Sex Crimes

NY Times Series on Civil Commitment and Sex Offenders

2010-08-30T20:41:59-04:00

Although several years old, I recently stumbled across this multimedia New York Times series discussing sex offenders and civil commitment. The articles are available in three parts: part 1 | part 2 | part 3. The multimedia feature can be viewed here. Though popular with legislators, the article finds doubts about the effectiveness of civil commitment.

DOJ Issues Report on Prison Rape

2010-08-30T20:28:25-04:00

As required by the Prison Rape Elimination Act of 2003, the Department of Justice released an interesting report entitled: Sexual Victimization in Prisons and Jails Reported by Inmates, 2008-2009. The Act requires DOJ's Bureau of Justice Statistics to: (1) conduct "a comprehensive statistical review and analysis of the incidents and effects of prison rape for each calendar year," and (2) "provide a list of prisons and jails according to the prevalence of sexual victimization." From TalkLeft:

90,000 inmates, more than 4 percent of prison inmates and over 3 percent of jail inmates, reported being sexually victimized in custody.

Female inmates were more than twice as likely as male inmates to report experiencing sexual victimization by another inmate.

Among inmates who reported victimization by another inmate, 13 percent of male prison inmates and 19 percent of male jail inmates said they were victimized within the first 24 hours after being admitted to a corrections facility. In contrast, the figure for women was 4 percent for prison and jail.

Inmates with a sexual orientation other than heterosexual reported significantly higher rates of inmate-on-inmate sexual victimization and staff sexual misconduct.

Carr v. United States - Initial Thoughts

2010-06-01T14:09:31-04:00

In a bit of a surprise, Carr won on a 6-3 vote. Although, as I thought, the likely way Carr would be victorious would be on the statutory interpretation issue and not the Ex Post Facto Clause claim. The outcome will have an effect on very few prosecutions and Congress can "correct" the outcome whenever it wants. So, it isn't much of a decision against SORNA or the AWA in any meaningful way.

I have to say that I was more than a little disappointed that Justice Alito, who had to address the Ex Post Facto issue in his dissent, disposed of it in a single footnote paragraph which lacked any substance. Here was his argument on the issue:

Petitioner makes the additional argument that interpreting §2250(a)(2)(B) to reach pre-enactment travel renders the statute anunlawful ex post facto law. See U. S. Const., Art. I, §9, cl. 3. Petitioner remained unregistered in Indiana five months after the promulgation of the regulation making SORNA applicable to persons with pre-SORNA sex-offense convictions. For essentially the reasons explained by the Court of Appeals, see United States v. Dixon, 551 F. 3d, at 585– 587, I would reject petitioner’s ex post facto argument.

Even though it isn't a majority opinion, that treatment is just sad. Judge Posner's lower court opinion of the Ex Post Facto Clause claim was based upon lower court cases that were inapplicable (because they applied in instances where Congress specifically declared that the crime was a "continuining offense"). To just adopt such a poorly developed argument without engaging any of the briefing on the issue seems weak.

Of course, everyone has noted the odd alignment of the Justices as Thomas, Alito, and Ginsburg formed the dissenting group. I think if more were at stake in the case, such a grouping would have been unlikely.

There is plenty of coverage around the legal blogosphere and I should have more later.

Op-Ed: "When the Feds Decide Who's Sexually Dangerous"

2010-05-23T11:02:39-04:00

Continuing our coverage of Comstock, I just finished reading this effective editorial at The Atlantic raising some concerns over the potential reach of the decision. The opinion piece also compares the voting blocs of Comstock (which dealt with federal civil commitment) and an earlier Supreme Court decision, Kansas v. Hendricks (which dealt with state civil commitment). In Comstock, Justice Breyer wrote the majority opinion and Justice Thomas wrote the dissent, whereas in Hendricks, Justice Thomas wrote the majority opinion (upholding the Kansas law) and Justice Breyer wrote the dissent. From the editorial:

The wide applicability of this statute and lack of procedural safeguards distinguish it from state civil commitment laws previously upheld by the Supreme Court (this argument is presented in convincing detail in the NACDL amicus brief). In 1997, in Kansas v. Hendricks, the court upheld a controversial Kansas statute providing for the civil commitment of people deemed likely to commit "predatory acts of sexual violence" due to "mental abnormalities" or "personality disorders." But at least the Kansas law applied only to people previously convicted or charged with specified sex offenses and provided for jury trials in which alleged future dangerousness would have to be proved beyond a reasonable doubt.

