.By Mr. BIDEN (for himself and Mrs. BOXER)
S. 1738. A bill to establish a Special Counsel for Child Exploitation Prevention and Interdiction within the Office of the Deputy Attorney General, to improve the Internet Crimes Against Children Task Force, to increase resources for regional computer forensic labs, and to make other improvements to increase the ability of law enforcement agencies to investigate and prosecute predators; to the Committee on the Judiciary.
Mr. BIDEN. Mr. President, I rise today to introduce the Combating Child Exploitation Act of 2007. This legislation takes a bold step forward in addressing child exploitation.
And, Mr. President, let me assure you, we need bold action. We have taken some important steps here in the Senate, including passing the Jacob Weterling Act, the Pam Lyncher Act, the Amber Alert program, and last year's Adam Walsh Act.
But, this is a problem that keeps growing and growing, and we need bold action to address this problem. If we do not act, we will probably be back here naming a new bill after another unfortunate child victim.
The bottom line is that the Internet has facilitated an exploding, multi-billion dollar market for child pornography, with 20,000 new images posted every week. This is a market that can only be supplied by the continued sexual assault and exploitation of more children and the research shows that victims are getting younger and they are being exposed to more sadistic abuse.
The FBI and the Department of Justice have testified before Congress that there are hundreds of thousands of people trafficking child pornography in this country and millions around the world.
We are not making a dent in this problem.
Don't get me wrong, there are many Federal, State and local investigators and prosecutors out there working tirelessly, but need to do much more.
We have not dedicated enough Federal agents to this problem and we have not provided enough support for States and local government.
The most troubling aspect, one that led to the drafting of this legislation is that we know where many of these people are and if we set the right priorities we can go pick them up.
Let me repeat that, we have new investigative techniques that will allow us to identify many of the people who are trafficking child pornography and we can go pick them up.
A very conservative estimate is that there are more than 400,000 people who we know who are trafficking child pornography on the Internet in the U.S. right now.
We can, with minimal effort, take these people down. But, due to lack of resources we are investigating less than 2 percent of these cases. Again, we are only investigating 2 percent of the known child pornography traffickers.
We also know that when law enforcement agents do investigate these cases, there is a local abused child in 30 percent off the cases. And, research shows that at least 55 percent of child pornography possessors have previously sexually assaulted children or attempted to do so. So, by picking up these known offenders, we are saving children.
Finally, it is important to note that every time one of these images or videos are shared, the child is victimized again and again.
So, to help ensure that law enforcement has the capacity to get the job done, I am introducing the Combating Child Exploitation Act of 2007.
First, this legislation will establish a Special Counsel in the Deputy Attorney General's Office to coordinate all activities related to preventing child exploitation. This will be one person who will be held accountable for results.
We will also congressionally require that there be at least one Internet Crimes Against Children Task Force, CAC, in each State. This program is poised to become the backbone for our investigative efforts here in the U.S. by forming a network of highly trained investigators to focus exclusively on combating child exploitation. Under this bill, we will triple the funding for the ICAC program to help with hiring, training, and investigative resources to form this Nation-wide network.
In addition, we will authorize over 250 new Federal agents to focus exclusively on this problem, including 125 new FBI agents, which will double the number of agents under the Innocent Images Program at the FBI, 95 new agents for the Immigration and Customs Enforcement Agency, ICE, and 31 new postal inspectors.
This bill will help us form a coordinated effort to go after child predators. As stated previously, we know where many of these people are and we need to go get them.
In my view, it is inexcusable that we are not putting the resources toward tracking the ones down who we know about and doing much more to find the others who are lurking in the shadows.
This legislation will get us on the right track and I urge my colleagues to support this effort.
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September 14, 2008
September 13, 2008
Even sex offenders are entitled to protections of Constitution
Sex offenders are an unsympathetic lot, and deservedly so. But if the government is allowed to trample and shred the constitutional rights of even the tiniest, most shunned segment of the population, how long before authorities decide to take away yours?
U.S. District Judge James Mahan took the state of Nevada off that slippery slope Wednesday when he prevented the retroactive application of a law that would have reclassified more than 2,000 registered sex offenders.
The statute, approved last year to meet the standards of the federal Adam Walsh Act, aimed to reclassify sex offenders based on the crimes they've committed, rather than their perceived risk of re-offending.
As a result, hundreds of Tier 1 offenders who've completed prison terms, stayed out of trouble for years and been considered no threat to public safety suddenly would have been labeled Tier 3 offenders. Their photos and personal information would have been posted on the state's sex offender Web site, they would've had to check in with authorities every 90 days, and a few would have had to wear GPS monitoring devices. Many feared losing their livelihoods and their rebuilt reputations.
Judge Mahan correctly ruled that applying the law retroactively violated the Constitution's due process and double jeopardy protections. A decision on whether the law can be constitutionally applied to future convictions is pending in state court.
"We know that it's a brave thing to do to make a decision that affirms the rights of sex offenders," said ACLU of Nevada staff attorney Maggie McLetchie, whose organization brought the challenge to federal court on behalf of several plantiffs.
"It's about the limits on the power of government."
Amen. Aside from the constitutional concerns, there were legitimate public safety issues as well. How could the law-abiding public be expected to measure the risks to themselves and their families if, overnight, the number of Tier 3 sex offenders in Nevada grew from about 160 to more than 2,500? Would their children really be in danger if one day their neighborhood was deemed free of dangerous molesters and rapists, but the next day the state said there were two on the same street?
The ACLU and the federal court deserve a lot of credit for protecting not just the rights of sex offenders, but of all citizens. ..Opinion Source.. by Review Journal.com
BOSTON - Citing a possible gap in state law, a state Appeals Court judge on Friday threw out the conviction of a homeless sex offender in Greenfield for failing to notify authorities that he moved to a new residence.
Claude Bolling, a "Level 3" sex offender - meaning he is considered by the state to be at high risk of re-offending - registered his permanent address as "the streets of Greenfield" to comply with the state's sex offender registration laws. He also listed a postal box in neighboring Montague as a mailing address.
Under the law, sex offenders must provide police or the state at least 10 days notice of any change in residence.
Bolling was found guilty of breaking the law when police found he stayed several nights at a friend's apartment in Montague and did not tell authorities ahead of time. He was sentenced to a year in jail.
In Friday's decision, Appeals Court Judge Mark V. Green wrote that because of the transitory lifestyle of the homeless, it's difficult to apply the residential requirements of the state's sex offender law to homeless sex offenders.
Under the law, a Level 2 or 3 sex offender who lives in a homeless shelter must register every 90 days. But there is no such requirement on homeless sex offenders who don't reside in shelters. The law does not define what constitutes the home address of an offender, Green wrote.
In June 2006, Bolling registered his "streets of Greenfield" residential address and other information with the Greenfield police. In July, Bolling stayed three nonconsecutive nights in the apartment of a friend in Montague. He also occasionally visited his friend and may have stayed an unspecified number of nights at the apartment of another person in Montague, the court decision said.
Montague Sgt. Christopher Williams investigated Bolling after receiving information he was living on Fourth Street in the Turners Falls section of Montague. Williams arrested Bolling for failing to provide notice of a change of address as required under the registration rules of the state's sex offender law.
Greenfield District Court Judge William B. McDonough found Bolling guilty after a jury-waived trial and sentenced him to one year in jail.
The Appeals Court associate justice wrote that it's clear the evidence was insufficient to establish Bolling had changed his home address.
Sex offenders must register with a state board, which classifies them.
The judge said he had no information on the offenses that led to Bolling's classification. ..News Source.. by DAN RING
COMMONWEALTH vs. Claude BOLLING.
May 5, 2008. - September 12, 2008.
Sex Offender. Sex Offender Registration and Community Notification Act.
COMPLAINT received and sworn to in the Greenfield Division of the District Court Department on August 15, 2006.
The case was heard by William B. McDonough, J.
Michael J. Fellows for the defendant.
Cynthia M. Pepyne, Assistant District Attorney, for the Commonwealth.
Present: Gelinas, Cohen, & Green, JJ.
