10-9-2010 Tennessee:
Tennesse Supreme Court sex offense ruling opens the door for possible challenges.
First the article:
In Tennessee individuals convicted of sex offenses must register as a sex offender with the State and are subjected to various living and working restrictions pursuant to the registration statute, T.C.A. 40-39-201.
In addition to the registry statute Tennessee also enacted a separate lifetime supervision statute, T.C.A. 39-13-524 with additional life time restrictions for any one convicted of certain classified violent sexual offenses.
On July 7, 2010 the Tennessee Supreme Court issued a ruling in Marcus v. State , 04-06910, which held that the Sex Offender Registration Statute, T.C.A. 40-39-201 may be applied retroactively to individuals convicted of their offense prior to the enactment of the statute because the legislature did not intend for the registration statute to serve as additional punishment but was meant to only "regulate" those previously convicted. The basis for the ruling was that the Ex Post Facto Clause of the Tennessee Constitution only prohibits retroactive application of laws enacted for punishment.
However, the Court also ruled in Marcus that the lifetime supervision statute, T.C.A. 39-13-524 was meant to be "punitive".
This ruling could have important ramifications and could open the door to the challenge of some lifetime supervision sentences through the application of the U.S. Supreme Court decisions in Blakely v. Washington and Apprendi v. New Jersey. T.C.A. 39-13-524 requires that before a person convicted of certain listed sex offenses may be subjected to life time supervision the sex offense must have been committed on or after July 1, 1996. Apprendi and Blakely held that facts other than a prior conviction that increase the penalty for a crime beyond the statutory proscribed maximum must be submitted to a jury.
Maximum sentence was defined as the sentence a judge may impose without any additional findings. Due to the fact that T.C.A. 39-13-524 requires the additional finding of the date of the offense to be on or after July 1, 1996, unless the date of the offense was submitted to the jury and the date of the offense was found by the jury to be on or after July 1, 1996 there is an argument that life time supervision may not be imposed. I would submit that the simple allegation in the indictment of the date of the offense is insufficient to constitute a submission of the date to the jury.
In most cases the date of the offense is not an element of the crime, and in most cases the jury will not be instructed that they must determine the date, nor will their verdict reflect a determination of the date they found the offense to have been committed. In such instances even if there was an allegation of the date in the indictment or even testimony as to dates, unless the jury was instructed to determine a date and the verdict reflects a finding of the date, it seems clear that a sentence of lifetime supervision would be in violation of the rulings in Apprendi and Blakely and would therefore be unlawful. For the remainder of article:
October 9, 2010
Tennesse Supreme Court Rules: Life Time Supervision for Certain Sex Offenses is Punishment
January 26, 2010
O'Malley Vows To Crack Down On Child Sex Offenders
1-26-2010 Maryland:
Governor Martin O'Malley wants to crack down on child sex offenders. New legislation introduced Monday would keep them under surveillance for life. Political reporter Pat Warren explains this is only one of several pieces of legislation being considered this session.
The General Assembly will consider lifetime supervision for child sex offenders and other issues driven by the abduction and murder of 11-year-old Sarah Foxwell, which led to a massive search in Wicomico County. Her body was found Christmas Day.
"If we lose one child to murder, that's one child too many in our state. Whenever these things happen, it inspires all of us to ask one another what we can do, what are the additional things we can do to safeguard the lives of our children?" O'Malley said earlier this month.
Police believe Sarah was abducted and killed by Thomas Leggs, a known child sex offender.
Lawmakers opened this session with Sarah in mind. Governor O'Malley is asking the General Assembly to require lifetime supervision, which may include GPS monitoring. Other bills include increasing the five-year minimum to 20 years and no time off for good behavior.
"If there could be a silver lining to such an awful incident, it's that public opinion and the opinions of the legislators here in Annapolis have been galvanized," said Delegate Steve Schuh, a co-sponsor of the bill.