Hendricks upheld the Kansas civil commitment scheme by a five-to-four vote, in a conventional liberal-conservative split. Justice Thomas wrote the majority opinion upholding the law, joined by Justices Rehnquist, Scalia, O'Connor, and Kennedy; Justice Breyer wrote the dissent, joined by Justices Ginsberg, Souter, and Stevens. In Comstock, however, the majority and dissent switched sides. Justice Breyer wrote for the majority, upholding a federal civil commitment statute that's less protective of individual rights than the state statute he would have struck down (he was joined by Ginsberg, Stevens, and Sotomayor; Kennedy, Roberts, and Alito concurred). Justice Thomas wrote the dissent, joined by Scalia.

What accounts for this switch? In Comstock, the court didn't address due process challenges to the federal civil commitment scheme; it was reviewing a decision by the Fourth Circuit Court of Appeals that struck down the federal statute as an unconstitutional exercise of congressional power, without reaching questions about due process (or other individual rights). So, putting individual rights issues aside, Justice Breyer adopted the expansive view of federal authority advocated by Solicitor General Kagan. (At the Volokh Conspiracy, Orin Kerr described Kagan's position as "shockingly broad: She argued that the Constitution gives the federal government the general power 'to run a responsible criminal justice system,' and that anything Congress plausibly thought a part of running a 'responsible criminal justice system' was within the scope of federal power.") Justices Thomas and Scalia, in keeping with a more literal, or originalist, reading of Article I congressional authority, and a view of the federal government as one of explicitly enumerated powers, would have denied the federal government civil commitment powers similar to those they afforded the states.

So there is some logic to these oddly contrasting positions represented by Justices Breyer and Thomas in their reviews of state and federal civil commitment statutes, respectively. Technical, constitutional arguments aside, however, I do wonder how Justices Thomas and Scalia would explain, in lay terms, why they oppose federal power to detain people deemed "sexually dangerous" in civil commitment proceedings but support federal power to criminalize mere possession or even false advertising of child porn, imposing long sentences on people who have never committed or even been suspected of committing any actual sexual offenses.

In any case, the court may get another chance to review the federal civil commitment provisions of the Adam Walsh Act. The Comstock case will return to the Fourth Circuit, where, as Justice Breyer observed, Graydon Earl Comstock (et al) may raise due process, equal protection claims or any other individual rights claims on which the court has not yet ruled. But even if the case eventually wends its way back to the Supreme Court, and even if Justice Breyer switches sides again and somehow takes four of his colleagues with him, much damage has been done. Federal criminal jurisdiction has expanded dramatically in the last few decades, with the blessings of conservatives and liberals alike. Now, thanks to the ruling in U.S. v Comstock, that power seems practically infinite: federal authorities can imprison people indefinitely on suspicions of future dangerousness. It's not just suspected sex offenders or terrorists who are at risk.

SCOTUSblog Recap of Comstock

2010-05-21T11:53:21-04:00

As usual, SCOTUSblog has an excellent recap of the Comstock opinions written by Stanford Law Student Eric Hansford. From the post:

The respondents in this case are federal prisoners who were about to be released when the government instituted civil commitment proceedings against them under Section 4248. When the respondents challenged (among other things) the constitutionality of the government’s actions, the district court held (again, among other things) that the statute exceeded Congress’s powers under Article I of the Constitution, and the Fourth Circuit affirmed on this ground.

The Supreme Court granted certiorari, and yesterday it reversed. In the majority’s view, “five considerations, taken together,” compel the conclusion that Article I’s Necessary and Proper Clause grants Congress authority sufficient to enact Section 4248.

