In October, the Kentucky Supreme Court ruled that a state law prohibiting sex offenders from living near schools, playgrounds, and day care centers could not be applied retroactively, to those convicted before the enactment of the law. On Monday, the Court rejected a request to stay the ruling. From The Courier-Journal:
The Eleventh Circuit Court of Appeals today released an opinion in a case involving various challenges to SORNA, including under the Commerce and Necessary and Proper Clauses. The constitutional issues were previously decided by the Eleventh Circuit in United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009), but were raised apparently for preservation purposes. In addition to upholding SORNA, the Court found that sex offenders are not exempt from its registration requirements, even when the jurisdiction in which he is required to register has not yet implemented SORNA. You may read the full opinion here.
Interestingly, the Court did discuss the defendant's claim that he had no duty to register under SORNA because he had no notice of the duty to register (relying on Lambert v. California, 355 U.S. 225 (1957)). The Court distinguished Lamberton the ground that the defendant here had "actual knowledge that he had a duty to register in Alabama." The defendant was admittedly given notice of his duty to register, but the notice was unclear as to whether he must register under state law or SORNA. The Court however noted that there were "sufficient circumstances to prompt [the defendant] to have inquired upon his duty to register." Thus, the Court concluded that “notice of a duty to register under state law is sufficient to satisfy the Due Process Clause.”
From WZTV:
A legislative policy analyst today told Florida legislators that sex offender residency restrictions do not work. The analyst cited studies from Minnesota, Colorado and Florida, which found no connection between where sex offenders lived and where they committed new crimes. From the Miami Herald:
I'm guessing nothing will change in Florida.
The California Supreme Court heard a challenge to the state's sex offender residency restriction law. The plaintiffs in the case are four sex offenders who were found living within 2,000 feet of place where children gather (such as a park, school, or day care center) and who were told that they must move within 45 days. The Contra Costa Times has more. A decision is expected within 90 days. From the San Jose Mercury News:
I think the California case could be important in the overall scheme of residency restriction law. While some courts have found problems with residency restrictions, most of the rulings have been quite limited (either by being based upon statutory grounds or constitutional issues that did not invalidate the entire statutes). California will certainly be the most high profile state that has had its highest court review such laws. If the court issues a definitive ruling against the restrictions, it might have a wider effect.
Thanks to SCOTUSblog, we see that the Supreme Court has scheduled the oral argument in a list of cases beginning in January 2010, including United State v. Comstock (resource page available here), which is scheduled for oral argument on January 12th. The Comstock case deals with the federal government's power to prolong the imprisonment of persons deemed "sexually dangerous" beyond their completed sentences. You may view the argument calendar here.
Earlier, we told you about Minnesota's Moose Lake Sex Offenders Program, which lost 24 of its new 50-inch plasma TVs. Now, WKBT.com reports that some of those TVs will go to the Minnesota Guard. From the article:
Eight of the flat-screen TVs removed from a Minnesota sex offender treatment facility on Gov. Tim Pawlenty's orders will go to Minnesota National Guard facilities.
The state Department of Administration said Wednesday that Camp Ripley, near Brainerd, will get six of the 50-inch plasma televisions that prompted Pawlenty's ire last week. The Guard's Minneapolis and Duluth airbases will also each get one.
Pawlenty called for discipline for whoever authorized buying 26 TVs costing $1,500 each, plus $700 mounting brackets, for the Moose Lake sex offender facility. The Department of Human Services is investigating.
The governor previously announced that 14 TVs will wind up in state veterans homes.
Administration Department spokesman Jim Schwartz said the four remaining televisions will either be used for yet-to-be-determined public purposes or sold.
Here is a (spooky?) collection of Halloween sex offender news stories from around the web:
From Sentencing Law & Policy, we learn that certain Alabama sex offenders are required to attend an educational meeting on Halloween night which will feature "updates on sex offender laws, the Adam Walsh Act and rehabilitation opportunities, as well as training for employment."
Law enforcement officials in Omaha, Nebraska report that they will be paying extra attention to sex offenders on Halloween night. Officials are encouraging parents to check the online registries to know who lives where.
Meanwhile in Missouri, registered sex offenders are required to stay at home from 5 to 10:30 pm on Halloween, absent "just cause" to leave. The ban remains in effect despite a 2009 study that found "no significant increases in sex crimes on or around Halloween after an examination of crime data looking at non-familial sex crimes from 1997 to 2005 against children 12 years old and younger."