We are called upon to consider again the application of the Sex Offender Registration and Community Notification Act, G.L. c. 6, §§ 178C-178P, to homeless sex offenders. See Commonwealth v. Rosado, 450 Mass. 657 (2008); Commonwealth v. Scipione, 69 Mass.App.Ct. 906 (2007). The defendant, who registered with the Greenfield police department as a level 3 sex offender (listing his address as the "streets of Greenfield"), was arrested by police in the neighboring town of Montague after they received information that he had begun spending nights in the apartment of a resident of that town. On appeal, the defendant contends that the evidence at his jury-waived trial was insufficient to support his conviction. We agree and reverse the judgment.
Facts and procedural background. Viewed in a light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence at trial established the following facts. On June 6, 2006, the defendant came to the Greenfield police department to register as a level 3 sex offender. [FN1] Detective Laura Gordon assisted the defendant in filling out the registration form, by obtaining information from the defendant and filling in the blanks on the form. For the space designated "Permanent Address," the defendant specified "Streets of Greenfield, Franklin County, MA 01301." For the space designated "Mailing Address," the defendant specified "178 Avenue A--P.O. Box 84, Montague, Franklin County, MA 01376." [FN2] The space provided for "Temporary OR Out of State Address (If different than permanent)" was not completed; Detective Gordon drew a line through the space.
After completing the form, Detective Gordon read to the defendant the following notification, which appeared at the bottom of the registration form:
"You are advised that you must notify, in writing, the Sex Offender Registry Board or the Police Department in the city or town in which you reside not less than 10 days prior to any change in residence, employment, or attendance at an institute of higher learning. You are further advised that you are required to immediately contact and advise of your presence, the appropriate authorities in any other state in which you locate yourself for the purpose of residence, employment, or attendance at an institute of higher learning. Failing to do so may subject you to criminal prosecution."
After Detective Gordon read the advisory to the defendant, the defendant checked the box stating that "the [above] requirements were read to me and I understand these requirements," and signed the completed form. Above his signature, the form contained an attestation, under the pains and penalties of perjury, that the information provided by the defendant was true and accurate. After the defendant signed the registration form, Detective Gordon gave the defendant a second form, which contained various information about the defendant's ongoing obligations. Among other things, the form stated that "[w]e expect you to comply with the state law (M.G.L. c. 6 Sec. 178C through P) which requires you to notify us of any change of residence address, both full and part-time residences, a minimum of ten (10) days prior to the change." The defendant signed this form as well, under a statement certifying "that I have read or had read to me, the above information and that I fully understand my duties and responsibilities with regard to registering as a sex offender."
Near the end of July, 2006, the defendant met Lori Martinez. Martinez lived in a two-bedroom, second-floor apartment in the Turners Falls section of Montague. [FN3] Montague is adjacent to Greenfield, and Martinez's apartment is approximately two or three miles from the Greenfield courthouse. On the day they met, the defendant asked Martinez if he could spend the night in her apartment, as he had no place to stay. Martinez agreed, and the defendant slept on her sofa. [FN4] The defendant stayed in Martinez's apartment twice more during July, but never more than one night in a row. The defendant did not pay Martinez for his stays or contribute to her household expenses.
On August 3, 2006, Martinez's mother died, and Martinez left her apartment to make funeral arrangements. Martinez locked her apartment upon her departure and did not notice anything different in her apartment when she returned several days later, following her mother's funeral. When Martinez returned to her apartment, the defendant came to visit her from time to time. Asked whether the defendant stayed overnight in her apartment in August, Martinez could not recall. Martinez was allowed to testify, over the defendant's objection, that she was "aware" that the defendant stayed at a neighbor's house on occasion, though the record does not indicate the source of her knowledge, the identity or address of the neighbor (other than that it was not in the same apartment building), the number of occasions the defendant stayed at the neighbor's, or the dates. [FN5]
Staff Sergeant Christopher Williams of the Montague police department began an investigation of the defendant after receiving information that the defendant "was living on Fourth Street in Turners Falls." [FN6] On August 14, 2006, Williams knocked on the door to Martinez's apartment and asked for the defendant. Martinez went to a bedroom door, knocked, and told the defendant that someone was there to see him. Williams heard the bedroom door being unlocked, and then observed the defendant emerge from the bedroom, holding a cup of beer. Williams arrested the defendant. After a jury-waived trial in the District Court, the defendant was convicted on a charge of failing to provide notice of a change of address, as required under G.L. c. 6, § 178H(a ) (iii), and sentenced to one year in the house of correction.
Discussion. "The Legislature adopted G.L. c. 6, §§ 178C-178O, an extensive statutory registration scheme for sex offenders, in order to protect the public from 'the danger of recidivism posed by sex offenders' and to aid law enforcement officials in protecting their communities by providing them with information" (footnote omitted). Commonwealth v. Rosado, 450 Mass. at 659- 660, quoting from St.1999, c. 74, § 1. Convicted sex offenders must register with the Sex Offender Registry Board (board), which then determines the classification level of the offender. G.L. c. 6, §§ 178E, 178K(2). The classification level in turn determines certain details of the offender's registration obligations. Level 3 sex offenders, such as the defendant, must verify their registration information annually in person at the local police department in the city or town in which they live. [FN7] G.L. c. 6, § 178F 1/2 . In addition, the board annually mails a nonforwardable verification form to the last reported address of the offender, and the offender is required within five days after receipt of the verification form to sign it and register in person at the police department in the municipality in which the offender lives. Ibid. Pursuant to G.L. c. 6, § 178E(h ), a sex offender who intends to move to a different city or town within the Commonwealth must register his intended new address with the board by mailing to it a form, at least ten days before establishing the new residence. Included among the information offenders must provide is their home address and any secondary addresses or intended secondary addresses. See G.L. c. 6, § 178E(l ). "Secondary addresses" are defined as "the addresses of all places where a sex offender lives, abides, lodges, or resides for a period of 14 or more days in the aggregate during any calendar year and which is not a sex offender's primary address; or a place where a sex offender routinely lives, abides, lodges, or resides for a period of 4 or more consecutive or nonconsecutive days in any month and which is not a sex offender's permanent address, including any out-of-state address." G.L. c. 6, § 178C. [FN8] Section 178H specifies the punishment to be imposed on a sex offender who knowingly fails to register, fails to verify registration information, fails to provide notice of a change of address, or provides false information. The statute specifies that level two or three sex offenders who reside at a homeless shelter must register every ninety days [FN9] but imposes no comparable requirement on homeless sex offenders not living in a shelter; however, that fact does not nullify the obligation of homeless sex offenders not living in a shelter to register. See G.L. c. 6, § 178F 1/2 ; Commonwealth v. Scipione, 69 Mass.App.Ct. 906, 907 (2007).
As a general matter, "a statute is to be interpreted 'according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.' " Commonwealth v. Welch, 444 Mass. 80, 85 (2005), quoting from Commonwealth v. Galvin, 388 Mass. 326, 328 (1983). Criminal statutes are construed narrowly; "[w]e must resolve in favor of criminal defendants any reasonable doubt as to [a] statute's meaning." Commonwealth v. Pagan, 445 Mass. 161, 167 (2005), quoting from Commonwealth v. Kerr, 409 Mass. 284, 286 (1991).
The statute does not define the term "home address." "[W]here a statute does not define a term, we may interpret it 'in accordance with its generally accepted plain meaning.' " Commonwealth v. Becker, 71 Mass.App.Ct. 81, 87 (2008), petition for cert. filed (U.S. Aug. 14, 2008) (No. 08-5893), quoting from Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). "Home" is defined as "one's principal place of residence." Webster's Third New Intl. Dictionary 1082 (2002). The same text defines "residence" as "the act or fact of ... dwelling in a place for some time" or "the place where one actually lives ... as distinguished from one's ... domicile [or] a place of temporary sojourn." Id. at 1931. See Black's Law Dictionary 750, 546 (8th ed.2004) (defining "home" as "[a] dwelling place" and "dwelling house" as "[t]he house or other structure in which a person lives; a residence or abode").