Any issues regarding Constititutional rights will likely be heard in a public hearing. Public hearings have not been scheduled yet. ..Source.. WJZ13.com
January 20, 2010
Panel: Rethink lifetime supervision for sex offenders
1-20-2010 Iowa:
Lawmakers should revise state law to limit the number of sex offenders subject to lifetime supervision, focusing the state's scarce resources on the highest-risk offenders, a state panel recommended Tuesday.
The move comes after a Des Moines Register probe in July showed Iowa's experiment with lifetime monitoring of sex offenders would cost at the very minimum about $168 million over the next 20 years.
Iowa's Sex Offender Research Council also advocated greater prevention efforts and additional research on how best to monitor offenders.
But state Rep. Clel Baudler, who has long served on the House public safety committee, said he has heard no proposals thus far aimed at recommendations from the panel.
"We have to fix a couple things regarding the treatment of out-of-state sex offenders, but that's all for now as far as I know," said Baudler, R-Greenfield. "Whether they will want changes after seeing this report, I don't know."
Steve Scott of Prevent Child Abuse Iowa said sex-abuse prevention groups like his will be lucky to keep what state funding they have this year.
"If we get through without it getting cut, that will be a major success," he said.
The council was assembled to gather research in the wake of several high-profile sex-abuse tragedies and subsequent changes to state law. It included representation from 16 state agencies, legislators and other groups involved with sex offenders.
One law change that quietly went into effect in 2006 required most sex offenders to serve "special sentences" after completing their original prison or probation sentences. The law was intended to better protect Iowa children from sexual predators, who previously could walk out of prison after serving their time with few restrictions.
But since then, the number of offenders under 10-year and lifetime monitoring has grown from six in 2007 to 113 by September last year. By 2019, the number under 10-year supervision is expected to grow to 962, while those under lifetime probation will grow to 954.
The report also said lawmakers should reconsider the wisdom of subjecting juveniles to registration and residency requirements. The council said more juveniles are being adjudicated for sex offenses, but research shows only a small number commit new crimes as adults.
Before revisions in Iowa's sex offender laws last summer, some 42 of the 5,041 offenders on the registry were juveniles. Prior to that, only 27 of 312 juveniles adjudicated for sex offenses from fiscal year 2006 to 2008 were placed on the registry.
The law change took away juvenile court discretion in placing juveniles 14 or older on the sex-offender registry for certain offenses. More offenders ages 14 and 15 are winding up on the registry as a result. ..Source.. DesMoinesRegister.com
November 9, 2009
NC- Convicted sex offender may see case heard in North Carolina Supreme Court
Here we go again, with the its CIVIL not CRIMINAL claim. I liken that to the state saying, we are killing you not as a punishment, but to protect the public and that is civil; really? These arguments all wordsmith around the real issue "Punishment." Anything done, after the sentence, is not civil but an extension of the punishment (my opinion). Its time to stop the illusions!
11-9-2009 North Carolina:
by LINDELL KAY
The first child sex offender in Onslow County ordered to submit to lifetime satellite-based monitoring has lost his appeal; however, a dissenting decision opens the door for the case to be heard by the N.C. Supreme Court.
Raymond Charles Hagerman, 40, formerly of Tower Drive in Jacksonville and currently housed at Morrison Correction Institute in Huffman, was sentenced to three years in prison in 2008 and lifetime monitoring upon his release.
Hagerman’s attorney, Lexington lawyer Jon W. Myers, argued that the imposition of lifetime monitoring constituted an enhancement of Hagerman’s punishment. Myers also argued that the trial court’s ruling relied on facts not presented in an indictment, conceded by Hagerman or decided by a jury.
The N.C. Appeals Court upheld the decision by Superior Court Judge Thomas H. Lock in a 2-1 decision.
The Appeals Court determined that lifetime monitoring is part of a civil, regulatory scheme established by the General Assembly and not a criminal punishment, according to the ruling written by Judge Ann Marie Calabria and affirmed by Judge Wanda G. Bryant.
