passed in 2006, and would limit newly paroled sex offenders from living near school bus stops, churches, day care facilities, and other places where children gather. The ordinance would apply to all offenders regardless of whether they committed crimes against children.

"I don't expect pity," Hamilton Oser, a man who has been on the sex offender registry for 10 years, said.

"But I expect fairness. I expect freedom, what this country is based on."

Oser turned himself in to authorities in 1997, admitting to a lewd act with a minor seven years earlier. His admission led to an eight-month jail sentence and a lifetime on California's sex offender registry, an issue many sex offenders call excessive punishment.

"Haven't I done my time? Haven't I paid my price? How is it that one incident can totally define a person's character?" he asked.

The outcry for even tougher restrictions began after community activists found locations like the El Don Motel and Bakersfield Lodge were housing dozens of newly paroled sex offenders, since the state could put them nowhere else.

Sex offenders are concerned further residency restrictions will force them to live in the middle of nowhere. The U.S. is one of eight countries with public sex offender registries, and is the only country with residency restrictions on sex offenders, according to Human Rights Watch.

Blog Commentary: Nick 2.0 Talks Sex Offenders

Over the last year, the debate was focused on whether the state could house multiple offenders in the same location, according to Gordon Hinkle, spokesperson for the Department of Corrections and Rehabilitation. But now, even that may not be enough to appease residents.

In January, state officials met with the community regarding residency restrictions on sex offenders.

An estimated 1,500 registered sex offenders live in Kern County, and around 80 percent of those live in Bakersfield.

Residents in smaller towns said residency restrictions are forcing sex offenders to outlying areas, Tehachapi police chief Jeff Kermode said during the January meeting.

That prompted cities like Taft and Shafter to enact their own ordinances limiting where sex offenders can live, and now the county is considering its own restrictions.

The manner in which residents handle neighbors who are registered sex offenders vary by community.

In the last year, there have been multiple reports of violence nationwide by citizens against sex offenders, although there have been no reports of this in Kern County.

Instead, the activism has been mainly limited to flyers containing sex offenders' information being posted on churches or handed out to residents, or pranks committed against offenders' homes.

Oser recalled one recent event, in which his children were handed flyers with his information at their school bus stop by a parent.

"The lady at the bus stop passed a picture of me around without knowing my circumstances, and passed it to other kids right in front of my kids," he said.

He claims his house was subsequently littered with eggs several weeks later, believing that the children who received the flyers were resonsible.

"Where's the justice for my kids?" he said.

When asked about a recent account of a female victim who came to Bakersfield to post flyers about her attacker at his church, he offered some advice for what people should do.

"Hold me accountable for my actions, not my wife and kids, not my house," he said.

Oser said the time for sex offenders to keep quiet about the way they're treated by politicians and neighbors needs to end.

He said explaining to his children what he did was one of the hardest things to do in his life, but it helped him atone for his mistake.

He believes that politicians will not stop at sex offenders; that they will continue with registries for drug dealers, murderers and arsonists.

"Let them know that this isn't you," he said, referring to fellow registered sex offenders.

"What [strangers] want to say about you, whatever you did in the past doesn't define you as a person." ..more.. by Turn to 23 staff

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CA- Some prisoners are vulnerable to crime behind bars


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VA- Should The Police Be Allowed To Attach A GPS Tracking Device To Your Car Without A Warrant ?

3-13-2008 Virginia:

The Liberty Papers blog has quite an indepth discussion on this question, here are the facts of the case:

When Fairfax County police were trying to catch a man last month who had molested 11 women, they examined the Virginia sex offender registry and found a possible suspect. They looked at his background, which included a series of similar assaults, and his residence, which was not far from where the attacks were occurring.

Then, to try to catch him in the act, police slipped a small Global Positioning System device inside the bumper of the van driven by the suspect and began tracking him — without a search warrant and without consulting a prosecutor.

The tactic, officers say, was an almost instant success. The GPS device placed the van driven by David L. Foltz Jr., 40, in the vicinity of a sexual assault Feb. 5. And when officers began surveilling Foltz the next day, a Fairfax detective saw him drag a woman into a dark area in Falls Church and attack her. The officer rescued the woman and arrested Foltz.

Foltz’s attorney, Chris Leibig, said yesterday in Falls Church General District Court that placing the tracking device on the vehicle was a violation of Foltz’s protection against unreasonable search and seizure. Arlington County General District Court Judge Richard J. McCue disagreed, denying Leibig’s motion to suppress police testimony about events that occurred after the device was placed on Foltz’s van.

In the preliminary hearing that followed, a 46-year-old Falls Church woman testified that she was grabbed from behind and pulled into a dark area. Detective Matthew Charron said he saw the attack and knocked Foltz off the woman. McCue certified Foltz’s charges of abduction with intent to defile and sexual battery for the Arlington grand jury, which meets next week.

Foltz has not been charged in any of the 11 other similar assaults that have occurred in Fairfax and Alexandria, but police said no similar attacks have happened since he was arrested.

CLICK for the rest of the discussion. This is clearly worth the time to review if the 4th amendment interests you.

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