Justice Kennedy concurred in the judgment. In a separate opinion, he emphasized that the Necessary and Proper Clause has limits, and he sought to distance himself from what he regarded as some of the Court’s broadest language. In particular, he underscored that the “rational relationship” test at issue here is much more demanding than the “rational basis” test used in due process cases.

Justice Alito also concurred in the judgment. In his view, there is a “substantial link” between Section 4248 and Congress’s enumerated powers, thereby rendering the statute a necessary and proper means of implementing federal criminal law statutes authorized by Congress’s other enumerated powers.

Questions Left Unanswered By Comstock

2010-05-19T12:46:11-04:00

Although the U.S. Supreme Court definitively ruled that the federal government has the power under the Necessary and Proper Clause to keep "sexually dangerous persons" in custody after the expiration of their sentence, both the majority and dissenting opinions noted some issues left unresolved by the decision. From Justice Breyer's opinion:

In resolving [the question presented], we assume, but we do not decide, that other provisions of the Constitution -- such as the Due Process Clause -- do not prohibit civil commitment in these circumstances. Cf. Hendricks, 521 U.S. 346; Addington v. Texas, 441 U.S. 418 (1979). In other words, we assume for argument's sake that the Federal Constitution would permit a State to enact this statute, and we ask solely whether the Federal Government, exercising its enumerated powers, may enact such a statute as well. On that assumption, we conclude that the Constitution grants Congress legislative power sufficient to enact § 4248.

This seems to me an odd way to frame the argument, since it is established that states can act in ways in which the federal government cannot. Justice Thomas' dissenting opinion also mentions the many questions left unanswered by the Comstock decision, although he choose to articulate the questions in laundry list fashion. From Justice Thomas' opinion:

The Court’s newly minted test cannot be reconciled with the [Necessary and Proper] Clause’s plain text or with two centuries of our precedents interpreting it. It also raises more questions than it answers. Must each of the five considerations exist before the Court sustains future federal legislation as proper exercises of Congress’ Necessary and Proper Clause authority? What if the facts of a given case support a finding of only four considerations? Or three? And if three or four will suffice, which three or four are imperative? At a minimum, this shift from the two-step McCulloch framework to this five-consideration approach warrants an explanation as to why McCulloch is no longer good enough and which of the five considerations will bear the most weight in future cases, assuming some number less than five suffices. (Or, if not, why all five are required.) The Court provides no answers to these questions.

Perhaps this is an inevitable consequence of a major decision. In the oral arguments for District of Columbia v. Heller for example, (which also left many questions unanswered) Chief Justice Roberts appeared in favor of having these questions answered gradually over time. From the oral argument transcript:

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. . . I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up. But I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

Comstock Roundup

2010-05-17T19:07:03-04:00

News media and the blogosphere are abuzz with discussion of the Comstock case and its future implications. Here is a round up of the media and blog coverage (in no particular order): Associated Press (1, 2, video), USA Today, New York Times, Wall Street Journal, Washington Post, Volokh Conspiracy (Volokh, Volokh, Barnett, Adler, Somin), Sentencing Law & Policy (1, 2, 3, 4), SCOTUSblog, Constitutional Law Prof Blog, ABA Journal, TIME, Cato @ Liberty, Los Angeles Times (1, 2), CBS News, ABC News, CNN, AFP, MSNBC, Business Week, National Public Radio, Christian Science Monitor.

What is Necessary and Proper?

2010-05-17T17:59:01-04:00

There are many different angles from which someone could attack the majority opinion issued today in United States v. Comstock. I am on record previously and continue to believe that Section 4248 is an unconstitutional exercise of federal power. In this case, though, I want to focus on the factual claim by the majority and the concurring opinions that 4248 was necessary and proper to execute an enumerated power. From the majority:

Taken together, these considerations lead us to conclude that the statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

While Justice Alito's concurrence believes that the majority holding might be too broad, it affords little retreat on the issue of whether 4248 was necessary and proper:

The Necessary and Proper Clause provides the constitutional authority for most federal criminal statutes. In other words, most federal criminal statutes rest upon a congressional judgment that, in order to execute one or more of the powers conferred on Congress, it is necessary and proper to criminalize certain conduct, and in order to do that it is obviously necessary and proper to provide for the operation of a federal criminal justice system and a federal prison system.