In construing the term, we also look to other provisions of the same statute for guidance. See Locator Servs. Group, Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837, 859 (2005), quoting from Kargman v. Commissioner of Rev., 389 Mass. 784, 788 (1983) ("statutes should be interpreted as a whole to constitute a consistent and harmonious provision"). In particular, we consider the meaning of the undefined term "home address" with some reference to the definition of "secondary addresses" provided in the statute. As observed above, "secondary addresses" are those in which a sex offender "routinely lives, abides, lodges, or resides for a period of 4 or more consecutive or nonconsecutive days in any month and which is not a sex offender's permanent address." From that definition, it is apparent that, within the statutory scheme, an offender's "home address" denotes some greater degree of permanence, and a greater frequency of residence, than the transitory (albeit "routine") level of occupancy at a location for four or fewer nights in a month. [FN10]
That the term implies some degree of permanence is also indicated by the designation of the space furnished on the registration form for an offender's primary address: the applicable space on the form reads "Permanent Address." The form, generated by the board, of course cannot amend the statute. However, the manner in which the form requests information about the offender's home address illuminates to some extent the interpretation of the statute by the administrative agency charged with its enforcement. See Wilson v. Commissioner of Transitional Assistance, 441 Mass. 846, 851 (2004). [FN11]
We conclude that the term "home address" in the statute refers to an offender's primary place of residence. [FN12] To the extent that the Commonwealth suggests that an offender's "home address" is wherever the offender sleeps on any particular night, even if on a wholly transitory basis, the suggestion is incompatible with the common usage of the term, the greater frequency assigned under the statute to the lesser category of "secondary addresses," and the implication of some degree of permanence set forth in the form promulgated by the board. [FN13] As applied to the facts of the present case, it is plain that the evidence at trial was not sufficient to establish that the defendant had changed his home address (or primary residence) from Greenfield to Turners Falls. [FN14]
Our inquiry does not end with the conclusion that the evidence did not establish that the defendant changed his home address to Turners Falls. As the Commonwealth observes, a violation of the statutory obligation to register can also arise from a defendant's failure to report any secondary addresses, or changes thereto. Here, the term is clearly defined by the statute, and our examination accordingly may compare that definition to the evidence adduced at trial. As summarized above, the evidence established at most that the defendant spent three nonconsecutive nights in July, 2006, at Martinez's apartment in Turners Falls, and (perhaps) an unspecified number of other nights on unspecified dates at the apartment of another (unidentified) person in that town. [FN15] Since the statute defines secondary addresses to encompass four or more nights (consecutive or nonconsecutive) in any month (or fourteen or more nights in any calendar year), the evidence at trial failed to establish a violation of the registration obligation with respect to secondary addresses as well. [FN16]
We recognize that the circumstances of homeless sex offenders pose particular difficulties for the administration of the sex offender registration statute. In the present case, the registration form completed by the defendant at least placed officials in Montague on notice of the defendant's regular presence in that community, by listing a Montague address as the defendant's mailing address. Nonetheless, the inherently transitory nature of homelessness makes it difficult to apply to homeless sex offenders the same considerations of residence applied to offenders who are not homeless. The difficulties of fitting homeless persons into the statutory scheme are not newly discovered. See Commonwealth v. Rosado, supra; Commonwealth v. Scipione, supra. However, it is not our proper role or function to rewrite the statute to address what may appear to be gaps in its scope or practical operation. See Commonwealth v. Becker, 71 Mass.App.Ct. at 94-96 (Cohen, J., concurring).
The evidence was insufficient as matter of law to support the defendant's conviction. The judgment of conviction is accordingly reversed, the finding is set aside, and the case is remanded for entry of a finding of not guilty.
FN1. The record does not describe the offense or offenses that led to the defendant's classification.
FN2. In the space for "Mailing Address," the registration form stated that the mailing address "MUST accompany a permanent or temporary address."
FN3. Martinez testified that she had converted a living room into a third bedroom.
FN4. Martinez testified that she had no romantic relationship with the defendant and understood that he had a girlfriend.
FN5. Martinez's testimony concerning the neighbor occurred during two exchanges with the prosecutor. During the first exchange, after asking whether the defendant asked to stay in Martinez's apartment at any other time after the first night and eliciting that he had done so "a couple other times," the prosecutor asked, "Did you have information that he stayed at anyone else's house?" and (after Martinez's affirmative response) "What information did you have?" Martinez responded to the latter inquiry that "I just know that he stayed at the neighbor's occasionally." Later, during Martinez's testimony
about her return to her apartment after her mother's funeral, the prosecutor asked, "And at this time did you have information or were you aware that he was staying at other people's homes?" Martinez responded, "Just the neighbor's. Other than that I don't know."
FN6. Upon the defendant's objection, Williams's testimony that he had "received information" was admitted for background purposes only, and not for its truth.
FN7. Level 2 offenders are subject to the same requirement.
FN8. The definition of "secondary addresses," and the requirement to include secondary addresses as part of the information furnished by a sex offender upon registration, was added by amendment effective July 1, 2006. See St.2006, c. 139, §§ 5, 9-20. The obligation to notify the board of changes in secondary addresses accordingly was in effect at the time of the events giving rise to the charge against the defendant.
FN9. We note that by St.2006, c. 303, § 3, effective December 20, 2006, the requirement has been changed to every forty-five days.
FN10. As noted above, "secondary addresses" also include addresses at which an offender resides for fourteen or more days during any calendar year.
FN11. In any event, the request on the registration form for "Permanent Address" goes to the question of the defendant's intent, or knowing violation of his registration obligations under the statute. Having been asked to furnish his home address as his "permanent address," a registered sex offender would understand his obligation to notify the board of changes in his home address to attach only to nontransitory changes--at least as related to his "home address." We note in passing that the terminology employed on the form, or in the accompanying notification given to the defendant at the time he registered, does not mirror the terminology of the statute; while the statute refers to "home address," "residence," and "secondary addresses," the registration form requests information concerning the offender's "permanent address," "temporary address," and "mailing address," while the accompanying notification sheet refers to the offender's obligation to notify the board of any "change of residence address."
FN12. That is not, however, to erode the distinction between a residence and a domicile. See Commonwealth v. Becker, 71 Mass.App.Ct. at 92-93.
FN13. Moreover, such a construction would be incapable of sensible administration, in light of an offender's obligation to notify the board at least ten days prior to any change of address. See Commonwealth v. Rosado, 450 Mass. at 662-663.
FN14. Though the defendant did not move for a required finding of not guilty at the close of the Commonwealth's evidence, "Mass.R.Crim.P. 25(a ), 378 Mass. 896 (1979), provides that a judge 'shall enter a finding of not guilty' on his own motion wherever 'the evidence is insufficient as a matter of law.' " Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 729 (1992). "Further, insufficient evidence presents a situation which is 'inherently serious enough to create a substantial risk of a miscarriage of justice.' " Ibid., quoting from Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
FN15. Martinez's testimony that the defendant stayed occasionally at a neighbor's home should not have been admitted over the defendant's objection directed to the lack of foundation, at least not without inquiry into the basis of Martinez's knowledge. We are unable to ascertain from the record whether Martinez's "knowledge" rested on hearsay statements by an unidentified third party, on statements made to her by the defendant himself, or on her own
percipient observations. In any event, the testimony was entirely lacking in any detail concerning the number of occasions on which the defendant stayed at the neighbor's, or when such stays occurred. Significantly, there is no indication in the testimony that any of such occasions occurred in July; the only testimony about the time frame in which the defendant stayed with Martinez's neighbor referred to the period following the funeral of Martinez's mother in early August. See note 5, supra.
FN16. Because the evidence does not establish that the defendant spent four nights in Turners Falls in any month, we need not consider what the term "routinely" adds to the statutory definition of "secondary addresses." ..SOURCE..
SOUTHBURY -- Court officials withdrew the arrest warrant Friday that charged convicted rapist David Pollitt with violating the conditions of his probation.
John Kaloidis, Pollitt's lawyer, said a prosecutor in New London Superior Court withdrew the warrant after receiving letters from Pro-Tech Monitoring, which operates Pollitt's GPS tracking system.