Judge Rick Elmore, writing a dissenting opinion, stated, “I would hold that enrolling defendant in lifetime satellite-based monitoring after finding that his offenses were aggravated increases the maximum penalty for his crime ...”
Since the decision is not unanimous, Hagerman has the right to present his case to the N.C. Supreme Court.
Myers said he had just received the decision and had not spoken to Hagerman yet.
“I would like to appeal,” Myers said.
Hagerman was convicted in 2008 for offenses against a 6-year-old girl. He was also accused of showing her and a 7-year-old girl pornographic movies several times in 2005, according to court records.
After the crimes were reported to the Onslow County Sheriff’s Department in 2006, Hagerman left the area. He was eventually taken into custody in Cumberland County.
Hagerman was charged with 20 sex offenses including four counts of first-degree sex offense, four counts of second-degree sex offense, four counts of indecent liberties with a child, four counts of displaying material harmful to a minor and four counts of crimes against nature.
On Oct. 15, 2008, Hagerman pleaded no contest to four counts of indecent liberties with a minor. He was sentenced to three years in prison and 36 months probation. He also had to register as a sex offender and be subject to satellite-based monitoring for life, according to court documents.
North Carolina changed its laws in July 2008 to allow for child sex offenders to be subjected to continuous satellite-based monitoring for life if they commit an aggravated offense, are a repeat offender or a sexually violent predator. An aggravated offense involves vaginal, anal or oral penetration with a victim who is younger than 12 years old.
District Attorney Dewey Hudson said he hopes the legislation will provide added protection for society against sex offenders.
The new monitoring rules were signed into law in July by Gov. Mike Easley as part of the state’s version of Jessica’s Law. The law is named after 9-year-old Jessica Lunsford, a former Gaston County resident. In 2005, Jessica was kidnapped, raped and buried alive by a convicted sex offender in Florida. ..Source..
July 19, 2009
IA- Sex-offender costs to skyrocket
7-19-2009 Iowa:
George Drips was 25 when he drove the 14-year-old girl from a Fayette city park to a secluded wooded area.
He was charged with kidnapping for locking her in his car and forcing her to have sex that day in 2005. The sentence he wound up with for sex abuse was typical: about four years in prison.
What will happen to Drips after he is paroled from the Mount Pleasant prison in January is anything but typical, however.
Drips will be among the first of thousands of sex offenders to be subject to monitoring for the rest of their lives by the Iowa Department of Corrections.
The state law requiring Drips to be subject to "probation for life" was enacted in 2005. The law is intended to better protect Iowa children from sexual predators, who, previously, could walk out of prison after serving their time with few restrictions.
Few Iowans have been aware of the law change. Only this year, as the first of those offenders have begun to trickle out of prison, has the cost of the monitoring become a significant concern.
At a minimum, Iowa's experiment with lifetime monitoring will cost about $168 million over the next 20 years, a Des Moines Register analysis has found.
"This is going to be an extremely expensive piece of legislation," warned Phyllis Blood, a state analyst for the Iowa Division of Criminal and Juvenile Justice Planning.
Blood helped the Register determine some of the potential costs of the monitoring law.
"There will be people who were 15 years old at the time of their offense who will have to be supervised for life," she said.
The $168 million estimate represents the cost in today's dollars of the only two expenses that can measured - electronic monitors and probation officer salaries. The expenses will be needed for the almost 4,000 people expected to be added because of the special post-prison sentences to the 29,000 people already on state probation rolls.
The actual cost - which will also include various types of testing and post-prison counseling - is likely to be far higher, Blood and other state officials said.
Iowa's more intensive monitoring was part of the Legislature's response to public outrage over the highly publicized murder of Jetseta Gage, a Cedar Rapids 10-year-old, in 2005.
But state leaders are getting their first whiff of the fiscal impact this year, as they face a $1 billion gap between state revenues and state expenses projected for fiscal year 2011.