What seems clear from the above quotes is the Court was persuaded that 4248 was necessary (but not absolutely necessary) and proper for effectuation of an enumerated power (the Commerce Clause) because it was intertwined with the administration of a federal prison system. That's nonsense. It seems like the Court was unwilling to acknowledge what everyone who supported this statute knows - 4248 was a means to incarcerate sex offenders after their release. Thus the period of jurisdictional control of the offender would be indefinitely extended. And while the test case was for a prisoner being released, there will surely be persons who have merely been arrested or detained for immigration purposes soon diverted to civil commitment facilities. The Court ultimately relies on analogies to past cases, but I just can't wrap my head around the idea that, even under an expansive view of the Necessary and Proper Clause, there is reason for 4248 in regards to the administration of the federal criminal justice system. This was a clear extension of federal power that was neither necessary nor proper as the federal prison system was wholly unaffected by the lack of 4248 before it was passed. While the outcome was expected, it is still disappointing to see in writing.

United States v. Comstock: Some Early Observations

2010-05-17T16:21:58-04:00

I want to thank Professor Yung for inviting me to share my thoughts here. Today the U.S. Supreme Court handed down an opinion in United States v. Comstock (opinion here) upholding the federal sex offender civil commitment statute (18 U.S.C. § 4248) under the Necessary and Proper Clause. I will have more to say about this decision in the coming days, but I thought I should post some initial observations of the decision.

First, it is not surprising that Justice Breyer authored the majority opinion, since he is known to be the Justice least likely to invalidate federal law. Justices Kennedy and Alito concurred only in the decision. As predicted, Justices Thomas and Scalia dissented.

Second, the majority opinion suggests that there may be future constitutional challenges to Section 4248. Specifically, the majority states:

"We do not reach or decide any claim that the statute or its application denies equal protection of the laws, procedural or substantive due process, or any other rights guaranteed by the Constitution. Respondents are free to pursue those claims on remand, and any others they have preserved."

Finally, I found it interesting that, unlike in Gonzalez v. Raich — where several states argued for state regulation of medical marijuana separate from federal regulation — in Comstock a majority of states argued in favor of federal civil commitment for sexually dangerous persons. Justice Thomas' dissent suggests that the states' motivation might be financial:

Nevertheless, 29 States appear as amici and argue that § 4248 is constitutional. They tell us that they do not object to Congress retaining custody of “sexually dangerous persons” after their criminal sentences expire because the cost of detaining such persons is “expensive” — approximately $64,000 per year — and these States would rather the Federal Government bear this expense. Brief for Kansas et al. 2; ibid. (“[S]ex offender civil commitment programs are expensive to operate”); id., at 4 (“these programs are expensive”); id., at 8 (“[T]here are very practical reasons to prefer a system that includes a federal sex offender civil commitment program . . . . One such reason is the significant cost”).

The cost of civil commitment might be high for states, but does that give the federal government the power to pursue civil commitment in this case? As the dissent points out, "Congress’ power . . . is fixed by the Constitution; it does not expand merely to suit the States’ policy preferences, or to allow State officials to avoid difficult choices regarding the allocation of state funds." Indeed, a "good" policy may nevertheless be unconstitutional.

Changes at Sex Crimes Blog

2010-05-17T12:11:09-04:00

I'm excited to announce that there will be a new face joining Sex Crimes. Truthfully, though, he is not a new face at all. He has been my research assistant for two years and has been an indispensable part of the blog. He graduated in January and is in private practice handling sex offender and other criminal law cases with a small firm. He is Miguel Larios and I am sure you all will enjoy his contributions.