Pollitt, who was released from prison last fall after serving 25 years for multiple sexual assault convictions, was charged with a probation violation Wednesday for allegedly leaving his sister's residence on Fox Run Drive for about 15 minutes.
Pollitt and his attorney claimed he was in the backyard the entire time of the alleged violation and that the tracking system malfunctioned.
The letter from Pro-Tech said after reviewing the case they found the readings "are not accurate" and they cannot say "that he left the area."
Kaloidis blamed political pressure for the rush to make an arrest. Gov. M. Jodi Rell called for Pollitt to be returned to prison Wednesday on the alleged probation violation. Kaloidis accused Rell of leading the "lynch mob" against his client.
"The governor jumped and convicted this man without knowing any of the facts or doing an investigation," Kaloidis said. "She was playing politics."
Janice Rosengren, Pollitt's sister, said she was relieved by the court's decision.
"David said he was in the back yard and he was telling the truth," she said. "I'm
very frustrated right now."
She added that her brother's tracking device has had more than 45 faulty readings since his release from prison last October.
"It will go off in the middle of the night, when he's in bed," she said, adding that officials call soon after the device goes off to check on his whereabouts.
"It's gotten so bad we put the phone next to him at night, so it doesn't wake the rest of the family up," Rosengren said.
The incident sparked an outcry from officials across the state, who are calling for an investigation into the monitoring technology and its effectiveness.
"The problem is we rely on this technology to keep track of these guys, and apparently it's not working," said state Rep. Michael Lawlor, D-East Haven, who serves as chairman of the Judiciary Committee.
Rell and state Attorney General Richard Blumenthal also called for an investigation into the technology.
"There is simply no excuse for this malfunction -- or any failure in so critical a service," Blumenthal said in a statement released Friday. "This company owes the state a full explanation, and we will demand it immediately as a contractual right and ethical imperative."
William Carbone, executive director of Court Support Services for the state's Judicial Branch, which oversees the probation department, said the GPS systems are not perfect but are a useful tool. He added that the tracking device relies on cellular towers.
"There are times during monitoring when a signal strength is low or lost," he said. "In this case our officers followed the proper protocol."
He said the probation officers in the case received both verbal and written confirmation from Pro-Tech that Pollitt was in an area that violated his probation.
"It was on that basis they went forward with the warrant," Carbone said.
He added, however, that on further examination, company officials found the readings were not accurate.
"The company definitely made a mistake," Carbone said. "In this instance they did not ensure that this matter was being reviewed by people whose opinion they could stand behind, and they have an obligation to do that."
He said an internal group has been put together to more closely examine the situation and decide on the department's future use of the company.
Kaloidis said he will review whether Pollitt and his family can file a lawsuit against state officials.
Officials with Pro-Tech could not be reached for comment, nor could the prosecutor in the case, State's Attorney Michael Regan. ..News Source.. by Dirk Perrefort, Staff Writer
With Hurricane Ike moving rapidly toward Texas, multiple counties have issued evacuation orders and shelters across the state are expected to provide refuge to thousands of fleeing Gulf Coast residents. To aid emergency shelters, raise awareness and protect evacuees, the office of the Texas Attorney General has established a 24-hour, toll-free emergency hotline that will allow shelter personnel to inquire whether evacuees are registered sex offenders. Shelter operators can also fax and e-mail the information to the hotline.
"As our fellow Texans are coming here from the Gulf Coast, It's critically important that when they check in to a shelter, when they check in to a church, when they check in to someone's home that they are in a place that is a safe environment," Texas Attorney General Greg Abbott said Thursday at a news conference announcing the program. "These people need to ensure that the person checking in to their home, checking in to the church, checking in to their shelter, is not a registered sex offender. We don't want to see anyone harmed or victimized as a result of the evacuees who may come here," he said. "We saw in the aftermath of Hurricane Katrina that inherently, amongst the approximately 1 million people who will be evacuated from the Gulf Coast there will be a large number of these people who will be registered sex offenders," he said.
"When evacuation shelters contact the Safe Shelter Hotline at (866) 385-0333, law enforcement officials with the Office of the Attorney General will access and share information from the state's registered sex offender database," Abbott explained. "To ensure thorough database searches, callers need to provide evacuees' names, addresses and dates of birth," he added.
With this information, shelter managers can coordinate specialized housing or make other arrangements as appropriate.
-Obviously this means, for sex offenders, make other arrangements, it would be nice to know what they have in mind.
In December of 2007, Texas began using a new statewide citizen-evacuation management system. The tracking system, which was successfully deployed in 2006 and 2007 during state evacuation simulations, is intended to help safely evacuate citizens in the event of any large-scale man-made or natural disaster.
In the event of an emergency evacuation, evacuees are registered on-site and issued a bar-coded RFID wristband. An evacuee's wristband will be scanned with a wireless device as the evacuee boards a state-contracted vehicle. The information is then added to the bus boarding log. Evacuee intake information and location will then be sent wirelessly to The University of Texas Center for Space Research data center.
The buses are equipped with GPS systems to track their location along the evacuation route. Upon reaching the destination, the system will update evacuee profiles and provide real-time information. This will enable state employees to respond to inquiries from the public about the safety of evacuated family members and to reunite families that have been separated during a large-scale disaster.
Rugged hand-held computers are used for the enrollment and tracking of evacuees throughout the process. In addition, bar-code scanners and RFID readers are used in the registration and final destination check-in process for evacuees.
"We wanted to enhance our existing emergency evacuation planning strategy with a new system for tracking and locating evacuees," Jack Colley, chief, Texas Governor's Division of Emergency Management, said in a news release, at the time of the systems launch. "We are confident that the statewide emergency- evacuation tracking system will not only help save lives and effectively ascertain the location of the displaced citizens, but it will also provide the state with the ability to update the families of the evacuees and effectively allocate search-and-rescue resources. The RFID solution will improve the GDEM's command and control management of large-scale disasters within the state by enabling officials to efficiently allocate valuable emergency resources."
In December 2007, Colley told the Houston Chronicle that Texans seeking to escape the next hurricane would be subject to a criminal background check. The idea is to keep sex offenders and other people convicted of felonies off the buses used by the general population, he said.
The names of passengers seeking to board evacuation buses would be checked against sex offender registries and criminal background databases. Colley said officials were only interested in individuals with outstanding warrants, sex offenders or parolees.
Colley confirmed that all of those names will be checked against existing sex offender registries and other criminal background databases. Colley said officials are not interested in evacuees' past criminal convictions, only if they have outstanding warrants, are sex offenders or parolees.
After Hurricane Katrina, nearly 1,700 parolees failed to check in with authorities in Texas, Mississippi and Louisiana, according to the Chronicle. ..Source.. by Corey McKenna
On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. Three days after the opinion was issued, it was discovered that everyone involved in the case had overlooked a 2006 amendment to the Uniform Code of Military Justice ("UCMJ") that made child rape a death penalty offense. This seeming oversight by the majority led the state of Louisiana and Solicitor General to petition the Court for the case to be reheard. On September 8, the Supreme Court took the highly unusual step of asking for more briefing on whether the case should be reheard. This short article contends that for the Court to grant rehearing based upon the rationales embodied in the Louisiana and Solicitor General's briefs would represent a substantial departure from past Court practice and be contrary to the special treatment that military law has historically received. A careful review of the Court's prior opinions shows that the Court has never considered military law in evaluating the objective indicia of the "evolving standards of decency" even when the military had seemingly relevant provisions. This practice by the Court is almost surely due to its recognition that when Congress amends military law, it only represents a national consensus as to military policy and not civilian policy. As a result, the Supreme Court should not rehear the Kennedy case based upon the majority opinion's omission of the 2006 UCMJ amendment. ..Source.. by Corey Rayburn Yung, John Marshall Law School, Chicago
Note: If you want to download the paper, click the "Choose Download Location" link near the top of the page. It is unknown why SSRN changed the appearance to make the download link less visible. If you have any comments or suggestions, feel free to email Corey Rayburn Yung.