Unlike other states' laws, Iowa's "special sentence" legislation provides no way to ever release someone from a lifetime of probation. That is likely to be a problem for the state, officials in other states say.
"It's an extremely good tool for the people who need it," said Wes Shipley, an adult probation supervisor for sex offenders in Maricopa County, Ariz. "But there are people who get on lifetime probation who don't need it. You have to have a way to get them off."
Lifetime supervision for sex offenders is being tried in about 20 states, but Arizona in the mid-1980s was the first state to implement the monitoring. Today, more than 95 percent of the 1,600 sex offenders on probation in Maricopa County are on lifetime probation.
Already, Iowa corrections officials have told state leaders that absent more money, they will be forced to reduce supervision of other criminals to fulfill the requirement to track sex offenders for a lifetime.
Costs to treat, supervise and monitor sex offenders have already mushroomed - from $3.3 million to $11.5 million - between fiscal years 2005 and 2010, according to Iowa's Legislative Services Agency.
When questioned about the considerable tab yet to come, several state lawmakers said "no price is too high" to spare even one child from sexual abuse.
"You can't put a price on public safety," said Rep. Deborah Berry, D-Waterloo, vice chairwoman of the House Public Safety Committee.
Sen. Keith Kreiman, D-Bloomfield, who chairs the Senate Judiciary Committee, said cost was discussed when the law was changed in 2005.
"But we decided that whatever the cost was, it was worth it," he said.
Mandate forces tough public-safety choices
Treatment experts, state corrections officials and law enforcement officials in other states, where lifetime sentences were begun years ago, say there are reasons lifetime supervision for so many sex offenders may not be a good idea.
"The problem is that in passing one-size-fits-all requirements, you dilute the resources for the people who really need to be watched," said Jill Levenson, a specialist on sex offender treatment and a professor at Lynn University in Boca Raton, Fla.
In Iowa, budget limits and existing requirements for sex offender monitoring have already forced the state to reduce supervision of other convicts on probation.
Sally Kreamer, who heads the corrections department in the Fifth Judicial District, said the growth in sex offenders will force probation officers to give other convicts less supervision.
She said her department already is foregoing electronic GPS monitoring of some criminals who are high risk to accommodate more sex offenders.
Kreamer said those who could be released from supervision in the future due to the requirement include drunken drivers with numerous convictions, batterers at risk to go after ex-wives again and people convicted of second-degree murder and rape.
"It's going to be a huge challenge for us if we don't have the resources," said Ron Mullen, who in May became superintendent of the Mount Pleasant prison, which houses a majority of Iowa's sex offenders who are behind bars.
"I guess the jury's out as to the impact long-term."
Shipley, the Arizona probation official, said his state passed a law allowing judges to review some young offenders' cases annually so those who didn't need lifetime supervision could be released.
"If I got to make the rules, I would err on the side of safety, but I would make sure everyone got an annual review hearing," Shipley said.
"We throw a lot of money at this. But this shouldn't be about the length of time you supervise. It should be the quality of the supervision."
Iowa's new special sentence legislation affects a larger swath of people convicted of sex crimes than even Arizona's law.
As in Arizona, anyone in Iowa convicted of a felony sex crime will receive lifetime probation.
Iowa's law also includes a 10-year special sentence with monitoring for people convicted of some less serious crimes, including indecent exposure, fondling or having sex with a minor.
State spending more on monitoring, prisons
Statistics provided by Blood, the criminal justice planning official, show the costs of the lifetime and 10-year "special sentence" offenders, as well as other requirements of a 2005 sex offender act, will build until at least the year 2028. That's when the number of prisoners flowing from prisons and to probation is expected to stabilize, based on current projections.
The Legislature appropriated $9.9 million in additional money at the time the monitoring requirement passed. But much of that went toward an existing backlog of sex offenders awaiting state services. Corrections department officials say they know of no plan to cover the tab to come.
