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
April 3, 2010
How many registered sex offenders have never committed sex crimes?
March 26, 2009
The False Imprisonment of a Minor Problem
If it is held that, under the circumstances of this case, a person can be added to the sex offender registry if a child is in the vicinity of the underlying crime, then there is no crime -where a child may be present- that cannot be added to the registry. Think about it...even a ticket for a seatbelt violation (if a child is in the car).
3-26-2009 Wisconsin:
From Sex Crimes Blog
There have been several news stories recently outlining the problem with state registries in that imprisonment of a minor is an offense justifying listing. That means an offender who robs a store with a minor present or someone who termporarily restricts movement of a minor during a fight might be a "sex offender" for registry purposes. Jessica Slavin, at the Marquette Faculty Blog, writes about a challenge in such a case in Wisconsin:
One of the criminal cases, State v. Smith, 2008AP1011, asks the court to determine whether the sex offender registration statute, Wisconsin Statute section 301.45, is unconstitutional in its application to a defendant whose crime, false imprisonment of a minor, concededly had no sexual component whatsoever. The Defendant Smith was convicted of falsely imprisoning a minor in connection with a drug crime. That conviction triggered application of the sex offender registration requirements in section 301.45. Smith did not register, and was charged with failing to register as required. He argues that the sex offender registration requirement violates his due process and equal protection rights because his crime had no sexual component.
It seems difficult for either challenge to succeed under federal law, but perhaps the Wisconsin constitution will offer relief.
March 14, 2009
GA- Georgia law puts non-offenders on sex registry
3-14-2009 Georgia:
Child molesters, rapists and other sex criminals often remain dangerous even after they’ve served their time, and Georgia’s sex offender registry is designed to keep a leash on them.
The law, one of the nation’s toughest, tracks most offenders until they die, dictating where they can live and work.
But the law has a peculiar twist: There are a growing number of registered sex offenders in Georgia who did not commit a sex offense. The law applies to anyone convicted of kidnapping or false imprisonment of a minor, regardless if a sexual act was committed.
At 17, Darnelle Harvey took part in the robbery of a Dairy Queen in Chamblee. Brandishing a gun, he ordered a 16-year-old to lie down as the holdup progressed. This got him a false imprisonment conviction, and because the victim was under 18, Harvey became a sex offender.
Now 36, he acknowledges his mistakes.
“I’m no saint, I know that,” Harvey said recently. “What I did was bad, stupid, and I spent years in prison regretting it every day. But I’m not a sex offender.”
Some legislators agree.
The law was drawn so broadly that it has triggered another: the law of unintended consequences, Sen. Seth Harp (R-Midland) said.
“We’re trying to clarify it,” he said. “We need to concentrate solely on those who really are sex offenders so we know where they are to keep them away from children.”
Harp’s legislation amends a number of provisions, including requiring those convicted of kidnapping or falsely imprisoning a minor to be on the registry only when their crimes involve a sex offense. The bill recently passed the Senate by a 52-2 vote. It is now before the House.
Rep. David Ralston (R-Blue Ridge) said lawmakers initially passed the provision with the belief that anyone convicted of committing crimes of force and violence against minors should also receive the same fate as sex offenders. But Ralston said last week he was open to revisiting the issue.
The sex offender law has encountered legal setbacks. The Georgia Supreme Court has struck down certain provisions, including mandatory life sentences for offenders who failed to register a second time.
The kidnapping and false imprisonment provisions also face a court challenge.
A Fulton County judge recently heard arguments on behalf of a man convicted of false imprisonment during a May 2000 drug robbery in Gwinnett County.
“Doesn’t it sound screwy what’s going on here?” Superior Court Judge Jerry Baxter asked, when told Jake Rainer is a registered sex offender who committed no sex crime.
For Harvey, the distinction is not a small one.
When convicts serve their sentences, their debts are paid, and they are generally free to live and work wherever they can find shelter and employment.
But the sex offender registry is a kind of life sentence. Those on it cannot live or work within 1,000 feet of places children congregate, such as parks, schools, rec centers and swimming pools.
Harvey must now report every three days to the Fulton County Sheriff’s Office and provide a location where he stays, a requirement of those who are homeless, as he is.
