How many registered sex offenders have never committed sex crimes?

4-3-2010 Wisconsin:

James W. Smith is a criminal, but he has never been convicted of a sex crime. Yet type his name on the state’s sex offender registry and you’ll find his picture.

That’s because the statute that lists offenses that earn a spot on the registry includes the crime of false imprisonment of a child, regardless of whether or not there is a sexual motivation.

In 2000, Smith forced a 17-year-old male to drive around with him in the Green Bay area to settle a drug debt. Smith was also 17 at the time. He contested his inclusion on the sex offender registry to the state Supreme Court, which on March 19 ruled against him.

“I think the people of Wisconsin would be surprised to know that the sex offender registry is watered down with these people,” says Smith’s attorney, Shelley Fite, who works for the Office of the State Public Defender.

There is no simple way to tell how many people might be on the sex offender registry for non-sexual crimes. Fite says it would require an analysis of the cases against each of the thousands of offenders on it.

Smith, now 27, might be an unlikely figure to win a lot of sympathy. He’s now serving a prison sentence for a felony drug offense, and since 2000 he’s been convicted of others. But Fite said Smith considers having to register unfair.

“Probably most people can imagine all the implications in terms of restricting places to live, restricting jobs you can get,” she says. “Obviously it can have a profound impact on someone’s personal relationships, relationships with neighbors.”

While rife with incidents of criminally stupid behavior, the criminal complaint against Smith in the false imprisonment case from Brown County makes no mention of anything sexual. The victim had earlier introduced Smith’s co-defendant, Eluster Wilson, also 17 at the time, to a friend who stiffed Wilson and Smith on a $100 cocaine deal. Wilson and Smith decided to force the teen to go with them when they went to collect. The man that owed the money promised to pay up, and according to Fite, Wilson and the victim spent the rest of the evening watching television and then went to a party together.

Ironically, both were originally charged with taking a hostage, which is not included on the sex offender registry. They pleaded to the lesser crime of false imprisonment.

“That’s what caught him in the trap,” says Fite.

Wilson and Smith were convicted and ordered to register as sex offenders. Wilson did. Smith didn’t and was subsequently convicted of failure to register as a sex offender, getting him another year in jail.

In similar cases in Florida, New Mexico and Ohio, courts have sided with the offender, Fite says, and she plans to ask Smith if he wants to take the case to the U.S. Supreme Court.

“There is a federal constitutional claim here,” she says.

Smith didn’t ask for the law to be changed. He just asked the court to review whether the law is constitutional as it was applied to the facts in his case.

In an opinion written by Justice Annette Ziegler, the court ruled that it is. Though it’s not necessarily a sex crime, false imprisonment of minors has been linked to child sexual abuse, the court determined, and it’s difficult to determine whether or not an offender has a sexual motivation in committing the crime. In other words, according to a dissent penned by Justice Ann Walsh Bradley and joined by Chief Justice Shirley Abrahamson, the facts of the case were not even considered. If they were, Bradley wrote, the court would have come to a different conclusion.

“I conclude that there is no rational basis for making Smith register as a sex offender when everybody acknowledges that there was nothing sexual about his offense,” she wrote.

Bradley added that in siding with the state, the majority rejected the notion that the purpose of the sex offender registry is to protect the public from sex offenders.

“When the registry is clogged by offenders who bear no meaningful relationship to its legislative purpose, the court undermines the legislative purpose in creating the registry,” she wrote. “The majority holds its analysis up as ‘a paradigm of judicial restraint.’ To the contrary, I conclude that it has abdicated its responsibility.”

The majority opinion mirrors the position of Rebecca St. John, an assistant attorney general who argued the case in oral arguments last fall.

She said that although no one has alleged that Smith’s motivations were sexual, “it’s impossible to know for sure whether Smith or his co-actors would not have sexually assaulted the minor they falsely imprisoned, whether for personal arousal or just to humiliate and control the minor, if the opportunity had arisen.”

The facts of the case, she said, “do not matter.”

The Legislature, she argued, has the authority to classify offenses within the statues however it sees fit.

But Fite countered that by that reasoning, the Legislature can redefine any law regardless of whether or not it makes sense.

“If the Legislature chose to define homicide as spitting on the sidewalk, it can choose to make that definition,” she said. “But that would be, at least I would argue, irrational.” ..Source.. STEVEN ELBOW | The Capital Times