State analysts and corrections officials say it will also cost millions annually to provide the required prison aftercare, risk assessments, monitoring, DNA testing, polygraph testing and relapse prevention for the additional sex offenders over the next two decades.
Those offenders will be a more serious breed of criminal than most others typically tracked by probation through on-site checks, calls and electronic monitoring.
"This is going to be a very different thing than we've ever had in the past," said Kreamer. "We're going to be getting a lot of people straight out of prison who could be very, very high-risk."
Fred Scaletta, spokesman for the corrections department, said GPS monitoring of some lower-risk offenders will likely ease over time, provided offenders show they are complying with laws, have jobs and a stable place to live.
This year, lawmakers approved spending almost $130.7 million on a new prison and $30.6 million for 320 additional prisoners in community-based residential facilities - a decision necessitated in part by the growing number of sex offenders in prison and those being released.
At the end of the state's 2004 fiscal year, before the new sex offender law requiring special sentences went into effect, 12 percent of Iowa's prison population were sex offenders. By the end of fiscal 2008, 14 percent were sex offenders, according to the Division of Criminal and Juvenile Justice Planning.
Several lawmakers pledged at a government oversight committee meeting in June that they would do "whatever it takes" to assure no sex offender goes unwatched.
Rep. Wayne Ford, D-Des Moines, suggested all of the more than 5,000 people currently on the state sex-offender registry - 86 percent of whom include offenders of minors - should be monitored by global-positioning ankle bracelets.
"The bottom line is we need to come up with the money and protect these kids," he said.
What does the research show?
Researchers caution against a one-size-fits-all approach to treating and managing sex offenders because each case is different, but legislatures have not always listened.
At least 20 states now require lifetime supervision for groups of sex offenders convicted of sex crimes involving minors, according to the National Conference of State Legislatures.
Proponents of lifetime supervision argue that sex offenders often can control their behavior, but do not always voluntarily choose to do so without being watched.
Wider supervision allows probation officers to respond to individual offender risks and needs, according to a report by the National Center for Sex Offender Management in 2000.
However, the center also noted that no research confirms that lifelong, across-the-board mandates are more effective than less expensive, more flexible alternatives.
Research in Iowa and nationally shows sex offenders who successfully complete treatment in prison — which can include counseling and behavior management — are less likely than other criminals to commit new offenses.
But other research shows those under special supervision are much more likely to return to prison after being put on probation. That’s because they are being watched more closely and are easier to catch committing parole violations, not necessarily new sex offenses, state officials say.
In Iowa, 27 of 139 sex offenders who require special supervision already have been sent to prison for violations, according to Mount Pleasant prison Superintendent Ron Mullen.
But studies also suggest that a majority of sex offenders never commit new offenses.
More than 60 percent of sex offenders are never convicted of new crimes — even after 20 years, according to one long-term study of Canadian sex offenders, said Jill Levenson, a sex offender specialist in Boca Raton, Fla.
“Unfortunately, although it is not pleasant to accept, we are probably never going to prevent every random act of terrible violence, and no strategy is perfect,” Levenson said. “There are always going to be some who reoffend that you thought never would.”
Iowa’s criteria for lifetime/10-year monitoring
The special sentence legislation went into effect on July 1, 2005, and applies to all offenders convicted of a sexual offense that occurred on or after that date. The special sentence is imposed only after the offender successfully completes his or her original sentence, whether that be probation or incarceration.
Those convicted of less-serious crimes receive 10-year special sentences, which can be reduced to roughly half with earned time. Offenders convicted of more serious felony crimes are subject to the lifetime supervision. Unlike those with 10-year special sentences, they will never be eligible for “earned time” and no judge can eliminate the mandatory supervision.
Figuring electronic monitoring costs for offenders
Consider the expense of tracking George Drips, the relatively young sex offender convicted in 2005, by GPS. Using today’s costs to the Iowa Department of Corrections, the 29-year-old’s ankle bracelet will cost $7.50 a day— a proposition that could total $82,125 over 30 years.