September 12, 2008
A reader e-mails me and asks if I had seen the following:
“Substantial Implementation”: Basic Requirements
The Final Guidelines make clear that the requirements of SORNA are a baseline that the jurisdictions must comply with. Jurisdictions that utilize a different foundational approach (classifying offenders based on a risk-assessment instead of the elements of their offenses, for example) will not be deemed to be in ‘substantial compliance’. Nevertheless, jurisdictions will retain some latitude with practical implementation issues, such as in-person verification.
Many thoughts went through my head but the first one was "Conflict" because I had read the Guidelines Implementation section (duplicated at the end of this post) and did not see anything that rigid.
Apparently the SMART Office (I always question that term) issued a document titled "Significant Changes to the SORNA Guidelines" at the same time that they issued the final guidelines and sure enough on the top of page-2 you will find that comment.
While the title of that document implies it supersedes the Final Guidelines, I don't know how it can. The public was allowed input to the Proposed Guidelines before they became the Final Guidelines and I do not know of any posting of this as a Proposed Guideline change. If the system of "Proposed" followed by "Final" is the system then this change superseded that system and doesn't seem to be approved by the United States Attorney General.
Is it legal or smart to do that? Thats for lawyers to decide.
Is this an important issue for state legislatures?
Obviously it is because the SMART Office is saying, do it my way and forget anything you were thinking of, then you will be substantially complying with SORNA.
Oh yes, and if you don't do it my way, I will dock your Byrne Grant 10%. Is that coercion, legalized, and how does that square with the Tenth Amendment? Here we have administrative employees telling state legislatures, "Do it my way or else."
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 10th Amendment U.S. ConstitutionI know Congress granted the USAG the power to interpret the Adam Walsh Act, but, does that power flow to the administrative employees that published this "Significant Changes to the SORNA Guidelines" document which supersedes the Final Guidelines?
Is this an important issue for registered sex offenders?
Well, in essence it says, classify registrants (assign tiers) based on the actual offense committed. Sounds fair, if the offense was just committed, but, therein is the problem, the majority of the registrants committed their offenses years ago (5-10-15-20-30-40 even 50 years ago).
And, to make matters worse, there is nothing registrants can do to lower or eliminate the classification. It is, and will be, what it was at the time of the offense. The public will see the registrant, daily, as though s/he had just committed the offense yesterday and will see that for the life of the registrant.. That is cruel and unusual further punishment, unless you pervert the English language to say it isn't.
I do recognize that, further time as a registrant, and a clean record, MAY allow a few to reduce their classification. So sayeth the Adam Walsh Act but these folks are in the minority. The majority have already demonstrated such conduct and time and there is no relief for them, or those with families. Retroactivity starts the cycle over, and there are no controls in place to prevent this from happening again and again and again, into the future.
Is this an important issue for each state lawmaker?
It seems to me that State lawmakers should be screaming to the high heavens because everything they have done over the years, in state law, to rehabilitate these registrants (plea bargains, punishments and promises) in their respective states, is now being set aside by the federal government through this classification system (tier assignments) rendering rehabilitation meaningless.
The powers of the states, state lawmakers, and state court judges is being usurped by this classification system. Most definitely it is an issue for every state supreme court and is a 10th Amendment issue for state lawmakers?
Is this an important issue for the general public?
This is of paramount importance to the general public unless they don't mind living being lied to which is exactly what the Adam Walsh Act does through this classification system. Knowing where a registrant lives, i.e., sleeps, is of lesser importance than knowing something about the registrant's propensity for reoffense.
Prior to the Adam Walsh Act most states had no system of determining a registrant's propensity for reoffense, but some did have a such a system. Those systems are replaced under AWA with a system that tells you nothing about the registrant in today's light. The AWA system speaks not to propensity for reoffense, but instead, categorizes offenses committed into tiers, with each tier representing the seriousness of the offense WHEN IT WAS COMMITTED.
The general public has been groomed and taught over the years that, tier levels -low to high- means propensity for reoffense, likelihood of committing another offense. The new AWA system masks itself in tiers, so that, the general public thinks -propensity for reoffense- but in reality tells the public nothing about a registrant's propensity for reoffense TODAY.
Cleverly written policy, guidelines, and laws do not make the public safer!
Now, where are the lawyers to carry this through the courts and effect change?
Sec. E. Implementation
Section 124 of SORNA sets a general time frame of three years for implementation, running from the date of enactment of SORNA, i.e., from July 27, 2006. The Attorney General is authorized to provide up to two one-year extensions of this deadline. Failure to comply within the applicable time frame would result in a 10% reduction of federal justice assistance funding under 42 U.S.C. 3750 et seq. (“Byrne Justice Assistance Grant” funding). See SORNA § 125(a). Funding withheld from jurisdictions because of noncompliance would be reallocated to other jurisdictions that are in compliance, or could be reallocated to the noncompliant jurisdiction to be used solely for the purpose of SORNA implementation.
While SORNA sets minimum standards for jurisdictions’ registration and notification programs, it does not require that its standards be implemented by statute. Hence, in assessing compliance with SORNA, the totality of a jurisdiction’s rules governing the operation of its registration and notification program will be considered, including administrative policies and procedures as well as statutes.
The SMART Office will be responsible for determining whether a jurisdiction has substantially implemented the SORNA requirements. The affected jurisdictions are encouraged to submit information to the SMART Office concerning existing and proposed sex offender registration and notification provisions with as much lead time as possible, so the SMART Office can assess the adequacy of existing or proposed measures to implement the SORNA requirements and work with the submitting jurisdictions to overcome any shortfalls or problems. At the latest, submissions establishing compliance with the SORNA requirements should be made to the SMART Office at least three months before the deadline date of July 27, 2009—i.e., by April 27, 2009—so that the matter can be determined before the Byrne Grant funding reduction required by SORNA § 125 for noncompliant jurisdictions takes effect. If it is anticipated that a submitting jurisdiction may need an extension of time as described in SORNA § 124(b), the submission to the SMART Office—which should be made by April 27, 2009, as noted—should include a description of the jurisdiction’s implementation efforts and an explanation why an extension is needed.
SORNA § 125 refers to “substantial” implementation of SORNA. The standard of “substantial implementation” is satisfied with respect to an element of the SORNA requirements if a jurisdiction carries out the requirements of SORNA as interpreted and explained in these Guidelines. Hence, the standard is satisfied if a jurisdiction implements measures that these Guidelines identify as sufficient to implement (or “substantially” implement) the SORNA requirements.
Jurisdictions’ programs cannot be approved as substantially implementing the SORNA requirements if they substitute some basically different approach to sex offender registration and notification that does not incorporate SORNA’s baseline requirements—e.g., a “risk assessment” approach that broadly authorizes the waiver of registration or notification requirements or their reduction below the minima specified in SORNA on the basis of factors that SORNA does not authorize as grounds for waiving or limiting registration or notification. Likewise, the “substantial implementation” standard does not mean that programs can be approved if they dispense wholesale with categorical requirements set forth in SORNA, such as by adopting general standards that do not require registration for offenses included in SORNA’s offense coverage provisions, that set regular reporting periods for changes in registration information that are longer than those specified in SORNA, or that prescribe less frequent appearances for verification or shorter registration periods than SORNA requires.
The substantial implementation standard does, however, contemplate that there is some latitude to approve a jurisdiction’s implementation efforts, even if they do not exactly follow in all respects the specifications of SORNA or these Guidelines. For example, section 116 of SORNA requires periodic in-person appearances by sex offenders to verify their registration information. But in some cases this will be impossible, either temporarily (e.g., in the case of a sex offender hospitalized and unconscious because of an injury at the time of the scheduled appearance) or permanently (e.g., in the case of a sex offender who is in a persistent vegetative state). In other cases, the appearance may not be literally impossible, but there may be reasons to allow some relaxation of the requirement in light of the sex offender’s personal circumstances. For example, a sex offender may unexpectedly need to deal with a family emergency at the time of a scheduled appearance, where failure to make the appearance will mean not verifying the registration information within the exact time frame specified by SORNA § 116. A jurisdiction may wish to authorize rescheduling of the appearance in such cases. Doing so would not necessarily undermine substantially the objectives of the SORNA verification requirements, so long as the jurisdiction’s rules or procedures require that the sex offender notify the official responsible for monitoring the sex offender of the difficulty, and that the appearance promptly be carried out once the interfering circumstance is resolved.