United States v. Comstock

2010-05-17T12:08:30-04:00

The opinion is out. Not surprisingly, the government won 7-2 (Kagan gets a victory at oral argument). I thought Justice Sotomayor would join the dissent based upon the oral argument, but it looks like Orin Kerr called the lineup exactly right with only Justices Scalia and Thomas dissenting (if my memory is right). Despite my recent low-blogging-level, I will have plenty of Comstock coverage throughout the day. For now, though, check out these links:

Opinion upholding federal sex offender statute

SCOTUS upholds broad federal power to commit sex offenders in Comstock

Federal Government Has the Power to Civilly Commit Sexually Violent Predators After Federal Incarceration

Federal Government Wins Comstock

Federalism and Sex Offenders

Other than the holdings, what are the biggest "stories" of the Graham and Comstock rulings?

Today’s orders and opinions

Supreme Court Action

Necessary and Proper to Extend Civil Committment for Sex Offenders: Comstock Opinion Analysis

MA High Court Considers GPS Monitoring for Sex Offenders

2010-05-04T23:05:00-04:00

Recently, the Massachusetts Supreme Judicial Court heard a case where a sex offender who objected to wearing a GPS-monitoring device during his probation term. From the Boston Herald:

Allowing sex offenders to roam free without GPS monitoring has district attorneys joining forces to appeal to have judges granted the authority to slap the fiends with ankle bracelets.
The state Supreme Judicial Court yesterday heard both sides of the controversy in a case about a convicted Middlesex County child rapist who objected to wearing a GPS-monitoring device during his 10-year probation term.After he finished jail and civil sentences last summer, the Probation Department requested GPS monitoring for Goodwin.
Superior Court Judge Kathe M. Tuttman, however, ruled she did not have the authority to impose the monitoring. In her ruling, Tuttman cited a 2009 SJC decision that decided a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively.

Goodwin’s attorney, Beth L. Eisenberg, also said Tuttman’s ruling found imposing GPS tracking amounted to impermissable punishment because he was in compliance with all the terms of his probation.

Since the summer, about 234 sex offenders have been allowed to remove their ankle bracelets as a result of the SJC ruling.

H/T: Sentencing Law & Policy.

Chicago Tribune: "Are sex offender laws working?"

2010-05-04T21:01:00-04:00

The Chicago Tribune has an interesting article discussing how Illinois' sex offender residency restrictions may be doing more harm than good. From the article:

Thousands of sex offenders have remained in prison for parole and then been returned to the streets without oversight or treatment. These offenders are less likely to register their addresses than those serving tightly monitored paroles in the community. They also are more likely to reoffend, sometimes repeating the same sex crimes, the review found.

Of the 1,292 sex offenders discharged in fiscal 2008 after serving parole behind bars, 28 percent were listed as missing, not having registered their address or not being up-to-date with their registrations, compared with 23 percent of the 1,868 sex offenders paroled into the community.

Another 21 percent of the discharged offenders returned to prison, a slightly higher rate than those who were paroled. But in most cases, offenders monitored in the community were sent back to prison for technical parole violations, in many cases housing-related problems, while the discharged offenders were convicted of new crimes.

Sex offender housing restrictions have long been criticized by civil liberties advocates, who argue that it's unjust to banish any segment of society, and by criminal justice experts, who say it's more productive and cost-effective for most offenders to undergo parole supervision and treatment in the community.

Now some victims' advocates and members of law enforcement are echoing the calls for reform.

Swiss Delay Polanski Extradition

2010-05-03T23:11:45-04:00

Switzerland has decided not to extradite Roman Polanski until a California court first resolves whether the fugitive film director can be sentenced in absentia. TalkLeft has more. From the UK Press Association:

Justice Ministry spokesman Folco Galli said that a judgment on sending Polanski back to Los Angeles was still pending, but provided the clearest timeline to date for when Swiss authorities may close their examination.

If it grants Polanski's request to be sentenced in absentia, it could mean that the 76-year-old director avoids a forced return to the US. The Swiss will not extradite him unless he is given a sentence longer than six months.

