OK- Sex-offender law under scrutiny

8-15-2009 Oklahoma:

A felon's third child-molestation charge prompts concerns.

The case of a convicted sex offender who was charged Friday with the kidnapping and lewd molestation of a 23-month-old girl has raised concerns among law enforcement and legislators about the state's sex-offender law and sentencings.

Marcus Berry, 56, has two previous child-molestation convictions, and he was arrested twice on violations of the sex-offender law. The first time he was charged with not registering as a sex offender, a jury acquitted him based on his claim that he couldn't register because he was homeless.

The second time — after again claiming to be homeless — he pleaded guilty and received a two-year probation.

Berry was arrested Wednesday night after two patrol officers found him and the girl — both partially dressed — in a pickup that was parked in a field, police said. The girl had been snatched from her family's front yard after she wandered out of a gate on the side of the house.

At the time, the Department of Corrections listed Berry as a registered sex offender with a Sand Springs address.

District Attorney Tim Harris said that based on Berry's prior felony convictions, he faces 20 years to life in prison if he is convicted of the kidnapping charge and up to life, with or without parole, on the lewd-molestation-of-a-minor charge.

But police, prosecutors and legislators have been debating whether the state's sex-offender law failed in this case and whether more could have been done to prevent Berry's arrest on a third child-molestation offense.

The "homeless defense" is an issue police and prosecutors have struggled with previously.

In January 2008, a Tulsa World analysis showed that more than 20 sex offenders were registered as homeless in Tulsa. But police said the majority of those offenders were not homeless at all.

Reporting that they are is just one way the offenders have learned to cope with the state law that precludes them from living in most of Tulsa, police said.

A state law that went into effect in 2006 made about 90 percent of the city off limits to sex offenders by prohibiting them from living within 2,000 feet of playgrounds, parks or child-care facilities.

Previously, 550 sex offenders were registered in Tulsa, but the list is now down to about 300. Many offenders have moved to rural areas, but others are just refusing to register, police say.

"You have to wonder, where did the other 200 go?" Tulsa Police Sgt. John Adams said.

He suggested that residence restrictions be loosened, perhaps decreasing the restricted boundary around schools from 2,000 to 1,000 feet and removing the prohibition against offenders living near parks.

Such changes would make it easier for sex offenders to find a place to live legally and would therefore make them more likely to register their addresses, police say.

Adams also suggested that mandatory sentences be set for violations of the sex-offender laws.

"The point is that we know where they are," he said. "So we make it a little easier for them to find a place to live and then, if they fail to register, they are gone on a mandatory five-year sentence."

The Oklahoma Court of Criminal Appeals ruled in a previous Tulsa County failure-to-register case that homelessness was a legitimate defense.

Assistant District Attorney John Lackey, who prosecuted that case, argued that the Sex Offenders Registration Act imposes strict liability on offenders to register and that failure to do so is criminal regardless of the intent. Lackey asked the appeals court to provide jury instructions for failure-to-register cases and to make the statute's language more specific.

While preparing the case, Lackey did research on the homeless-defense issue and found that other states already have measures to deal with the problem. Some states require an offender to check in with the appropriate agency daily or every few days, he said.

Oklahoma's "sex-offender registration statute makes it almost impossible for the sex offenders to find a home, and then we don't address what happens when they don't have a home," Lackey said.

In reaction to Berry's arrest, Rep. Rex Duncan, R-Sand Springs, announced Friday that he plans to file legislation that would address loopholes in the state sex-offender laws and strengthen sentencing.

Duncan said the legislation would eliminate the homeless defense as an excuse for not registering and would allow those convicted of failing to register to receive 20-year prison sentences.

Under current law, a child molester can face a sentence of 25 years to life with parole possible for a first offense. Duncan's proposal would increase the maximum penalty for first offenders to life without parole. It also would allow the death penalty to be considered for those convicted of second offenses.

However, a U.S. Supreme Court ruling in a Louisiana case last summer effectively tossed out an Oklahoma law that allowed the death penalty for repeat child molesters. In the Louisiana case, the high court limited capital punishment to those who commit murder.

Berry's previous child-molestation convictions were in 1986 and 1993. In the most recent case, Berry was sentenced to 30 years in prison. But he was convicted before 2000, when a law took effect requiring those convicted of offenses such as lewd molestation to serve at least 85 percent of their sentences.

Because of the earned credit system, he was released from prison on Oct. 3, 2006, not quite 13 years after his 30-year sentence was imposed. ..Source.. by NICOLE MARSHALL World Staff Writer