November 29, 2015

850 convicted sex offenders eligible to petition to get off state's criminal offenders registry

11-29-15 New Hampshire:

Approximately 850 convicted sex offenders and offenders against children are eligible to petition to get off the state's criminal offenders registry, after a little-noticed Supreme Court ruling earlier this year.

And that prospect has lawmakers, including Senate Majority leader Jeb Bradley, pushing for changes to state law.

In February, the Supreme Court ruled in favor of a Manchester man whose lawyers, including the New Hampshire Civil Liberties Union, successfully argued that the state law requiring that he register as a sex offender for life was unconstitutional.

The registry was not created until 1994, seven years after Norman St. Hilaire, whose court case was filed under “John Doe,” pleaded guilty to two counts of aggravated felonious sexual assault against his stepdaughter.

His lawyers argued that lawmakers have amended the registry requirements many times over the years, making them increasingly burdensome. The state Constitution bans retrospective laws that are punitive, they said.

The state Attorney General's Office defended the registry law, arguing that while it might impose additional burdens, it does not increase the criminal punishment for previous convictions. And the state argued that the legislative intent was public protection.

The Supreme Court found that the law did, in fact, have a “punitive effect,” and that the lifetime registration requirement was particularly “excessive.” But the justices did not invalidate the law for individuals previously convicted.

Instead, the court ordered that “John Doe” must be allowed either a court hearing, or administrative hearing with judicial review, to demonstrate that he no longer poses a risk that justifies continued registration. And even if he doesn't prevail at that hearing, he has to be given “some reasonable opportunity” for further hearings while he remains subject to registration.

The court left it up to the Legislature or the Department of Safety, either by law or regulation, to establish the procedures for such hearings. “Unless and until alternative procedures have been established, the superior court shall conduct the hearings required by this opinion,” the order reads.

Trooper 1st Class Rebecca Eder-Linell is the unit commander for the state's Registration of Criminal Offenders, which includes sex offenders and offenders who committed crimes against children. She said there are about 850 offenders on the registry who were convicted in 1993 or earlier.

That's nearly one-third of the approximately 2,800 individuals on the registry.

And that's how many individuals are eligible to petition for removal from the registry as a result of the court order in the “Doe” case.

Request for legislation

Sen. Jeb Bradley, R-Wolfeboro, has submitted a Legislative Service Request for a measure establishing the process by which offenders convicted before 1994 can petition to be removed.

Bradley said he is working with the attorney general and the New Hampshire Coalition against Domestic and Sexual Violence on the legislation. He said the voices of victims “should be heard” as part of any process for offenders to ask to be removed from the registry.

“I think that is a very essential part of making sure that we've done everything that we can to protect victims,” he said.

Bradley said he respects the Supreme Court's decision. “And sometimes the court sends a message, if you will, with their decision for the Legislature to step in, and I think that's the circumstance here.”

“We want to protect the victims — and really protect any other future victims — and that should be first and foremost our policy objective,” he said.

Eder-Linell noted there's a distinction between the offenders list that is made public and the registry requirements.

The public list includes offenders whose victims were under 18, or had more than one conviction, she explained.

Proof needed

Under state law, lower-tier offenders can petition to be removed from the public list if they can show it will help in their rehabilitation.

But the Supreme Court order allows offenders convicted before 1994 to petition to be removed from the registration requirement altogether, she said.

And Eder-Linell said there should be a different standard for how those hearings are conducted. “The purpose behind coming off the public list is to help you rehabilitate and be integrated back into society, whereas not having to register at all, you need to show that you're no longer a risk at all to society,” she said.

Amanda Grady Sexton from the Coalition Against Domestic and Sexual Violence said until lawmakers take action, there are no guidelines for how judges decide whether someone should come off the registry — including whether victims will be notified of pending hearings. “I think that is a grave public safety concern, in addition to being very harmful and counter to what we know of the rights victims have in the criminal justice system,” she said.

Removed from registry

At least two sex offenders already have successfully petitioned to be removed from the registry since the Doe decision.

Cheshire County Attorney D. Chris McLaughlin said a petition was filed in Superior Court there by a man convicted in 1989 of felonious sexual assault against his “too-young girlfriend.” He was 19; she was under 16.

The state did not object, and the man's name was removed from the registry, McLaughlin said.

He agreed there should be “standardized procedures” for courts to consider whether petitions should be granted.

Sullivan County Attorney Marc Hathaway said his office objected to a petition for removal from the registry, filed under a pseudonym. But he said, “A hearing was held, and the order was granted.”

The case went back many years, and the victim could not be located or notified about the hearing, he said.

Asked why his office objected to the petition, Hathaway said, “One, I think there's a public policy that has been articulated by the Legislature that needed to be supported, and two is that it is the defendant's burden to prove that he's not a risk.

“And I am not inclined to assume that the defendant is not a risk.”

Many problems seen

Dr. Scott Hampton, director of Ending the Violence in Dover, has worked with sex offenders for 25 years. He said there are “huge problems” with the current assessment tools used to evaluate the likelihood of recidivism for such offenders.

Hampton likened them to the sort of actuarial assessments used in issuing life or auto insurance policies. “The problem is that victims are not attacked by statistical averages; they're attacked by sex offenders,” he said.

Also, Hampton said, recidivism — getting arrested again for the same crime — is not the same as re-offending.

In his experience, “The ones getting arrested, those are the ones who are ... not clever enough to avoid being detected.”

“We're not looking at the ones that aren't getting re-arrested,” he said.

Best procedure

To best assess whether someone should come off the registry, Hampton said, the state needs to evaluate whether he has truly learned what sexual consent and boundaries mean.

It's critical, Hampton said, to hear from the victim and others who know the offender “on how well they believe this person is able to apply those concepts and how safe they feel around this person.”

For Hampton, it's not about revealing the offender's name in public; it's about giving victims a voice.

“The number one thing that allows sexual violence perpetration to continue is secrecy,” he said. “It's all about secrecy, all about silence, all about people not knowing what's going on.”

There's another issue with the current system, Hampton said: “The problem with a public registry is it creates a false sense of security.”

The truth, he said, is that 80 to 90 percent of sex offenses are committed by someone the victim knows.?He remembers one former client, a middle school music teacher, who volunteered to chaperone a field trip to Washington, D.C., telling parents he'd be a strict watchdog over their kids.

“He had three victims that weekend.” ..Source.. by SHAWNE K. WICKHAM, New Hampshire Sunday News

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