Floridian sex offenders also cannot participate in trick or treating at their homes and must display a "No Candy Here" sign on their front doors.
In California, sex offenders who are not on parole or probation are allowed to put up Halloween decorations in their yard, despite objections from neighbors.
Civil commitment of sexual predators in Illinois is a process by which an independent company, Affiliated Psychologists, evaluates inmates prior to release to determine the likelihood of recidivism of sexual predators. They evaluate approximately 2000 inmates a year. That means, in Illinois, 2000 rapists/child molesters/ pedophiles/etc. are scheduled to be released into our communities every year. Only about 5% of those inmates receive recommendations for actual face-to-face interviews.
Julius Anderson was referred for intense review. He was initially deemed incompetent to stand trial, so he was confined to the Chester Mental Health Facility for a short period and finally, upon his release, tried and sentenced to four years in prison. Upon his release in 1977, he returned to his past pattern of behavior. He sexually assaulted yet another woman, was caught, tried, convicted and sent to prison. He was again paroled. He left Big Muddy River Correctional Facility on June 25, 2009. On August 15, 2009, he raped a 25 year old woman and then another on September 1, 2009. He is currently being held without bond, awaiting trial.
This story, unfortunately, is not unusual. Rapists rape. Julius Anderson should have been a prime candidate for civil confinement after serving his prison term. He had received at least 99 infractions while in prison that ranged in seriousness from hitting a guard to stabbing another inmate. Nevertheless, he was found to not have any mental defect that would warrant civil confinement, even over strenuous objections to his release by the States Attorney’s Office. Apparently the evaluators could find no reason to have him committed to a mental health facility. The experts decided that, after their careful evaluation of Julius Anderson, he was not a substantial risk of re-offending. He certainly proved them wrong. Didn’t he? The real question, however, is why. Why was the States Attorney’s Office able to recognize this person as a dangerous human being with a high probability of recidivism, but the psychologists that evaluated him did not.
Opponents of civil confinement, after a sex offender has served his/her prison sentence, argue that it is wrong not to release a person after their debt to society is paid. I doubt that Julius Anderson’s victims felt he had settled his debt with them at the time of his release this past June. Opponents argue that statistics demonstrating a high rate of recidivism for sexual predators are erroneous. They cite to research to argue that sexual predators can be rehabilitated if counseling is started immediately upon incarceration. I argue that it is almost impossible to measure rates of recidivism of a sexual predator.
Sex crimes are now, and historically have been grossly underreported. As such, how can anyone determine if a released offender has re-offended? The fact that he has not been rearrested is not documented proof that he has not re-offended. Perhaps he has gotten better at getting away with his crime. In reality, the only way to accurately determine of how many sex offenders do not re-offend, researchers would have to interview every person a released offender was in contact with from the time of release to the time of the offender’s death. I have been unable to locate such a study.
Although keeping sexual predators locked up may not be the politically correct solution, it is the safest. There is much talk of educating these convicts and assimilating them back into society through various forms of therapy. There are no guarantees that this approach will work for any portion of this particular criminal population and the risk of failure would produce far too great a consequence, as in the case of Julius Anderson.
Cook County Sherriff Tom Dart wants the popular website to eliminate its “erotic services” section. Dart states that Craigslist serves as the “single largest source of prostitution in the nation”. Dart also stated “Missing children, runaways, abused women and women trafficked in from foreign countries are routinely forced to have sex with strangers because they're being pimped on craigslist." Craigslist e-mailed a response to CNN stating that “craigslist is an extremely unwise choice for those intent on committing crimes, since criminals inevitably leave an electronic trail to themselves that law enforcement officers will follow”. Craigslist entered into an agreement with 43 states to impose restrictions on its “erotic services” section. These restrictions include phone number verifications to make sure real phone numbers are being used in the ads, and also imposing a listing fee for posting in that section. Dart responded to the measures imposed by craigslist by saying it is “ dirty money” and that pimps use stolen credit cards or just post their ads in other free sections of craigslist.
On this issue I agree with Dart. Practically speaking, there is no good way to deter pimps, prostitutes, or individuals offering sexual services for that matter from posting ads on Craigslist. Although Craigslist makes a good argument that it is unwise for individuals seeking to promote prostitution to post on Craigslist because they are giving a trail to the authorities as to their whereabouts; this fear alone obviously does not deter them from posting as evidenced by the amount of posts still there. Imposing a requirement for individuals wishing to post in the “erotic services” section to pay a fee using a credit card does not seem to be a viable way to deter prostitution either. In defense of Craigslist I would also argue that it is not viable for them to try and regulate every single section of their website. Individuals who want to solicit sexual services will figure out how to post on different sections of their website.