In general, the SMART Office will consider on a case-by-case basis whether jurisdictions’ rules or procedures that do not exactly follow the provisions of SORNA or these Guidelines “substantially” implement SORNA, assessing whether the departure from a SORNA requirement will or will not substantially disserve the objectives of the requirement. If a jurisdiction is relying on the authorization to approve measures that “substantially” implement SORNA as the basis for an element or elements in its system that depart in some respect from the exact requirements of SORNA or these Guidelines, the jurisdiction’s submission to the SMART Office should identify these elements and explain why the departure from the SORNA requirements should not be considered a failure to substantially implement SORNA.
Beyond the general standard of substantial implementation, SORNA § 125(b) includes special provisions for cases in which the highest court of a jurisdiction has held that the jurisdiction’s constitution is in some respect in conflict with the SORNA requirements. If a jurisdiction believes that it faces such a situation, it should inform the SMART Office. The SMART Office will then work with the jurisdiction to see whether the problem can be overcome, as the statute provides. If it is not possible to overcome the problem, then the SMART Office may approve the jurisdiction’s adoption of reasonable alternative measures that are consistent with the purposes of SORNA.
Section 125 of SORNA, as discussed above, provides for a funding reduction for jurisdictions that do not substantially implement SORNA within the applicable time frame. Section 126 of SORNA authorizes positive funding assistance—the Sex Offender Management Assistance (“SOMA”) grant program—to all registration jurisdictions to help offset the costs of SORNA implementation, with enhanced payments authorized for jurisdictions that effect such implementation within one or two years of SORNA’s enactment. Congress has not appropriated funding for the SOMA program at the time of the issuance of these Guidelines. If funding for this program is forthcoming in the future, additional guidance will be provided concerning application for grants under the program.
Does anyone know if the day cares mentioned in this article are required to post a sign outside of their home? If the police cannot tell where they are how do they expect registered sex offenders to know where they are. Maybe, when RSOs register they can be provided with a COMPLETE list of day cares in the entire state, this way they can reside xx feet away from them. I know that sounds crazy, but is there another way? Funny, there is no mention of having any problem before this law, so what is its real purpose?
Enforcing Illinois' new law prohibiting a child sex offender from living within 500 feet of a state licensed in-home day care will require research and manpower, said top metro-east police officials.
The measure has been signed into law by Gov. Rod Blagojevich. It resulted from News-Democrat stories in February reporting that hundreds of child sex offenders lived too close to home day cares and that a 2006 statute designed to protect the day cares was defective.
Law enforcement agencies say that while the law allows them to arrest child sex offenders living within 500 feet, locating home day cares and determining which are operational will take the cooperation of the licensing agency: the Department of Children and Family Services.
"We would like to know where all the day care homes are, for a lot of reasons, not just because of sex offenders," Collinsville Police Chief Scott Williams said. The city recently passed a new ordinance requiring child sex offenders to live at least 1,500 feet from a day care or school.
"If DCFS would let us know, we would put them on our map; it's as simple as that," Williams said. "We can't take them into consideration if we don't know where they are."
One solution might be to required day care operators to register their addresses with police, Williams said.
Jimmie Whitelow, a spokesman for DCFS, said Monday that his agency is "not ready at this time" to answer a variety of questions about how state staffers will help law enforcement implement the new law. DCFS is not responsible for enforcing the statute.
"It's really getting very time-consuming to check on all these people," St. Clair County Sheriff Mearl Justus said. "Our people have been telling me that. We are really spending a lot of time on this, and I know it's important. But it's time consuming."
Justus said that while studies show child sex offenders often assault children they know and that laws restricting where they can live may be ineffective, the law is still important.
"I think it's important because there are very, very few of those cases where people like these offenders are helped through counseling," he said. "The medical profession believes that there is damn near no effective way to help those people. ... The recidivism rate has just gotta be sky high."
O'Fallon Police Chief John Betten said his department also will have to find out just where the in-home day cares are located.
"What we're going to have to do is take a look at where it is that we have conflicts and see how we should follow up from there," he said.
"We're sort of in the enviable position here of having a relatively low number of these sex offenders," he added. "But at the same time, when you start looking at 500-foot circles around day cares, and thousand-foot circles around schools, suddenly we really start to really see our circles beginning to overlap, making it increasingly difficult to enforce but also important to enforce."
Madison County sheriff's Maj. John Lakin said the key to enforcing the new law lies with DCFS and an updated list of day cares.
"Shouldn't we be able to get a list from the state?" Lakin asked. "Then we will have to determine where these day cares are and make sure they are operational. And then check if there are any child sex offenders living nearby." ..News Source.. by GEORGE PAWLACZYK AND BETH HUNDSDORFER
September 11, 2008
Posted with permission.
8-27-2008 Phoenix, AZ:
As the National debt rises, the economy spirals downward, food and gas prices rise to record levels, and the foreclosure rate explodes, the question begs, where shall we cut the fat? The signs are already abundantly clear that the United States is in very big trouble and this is just the beginning. The worst has yet to come. The signs of desperation and the lengths human beings will go to simply to survive the economic crunch are already beginning to rear their ugly head.
*In Lexington, KY a woman is accused of trading sex for $100 gas cards.
*Cities and counties across the nation are battling the theft of manhole covers and storm drain grates being sold for scrap.
*A San Antonio, TX woman and her boyfriend are accused of trying to trade sex with the woman's 5-year-old daughter for an apartment, a used car and child care for the woman's 10-month-old daughter.
*In Chula Vista, CA officials are considering closing a fire station, reducing the police force and closing some libraries one day a week to cut the budget $7.3 million. Chula Vista is not alone as several other states and municipalities across the nation are making and/or considering similar cuts.
*And in California a woman and her two dogs are forced to sleep in her car in a parking lot opened by the city for the homeless due to the inability to afford housing.
Meanwhile, the State of California (and countless others) are dishing out millions of dollars to contract psychologists to keep up with Jessica’s Law*.
This is but one of the hidden astronomical costs of the registering of more than 600,000 (and growing) Americans as sex offenders for crimes ranging from forcible rape to kids playing doctor. No one really knows what the total cost of these laws and their upkeep are but it is certainly well in the billions. After all, the public's “right to know” comes with a price, but is it worth it? There is still no evidence that the registration laws have prevented a single crime.
A 2006 law intended to crack down on sex offenders has proved a bonanza for a small group of private psychologists and psychiatrists, 14 of whom billed California taxpayers last year for a half a million dollars or more each, a Times investigation found.Among the 79 contractors hired by the state to evaluate sex offenders, the top earner was Robert Owen, a Central Coast psychologist who pulled in more than $1.5 million in 2007, according to state records reviewed by The Times. This at a time when California like most other states across America are operating “in the red” with multi-million and even billion dollar deficits.
It’s also no secret that the Feds are operating very deep in the red. Currently, the National deficit is so high that it would take approximately $10,000 dollars for every man woman and child living in the U.S. to pay it off, still the spending continues.
The feds response? Easy, simply print more money. The problem is the more money they print the more the dollar loses it’s value, because there is nothing to back it up. Making it as worthless as the paper it's printed on.
For the first time that I can recall Canadian money is actually worth more than the U.S. dollar! Perhaps that is why our "greenbacks" are being made more “colorful” with pink and purple hues, because in time it will probably be worth about as much as the “monopoly money” it is beginning to mimic.
As the economic climate continues its downward spiral and more Americans feel the pinch, lest we be fooled - this is only the beginning. The signs are already abundant all around us. Many economists are predicting not only a recession but a full blown depression that will make the great depression of the 1940’s look like a cake walk in comparison.
What will be more important to Americans? Keeping a roof over their heads, food on the table, and heat for their homes, or getting some flier in the mail that someone somewhere in a one mile radius of their home (IF they even still have one) committed a sex offense ten, twenty, or even thirty years ago?
Time will tell.