But rejection from the California court might mean that time has run out for Polanski, who fled the US in 1978 after admitting to having sex with a 13-year-old girl. The Swiss arrested him on September 26 as he arrived in Zurich to receive a lifetime achievement award from a film festival, and imprisoned him for over two months before moving him to house arrest at his chalet in the luxury resort of Gstaad.

Polanski's extradition is a complicated and diplomatically sensitive decision for the Swiss, as it deals with a three-decade-old case with accusations of wrongdoing by a Los Angeles judge, a confused sentencing procedure and the director's own flight from justice. There is also Polanski's status as a cultural icon in France and Poland, where he holds dual citizenship, and his history as a Holocaust survivor whose first wife was brutally murdered by crazed followers of cult leader Charles Manson in California.

Did Jeffrey Dahmer Kill Adam Walsh?

2010-04-05T23:28:00-04:00

The Miami Herald has an interesting new article discussing newly discovered evidence in the death of Adam Walsh which links his death to serial killer Jeffrey Dahmer. Dahmer was living in South Florida at the time of Walsh's death and had a penchant for decapitation. The Herald also cites two witnesses who say they saw Dahmer at the mall with Walsh the day of his abduction. From the article:

Investigating one of the nation's most prominent unsolved murders, a Hollywood detective pitched softball questions and homemade muffins to a serial killer.

He asked: Did you kidnap freckled 6-year-old Adam Walsh from a Sears in 1981? "Nothing to do with it,'' Jeffrey Dahmer answered, taking another muffin.

The word of Dahmer, a sociopath who stashed severed heads in his refrigerator, was instrumental in Hollywood police deciding he was not Adam's killer despite contradictory statements from two witnesses.

In December 2008, Chief Chadwick Wagner called a press conference to say deceased drifter Ottis Toole -- long suspected but never prosecuted -- killed Adam. Adam's parents believed it and Broward prosecutors said Toole was the only valid suspect. Case closed.

But had authorities fully explored Dahmer's time in South Florida, they would have found more evidence implicating him than Toole, The Miami Herald found.

The evidence includes two additional witnesses who said they saw him at the mall with Adam that day, another who placed Dahmer at the scene of an eerily similar abduction attempt two weeks earlier, and people who said he had access to a van fitting an early description of the getaway vehicle.

Iowa Town's Total Sex Offender Ban May Be in Jeopardy

2010-03-30T22:31:29-04:00

A helpful reader informs us that a small town in Iowa (Dyersville to be precise) has decided against repealing an ordinance that bans all sex offenders from residing within the city limits. The ordinance however, is in tension with the state's own residency restrictions which prohibit sex offenders from living within 2,000 feet of schools, libraries, and daycare centers. Thus, it appears that the town's ordinance is in a state of limbo. From The Telegraph Herald:

The Dyersville City Council decided not to act Monday on a repeal of an ordinance passed in 2005 that bans all sex offenders from residing within city limits.

Council member Molly Evers, a longtime opponent of the ordinance, cited a recent change in Iowa Code that takes away power from municipalities to adopt ordinances on residency of sex offenders.

[Under Iowa law], "any motion, resolution or ordinance adopted by a political subdivision of the state is void and unenforceable."

Four days after the council meeting, Evers expressed her displeasure with the decision not to move forward. "Dyersville should do the right thing now and bring its ordinance in accord with state law," Evers wrote in an e-mail to the TH. "Unfortunately, though, some people cannot admit it when they are wrong.

City Attorney Marc Casey contacted the Iowa Attorney General's office for "informal" advice before forming his opinion, according to Iowa Attorney General spokesman Bob Brammer.

"In our view, a local ordinance in this realm likely would be preempted by the specific language in the statute," Brammer said. "We encourage any city to consider and research if there are potential liabilities if the city enforces an ordinance that has been preempted or voided by state law."
Heavens said he's not concerned about litigation against the city. "Somebody would have to show they were harmed that they can't live in the city limits of Dyersville," Heavens said. "We have never had (sex offenders) come here and ask us to live here."