Probation officials may ultimately determine Drips does not need a bracelet in old age, but many high-risk sex offenders require GPS tracking into their 60s and 70s, corrections officials say.
The Des Moines Register found that by 2028, the annual cost of GPS monitoring for the 3,943 additional people on special sentences would top $117.2 million.
Corrections officials are developing a new risk-based criteria to determine who will be subject to electronic monitoring going forward. Still, they anticipate the state will need many more GPS tracking devices, probation officers and polygraphs to comply with the requirements of the special sentence law.
More than half of the people on electronic monitoring statewide in 2007 were sex offenders: 363 of 633, according to a 2008 state report. Others included drug offenders, drunken drivers and those accused of violent crimes like kidnapping, murder or assault.
Needed: More probation officers, more money
Sex offenders will require the state’s most experienced probation officers and be subject to taxpayer-financed requirements, such as post-release counseling, DNA testing and polygraphs.
Corrections officials have predicted the number of probation officers will need to grow by at least 77 by the year 2018, up from about 47 this year.
Even if the number of probation officers was kept to 80, the amount in probation salaries alone for the special sentence population would be $50.5 million in 20 years, according to Phyllis Blood, a state crime analyst. That amount is in today’s dollars and is an underestimate of the real cost, she said.
How much time do they actually spend in prison?
Iowa sex offenders made up about 12 percent of Iowa’s prison population in 2005, but the number has grown to 14 percent since the Legislature required lifetime monitoring and other tougher changes to the state’s sex offender laws.
All sex offenders are required to receive treatment while in prison, which must be completed successfully to earn time off their sentences. Before release, they typically are transferred to residential facilities where they are granted work release and finish treatment.
Receiving the maximum amount of earned time, sex offenders are likely to serve the following:
Aggravated misdemeanor: 10.9 months
Class D felony: 27.3 months.
Class C felony: 54.6 months.
Class B felony: 17.6 to 21.3 years
Class A felony: Life in prison ..Source.. by LEE ROOD
February 23, 2008
CO- Probation over jail for sex offenders
2-23-2008 Colorado:
It was a sentence that many felt was too light. A Canon City man, who sexually assaulted 2 little girls, was given just 6 months in jail. Instead of a lengthy jail term, Darren Brady was sentenced to a lifetime of probation.
After Brady's sentencing yesterday, the question became, Is probation, over jail, an easy out for sexual predators? Can they really be trusted in the community? We got some answers today.
It seemed like a slap on the wrist. Darren Brady plead guilty to molesting two little girls. He was only sentenced to 6 months in jail. When he's free, he'll spend the rest of his life under supervised probation. We spoke with Richard Allen, one of the victim's grandfather, after the sentencing. He said, "It's been proven time, and time, again that treatment doesn't do sex offenders any good."
Scot Smith disagrees. He oversees the probation officers in El Paso county, who watch over these sexual predators when they're released from jail. He says, "Yes, they can learn techniques to avoid re-offending, and they can make these choices not to re-offend again."
Smith says the treatment for sex offenders sentenced to the intensive lifetime probation is not easyt. Terms of probation include routine polygraph, therapy several times a week, and computer monitoring. He says, "Obviously, they are not incarcerated, and there is a difference of being in the community, under supervision. But, again, the supervision is very intense, very personal."
This form of treatment over jail is the trend in Colorado. Last year, 195 sex offenders were given lifetime probation. Compare that to just 1 person handed that sentence when it started in 1998. Smith says, "People who are sent to this type of probation, are sent on a case, by case basis. Can they be safely monitored? Can we manage their risk from day one, and equip them with the tools to never re-offend?"
The Sex Offender Management Board that created this treatment program told us that, since 2000, only 1 person under the lifetime probation sentence has committed another sex offense...more.. by KOAA.com