In the meantime, if you can afford gas for your car, be cautious when driving at night lest you accidentally drive over an open manhole.
Excellent Video Commentary to follow.
A law that would have changed the way sex offenders are classified has been tossed out by a federal judge. But some may be applauding this decision. News 3's Anita Roman explains why the law won't hold up.
Nevada will not follow the national Adam Walsh Act, which requires all sex offenders to register their status. Currently, only tier three offenders are forced to register because they are the most likely to re-offend. Tier one and tier two offenders do not.
After hearing about the decision, the local Rape Crisis Center surprisingly supported the judge's ruling.
The Rape Crisis Center in Las Vegas helped 750 rape victims last year. Executive Director Lu Torres has some strong feelings about the laws that protect sexual assault victims. Her feelings toward the Adam Walsh Act, however, were mixed.
"I think that a victim is a victim all of his or her life, so I think an offender should be an offender all of his or her life," says Torress. "If all the tier one and tier two offenders are put to tier three, I really believe that some of the hard-core, high-risk offenders are going to slip through the cracks and be able to re-offend."
A federal judge ruled that changes to Nevada's sex offender law are unconstitutional. The changes would have grouped all of the offenders together so that, no matter how minor the offense, everyone convicted would have to register as a sex offender, dating all the way back to 1956.
Cameron Wolter was convicted 22 years ago. "My offense was with an adult. She said it wasn't consensual after the fact." Camerson says he obeyed all of the registration rules, yet was afraid that the new law would cost him again.
The ACLU agrees, and that's why it brought the lawsuit against the state of Nevada.
"I think the court recognized that the state of Nevada is safer under the old statutory scheme because it does provide an assessment of each individual law," explains Robert Langford with the ACLU. "We need to go back on the table and really think about re-victimization. And also, do we set ourselves up for failure by putting a law that they all become tier three - and parole and probation could not possibly keep up with it?"
Because these changes are not going to be implemented, Nevada could lose about $300,000 in Justice Department grants. It's possible that the federal government will appeal the ruling or try to pass the laws again.
The state Attorney General's office says it's disappointed by the court's ruling and will review its options to protect Nevadans. ..News Source.. by News3.com
Authorities are trying to figure out how a sex offender, required to wear a GPS tracking device, managed to go missing. That man has now been found in Knoxville.
Charles Terrance Hartley has twice been convicted of attempted aggravated sexual battery. He is classified as a violent sex offender on the Tennessee Bureau of Investigation's registry.
His address is listed as homeless.
The 46-year-old was required by a court order to wear a GPS tracking device.
But that device was apparently never activated.
Knoxville Police arrested Hartley around 10:30 Wednesday night. He was transfered to the Anderson County jail around midnight.
Now, authorities are trying to sort out how Hartley's tracking device was not activated. ..News Source.. by WBIR.com
U.S. judge rules law can't be applied retroactively
A federal judge issued a permanent injunction Wednesday that bars the state of Nevada from applying its new sex offender law retroactively.
U.S. District Judge James Mahan said the law, as applied to 12 sex offenders represented by the American Civil Liberties Union of Nevada, is unconstitutional.
"Many of the plaintiffs here were convicted years ago and have paid their debt to society," the judge said.
He said the law, which would change the way Nevada classifies sex offenders, would subject the plaintiffs to additional penalties -- "not because of anything that they have done."
Mahan likened that scenario to the Legislature passing a law that says anyone ever convicted of burglary must now serve five more years in prison, even though they have been law-abiding citizens since their release from prison. That would be neither fair nor constitutional, he said.
The judge stressed that his ruling would have no effect on existing laws that require the registration of pedophiles or laws that restrict their movement or housing.
Deputy Attorney General Binu Palal said he did not know whether his office would appeal the decision.
"We respect the ruling of the court, and we will review our options after we see the order," he said.
Mahan declined to rule on whether the law may be applied to those convicted of sex offenses in the future. That issue is pending in state court.
District Judge David Wall granted a preliminary injunction in June that prevented the law from taking effect as scheduled on July 1. Mahan issued a preliminary injunction a few days after Wall's ruling.
The new law changed how the state categorizes sex offenders. Instead of categorizing them by their risk of re-offending, it categorized them by the crime they committed.
It would have increased the number of Tier 3 sex offenders in Nevada from about 160 to more than 2,500. Tier 3 sex offenders have been convicted of the most serious offenses, including sexual assault and crimes against children.
Tier 3 offenders must register with authorities every 90 days, submit to fingerprinting and, in some cases, wear GPS monitoring devices. Their personal information, including their photos, is posted on the state's sex offender Web sites.
During Wednesday's hearing, Palal disputed Mahan's contention that the law's notification and registration requirements constitute punishment.
"These are not additional criminal penalties," Palal argued.
The Legislature passed the law in 2007 to bring Nevada in line with the federal Adam Walsh Act, signed by President Bush in 2006. The intent was to push all states to categorize sex offenders the same way.
Backers of both the Nevada and federal legislation contend sex offenders will have a harder time evading detection once all states are on board.
Maggie McLetchie, staff attorney for the ACLU of Nevada, said the federal law "is falling apart at its seams." She said most states have not enacted Adam Walsh Act legislation.
Mahan said Nevada's new law violated a constitutional ban on "ex post facto," or retroactive, laws. He also said it violated due process clauses of the Fifth and 14th amendments, as well as the double jeopardy clause of the Fifth Amendment.
"We're thrilled by the ruling," McLetchie said. "We know that it's a brave thing to do to make a decision that affirms the rights of sex offenders. The ACLU strongly believes that the Constitution applies to everyone, including convicted sex offenders."
However, McLetchie said the case is not about the rights of sex offenders. "It's about the limits on the power of government," she said.
One of the plaintiffs in the federal case, a Las Vegas man identified only as "Doe 2," pleaded guilty in 2001 to attempted lewdness with a minor under 14. The felony conviction resulted in five years of probation and lifetime supervision.
In an interview Wednesday, the man claimed innocence.
"I was accused of something that I didn't do, because my 'ex' was trying to take custody of my son," he said.
He said he has had the same construction job for 28 years, has remarried and has three children. Before the new law was passed, he was placed in the Tier 1 category after he was assessed as a low risk for re-offending.
After the new law was passed, his probation officer told him he would be reclassified as a Tier 3 offender. That meant his neighbors would be notified about his conviction.
"I feared for my family's well-being," he said.
He also worried that the new classification would prohibit him from picking up his children at school. Tier 3 offenders may not go within 500 feet of schools or parks. And the man's boss told him he might lose his job.
When McLetchie told Doe 2 about Mahan's ruling Wednesday, he said, he broke down with joy.
"I've been carrying this on my shoulders for quite some time," he said.
Gary Peck, executive director of the ACLU of Nevada, said Mahan's ruling underscores the need for the Legislature "to pay more careful attention" to what the organization's representatives have to say when advocating for constitutionally sound laws.
"It would have been nice had the AG's office been willing to engage in more constructive dialogue with us throughout the course of this litigation," he said.
McLetchie said the 2009 Legislature will get "another crack at the apple."
"In the ACLU's view, the existing laws worked because they really did focus in on public safety and risk to society," she said.
Attorney Robert Langford, who worked on the case with the ACLU, said Mahan "may have just saved the taxpayers of the state of Nevada several million dollars to institute the bizarre supervision scheme anticipated by the new statutes."
"That was a fiscal impact not considered by the Legislature and in my opinion that is what has kept most other states from adopting this wickedly Draconian statutory scheme imposed by the federal government," he said. ..News Source.. by Contact reporter Carri Geer Thevenot at email@example.com or 702-383-0264.
ACLU of NV Wins Permanent Injunction Against Retroactive Enforcement of New Sex Offender Laws
On September 10, 2008, the ACLU of Nevada won a permanent injunction against the retroactive enforcement of A.B. 579 and S.B. 471, Nevada's new sex offender laws. Judge Mahan held that the retroactive application of the laws violated the U.S. Constitution, including the Due Process and Ex Post Facto clauses, making clear that the Constitution applies to all.