Meanwhile, a 19 year old Dyersville man has been charged with the sexual abuse of two 13 year old girls. If he is convicted, it will be interesting whether the town will enforce the residency restriction on a current resident.

CT Bill Would Criminalize Interstate Travel Without Notice

2010-03-29T23:03:36-04:00

A helpful reader sends word that Connecticut legislators are considering a bill which would make it a crime for any out-of-state sex offender to enter the state without registering within 48 hours. You may read the proposed law here. From the relevant subsection:

Any person who is a registered sexual offender under the laws of any other state who enters this state and fails to notify the Commissioner of Public Safety in writing not less than forty-eight hours prior to entering the state of the information required under this section or falsely reports such information shall be guilty of a class D felony.

It's likely that this law would raise right to travel issues that have not gained much traction in residency restriction cases.

AZ Lawyer: Adam Walsh Act Unconstitutional

2010-03-26T10:25:00-04:00

According to an attorney representing a retired police officer facing child pornography charges, the federal Adam Walsh Act is unconstitutional both on its face and as applied to his client. Specifically, the lawyer is challenging a provision of the new law that requires his client to wear an electronic monitoring basis. From the Arizona Daily Star:

Michael Piccarreta contends the Adam Walsh Child Protection and Safety Act is unconstitutional as a whole and as it applies to his client, Jefferson Sutton Stahl, because it prevents individual judges from determining whether electronic monitoring is needed.

Stahl, 62, was indicted in January on three counts of possession of child pornography and one count of receipt of child pornography.

His is alleged to have purchased four DVDs containing child pornography in June, one year after retiring from the Tucson Police Department following a 32-year career.

Court records indicate Stahl began communicating online in June 2008 with an undercover U.S. Postal Inspector operating an Internet forum described as "a special group for daddys who love young little munchkins!"

Piccarreta told U.S. Magistrate Judge Thomas Ferraro deciding whether a defendant requires electronic monitoring should be up to the judge, not up to legislation.

"I feel it's inappropriate for Congress to limit judicial power," he said.

Electronic monitoring is an essential part of the pretrial release process for people accused of sex crimes, Assistant U.S. Attorney Carin Duryee said.

U.S. Senate Rejects Sex Offender Amendment To Health Care Bill

2010-03-25T23:18:00-04:00

Sex offender regulation and health care reform don't often mix, but that did not stop Sen. Tom Coburn (R-OK) from trying to bar insurance coverage of erectile dysfunction drugs for sex offenders. Senate Majority Leader Harry Reid (D-NV) was quoted as saying, "how serious could they be offering an amendment on Viagra for rapists?" From the New York Times blog:

It was, by all accounts, the most politically volatile amendment proposed to the health care legislation so far: a proposal by Senator Tom Coburn, Republican of Oklahoma, to bar federal health programs and the future federally regulated insurance exchanges from covering the cost of erectile dysfunction medication for convicted sex offenders.

Mr. Coburn, arguing for his amendment, said it was a step intended to save taxpayers’ money. The proposal, he said, “creates a prohibition so that erectile dysfunction drugs are not paid for by the American taxpayers” for “convicted rapists” and “pedophiles in this country.”

Senator Max Baucus, Democrat of Montana and chairman of the Finance Committee, said, “The amendment offered by the senator from Oklahoma makes a mockery of this Senate.” He added, “It’s a crass political stunt aimed at making 30-second commercials, not public policy.”

The Senate voted to kill the amendment, by 57 to 42. All 57 votes in favor of dismissing the amendment were by Democrats, while two Democrats joined 40 Republicans in supporting Mr. Coburn’s proposal. They were Senators Evan Bayh of Indiana and Ben Nelson of Nebraska.

Should Tennessee Teens Be Included In Sex Offender Registry?

2010-03-25T21:37:05-04:00

Tennessee state legislators are debating whether to include juvenile information (such as names and photographs) into the state sex offender registry. From the Jackson Sun:

State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape.

The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.

Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.

Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.

H/T: Sentencing Law & Policy.