His journey to the sex offender registry began with the 1990 robbery of the DQ.
Before the restaurant closed that night, Harvey and his co-defendant, Eddie Montgomery, waited nearby in the woods, watching.
Harvey told Montgomery he didn’t want to go through with it. But Montgomery pointed his gun at Harvey and said he had no choice, Montgomery said during his guilty plea. Harvey complied.
A 16-year-old boy, the first to emerge from the DQ, was ordered to lie down — the basis of the false imprisonment charge. When the others walked out, Harvey and Montgomery robbed them at gunpoint and fled with the cash. They were arrested two weeks later.
Harvey pleaded guilty and spent seven years in prison.
Harvey learned welding after getting out of prison, but he could not accept a job as a welder last year because he had to leave the state. He recently got a job doing repair work at Big Boot Ranch in Ellenwood, but he had to leave that because the ranch hosts parties for children.
“He wanted to work, wanted to move his life along,” ranch owner John Sturdivant said.
“If you can’t work, you can’t take care of yourself. When you can’t do that, it might lead to robbing or stealing. What’s left?”
About 90 people are on the sex offender registry for false imprisonment convictions and another 90 are on it for kidnapping.
Prison records indicate at least 33 of those offenders committed a sex crime when they kidnapped or falsely imprisoned their victims.
Donnie Lee Boone is not one of them.
In 1994, Boone and two others held up an Augusta restaurant. Because the men moved four employees, one a 17-year-old, from one part of the restaurant to another, they were convicted of kidnapping.
After serving nearly 12 years in prison, Boone was granted parole in 2006. But the parole board refused to release him because he could not meet the sex-offender residency requirements.
The board said he could not move in with his mother because her home was within 1,000 feet of a park, a church and a rec center. In 2008, Mica Doctoroff, an investigator for the Southern Center for Human Rights, determined that the church and park were 2,000 feet from the woman’s home. The rec center didn’t exist.
In April 2008, Boone was released — two years after being granted parole — and moved in with his mother.
Boone, 40, is now taking online computer college classes to earn an associate’s degree in business.
“I had to serve additional time for being a sex offender when I didn’t commit a sex crime,” he said. “It’s still unbelievable to us.” ..News Source.. by BILL RANKIN, The Atlanta Journal-Constitution
December 16, 2008
WI- Wis. court upholds sex offender registration
12-16-2008 Wisconsin:
WAUSAU, Wis. - A state appeals court says a Brown County man was properly placed on Wisconsin's sex offender registry even though his criminal conviction lacked a sexual element.
The Third District Court of Appeals on Tuesday rejected James W. Smith's contention that placing him on the registry violated his constitutional rights.
The 26-year-old Smith was convicted of being party to false imprisonment of a child in 2001 in a dispute over a drug debt and ordered to register as a sex offender.
Court records say that four years later, the state charged Smith with failing to provide an annual update to the registry. He was convicted and sentenced to a year in prison.
The appeals court says the sex offender law protects children from both sex offenses and violence. ..News Source.. by Chicago Tribune
September 29, 2007
Be They Fish or Not Fish: The Fishy Registration of Nonsexual Offenders
2007
Abstract:
The article deals with a bizarre but common phenomenon: the registration of nonsexual criminals in sex offender registries. The practice has been challenged in a number of cases, but there is much disagreement among courts - often within the same jurisdiction - on its constitutionality, and on the analysis it entails. The issue has recently picked-up steam - reaching some state Supreme Courts (Florida's and Illinois'), and appearing in the popular news media. The article offers a comprehensive analysis of the Substantive Due Process issues involved, showing why registering nonsexual criminal in sex offender registries is a violation of the federal Constitution (both on the part of the States and on the part of the federal government). It also shows that the registration of nonsexual criminals in sex offender registries is a first-rate case-study for negligent policy-making (supported by faulty data), which frequently received a stamp of approval from an often-poor judicial reasoning, itself supported by an impoverished constitutional jurisprudence. ..more.. by OFER RABAN, University of Detroit Mercy School of Law; University of Utah - S.J. Quinney College of Law zipzipzip