The new laws, contained in SB471 and AB579, would have drastically changed how Nevada deals with sex offenders. Regardless of whether their crimes even involved children, sex offenders who committed even misdemeanors with any sexual element since July 1, 1956 would have fallen within the purview of registration and some notification provisions. For example, someone caught masturbating in their truck in 1956 could suddenly be classified as a dangerous sex offender subject to registration and notification. One of the ACLU's clients, a grandfather and solid member of his community, was about to be treated like a dangerous pedophile for committing statutory rape at age 17 back in 1960.
Many, many such rehabilitated, low risk offenders whom the state of Nevada has already determined to be unlikely to re-offend would have retroactively become Tier 3 – "high risk" – offenders based solely on the crime committed. Those offenders would also have been subject to widespread community notification, which in turn would have meant that they and their families faced social ostracism, losing their jobs, and even possible vigilante violence. Further, Parole and Probation was also imposing severe movement and residency restrictions retroactively on some offenders, which meant some people would have had to move and sell their homes.
The ACLU does not in any way oppose tough sex offender laws. In fact, by drawing attention away from offenders who are a known high risk – some of whom would have been reclassified as low risk offenders – SB471 and AB579's changes would have jeopardized public safety. In addition, by retroactively imposing terms on offenders who were known to be low risk and giving people no means to challenge the laws even if they were misapplied, the laws would have violated numerous constitutional provisions. Further, the laws are so confusing that the Attorney General's office itself has repeatedly changed its position on the laws. Nobody seemed to understand what they mean and how they were supposed to be applied.
This case was not about "the rights of sex offenders," but instead about the limits on the power of government to impose sweeping retroactive punishment. The ACLU was very concerned that if the Nevada legislature were allowed to impose laws retroactively in this context, it would pass other laws that take effect retroactively and violate the Constitution.
The ACLU of Nevada cannot provide any individual advice or other assistance regarding the sex offender laws, and the information in this post does not constitute legal advice of any kind. If you have any questions about whether any sex offender registration or other laws apply to you, please contact an attorney.
..Source.. by Phil Hooper
September 10, 2008
MACHIAS/BANGOR (NEWS CENTER) -- The state's online sex offender registry is filled with more than 3,700 names. Each of those offenders is required to register with the local police or sheriff's office when they move to a new community.
Local law enforcement agencies say there is a benefit to registering these offenders, but they say keeping tabs on them is taxing their departments' resources.
Maine's Sex Offender Registration and Notification Act was signed into law in 1999. The state began requiring local departments to register offenders in 2006.
Washington County Sheriff Donnie Smith has only 8 patrolmen to cover more than 3,200 square miles. Smith said the sex offender registration are cutting into the time his staff spends out on the roads. He said it usually takes about 40 hours per week.
"We collect the $25 dollars and send it to the state," Smith explained. "It's become a concern because we lack resources to begin with. This is an important part of what we do, it has to be done it's a large county, but a small community."
There are 100 registered offenders in Washington County. Maine State Police maintain the online registry, but it's up to local departments to keep track of offenders in their communities.
Smith takes that role very seriously.
"The last thing I want as Sheriff is that we failed to check on someone and they've re-offended," Smith said in an interview at his Machias office. "That is the worst case scenario."
The city of Bangor monitors more than 220 registered sex offenders who live, work and go to school in the queen city. Police Chief Ron Gastia says that's more than any municipality in the state.
"We're not getting any support from anybody for this," Gastia said. "This is entirely the responsibility of the city of Bangor, we're mandated by the state. We're responsible for finding the funding and manpower to go out and do this. It's been very much a challenge and very taxing on us."
Both Gastia and Smith say the state mandate should be accompanied by some additional funding.
State Representative Pat Blanchette (D-Bangor), a member of the criminal justice committee, say she doesn't expect that to happen.
"No!" Blanchette exclaimed. "We are not going to be able to fund municipalities for what they are doing because they are going to get some funding through the Adam Walsh Act which is a federal act."
The Adam Walsh Child Protection and Safety Act became law in 2006. It ranks the severity of sex offender crimes. Blanchette says the state still hasn't committed to following that legislation. And that leaves departments to foot the bill on their own. ..News Source.. by WCHS6.com
Three brilliant pieces of public policy work produced by the Justice Policy Institute.
Factsheet: Youth Who Commit Sex Offenses
Factsheet: The Negative Impact of Registries on Youth
Factsheet: What Will It Cost States to Comply with the Sex Offender Registry and Notification Act?
Note: The third Factsheet concludes "Given the enormous fiscal costs of implementing SORNA, coupled with the lack of evidence that registries and notification make communities safer, states should think carefully before committing to comply with SORNA." ..Source.. Justice Policy Institute
The potential that the Internet and new media such as blogs have to engage citizens in legal issues and the democratic process far outweighs negative consequences of the digital age, U.S. Supreme Court Justice Stephen Breyer said Tuesday during a legal conference.
Speaking at a conference organized by a University of Arizona legal institute, Breyer said that while his own grasp of new technology is somewhat fleeting, he realizes its importance in helping people understand their government, and, more specifically, legal decisions handed down by courts.
Technology allows experts, the media and members of the public to have almost instant access to legal decisions and the ensuing commentary, creating greater transparency and engendering increased participation in the political process, Breyer said during the conference titled "New Media and the Courts" held at a hotel just off campus.
"It leads to an investment," he said of the proliferation of the Web-based news and commentary related to legal decisions. "The system doesn't work if people don't participate."
But Breyer also cautioned against the potential of blogs and unfiltered commentary to influence public opinion during remarks that opened the conference organized by the UA's William H. Rehnquist Center on the Constitutional Structures of Government, part of the James E. Rogers College of Law.
While new media allows more voices to present a wide range of opinions, the varied outlets end up serving smaller, more segmented audiences that often dismiss views that conflict with their own.
"There's increased pressure to get groups to hear how right they are," he said. "It becomes harder to get the message through."
Members of the court must work to ensure that people using new technology to learn about legal decisions at least understand the importance of an independent judicial branch.
That way, even if people disagree on specific decisions, they respect the process, Breyer said.
"We have a very big stake in seeing that people get the proper information," he said.
Yet even while praising the ease at which technology allows people to understand legal decisions, the 70-year-old Breyer jokingly admitted that he has trouble keeping up with the latest advancements.
"I can't even do text messaging on the Blackberry," he said. ..News Source.. by Aaron Mackey
Things are getting confusing in Nevada. Yesterday the Nevada (STATE) Supreme court said it did not have jurisdiction in the case about juveniles. Today, the federal court is ruling, and apparently on the changes made to state laws necessitated by the Adam Walsh Act. Earlier the ACLU had sued in FEDERAL court and today's ruling (BELOW) is based on that lawsuit.
More to follow as it becomes available...
A federal judge says state lawmakers went too far when they changed the rules regarding registered sex offenders. And now, a new "get tough" law on sex offenders will not go into effect. The current protection plan and the current problems will continue, for now.
Sylina Sinnot knows more than most: what happens when someone takes advantage of a child. She was molested when she was her daughter Mykayla's age. To help protect her child from the same fate, News 3 showed Sylina how to look up registered sex offenders in her neighborhood by using the Internet.
But if Nevada's Adam Walsh Law had been enforced, she would have seen more. The state law was a response to the federal Adam Walsh Law, which ensures that each state lists every registered sex offender and uses the same method to rank them based upon their crimes.
Currently, thousands of Nevada sex offenders are ranked as tier one - low risk - and therefore are not found on tracking web sites.
To get the Nevada Adam Walsh law ready, Metro sent officers to check on every single sex offender in Clark County. Unfortunately, Metro estimates that approximately 700 sex offenders are not living where they are supposed to, yet their whereabouts cannot be disclosed to the public due to their tier one rating.
Metro is looking for them, but by law, cannot broadcast their pictures or personal information.
And because Nevada is not complying with the federal requirements, the state could lose about $300,000 in Justice Department grants.
The state can appeal to the federal government, make a second attempt to pass a state law that does follow the federal rules, or hope the federal government relaxes the rules. ..News Source.. by KVBC LasVegas