Craigslist now has an “adult services” section in lieu of the “erotic services” section. The biggest difference being that all photos and text will be manually reviewed by craigslist before being posted.
Doug Berman at Sentencing Law & Policy has an interesting post discussing the religious rights of sex offenders. Berman also directs us to a post by Cornell Law Prof. Dorf who discusses the issue in a bit more depth. From Sentencing Law & Policy:
There has been a pretty active discussion about this case on the Criminal Justice Professor listserv. My inclination is that this type of challenge has a fair chance of success if 1) the offender can show that the restrictions essentially make all churches off limits if Sunday School counts as a day care; or 2) a secondary constitutional right besides free exercise is implicated. There are similar cases emerging across the country and I'm interested to see how the courts treat these claims.
The approach of Halloween brings with it lots of interesting sex offender issues, which we have frequently blogged about. Recently, the Tennessee Board of Probation and Parole has notified sex offenders on supervised release that they cannot participate in Halloween activities involving children. You may view the complete list of restrictions here. Officials in Albany, New York have done the same. From the article:
The Halloween panic is always predictable, but I'm still waiting for any evidence that children are at greater risk on Halloween than any other day of the year. While kids are out and about, they are often among other children and/or supervised by adults. Further, the kids whereabouts are pretty well known to the parents (at least within a certain radius). If a child is victimized or disappears on Halloween, I'm sure the police will go right to the area sex offenders. That seems like a pretty good deterrent for crimes on that particular day.
Newsday has an interesting new editorial explaining the obvious: sex offender residency restrictions don't make kids safer. From the editorial:
Conventional wisdom is a powerful force that often leads the well-intentioned astray. For example, there's the widespread belief that we can make children safer by restricting where known sex offenders are allowed to live. The notion is enticing in its simplicity. Make sure offenders don't lay their heads near schools or parks or other places where children congregate, and kids will be safely ensconced in a predator-free bubble. Unfortunately, it isn't that easy.
Residency restrictions don't make children safer. In fact, they may make communities more dangerous by pushing offenders underground. No one wants a sex offender living nearby. And the effort to protect kids is important and heartfelt. But the public, and elected officials, shouldn't waste their time and energy on ever more exclusionary residency laws.
Having a kid snatched by a stranger skulking around a school yard is a nightmarish prospect. But that's not how it usually happens. Nine out of 10 children who are sexually abused know and trust their abusers. They aren't strangers. They're a relative or babysitter, a coach or Mom's boyfriend. It's proximity through those and other relationships that puts children in harm's way.
Even when the attacker is a stranger, victims are increasingly likely to have met them on the Internet. Besides, residency restrictions limit where offenders sleep, but not where they go. So they provide a false sense of security, while doing nothing to prevent most dangerous encounters.
What these restrictions do instead is cluster offenders in fewer and fewer places - too often in poor, politically powerless communities. And as it becomes harder for offenders to find legal housing, more will drop off the grid. They'll report false addresses, or stop reporting any address at all. Some will become homeless and virtually impossible to monitor. And when the restrictions force offenders away from the support of relatives and counselors, or make it difficult for them to work, those laws increase the likelihood that they will reoffend.
Officials at Minnesota's Moose Lake Sex Offenders Program have lost 24 new 50-inch plasma TVs after Gov. Pawlenty called their purchase "boneheaded." From the Star Tribune:
State officials said the televisions, which were mounted in common areas, made it easier to supervise patients at the 400-bed facility.
But when Pawlenty learned of the purchase in a Star Tribune story on Tuesday, he ordered the televisions removed immediately and sold if possible.
Later, Pawlenty spokesman Brian McClung said that Pawlenty wanted to go even further. "The governor believes those involved should be reprimanded, at a minimum," McClung said. A spokesperson for the state sex offender program said a review is underway.
Pawlenty's pledge to find out who had authorized the purchase, Winkler said, was an attempt to divert attention from high-ranking officials, and showed that "the buck stops nowhere."
The Department of Justice has announced more than $7.3 million in grants for state and local governments to implement, train, maintain, and enhance their sex offender programs. From the press release:
These grants, administered by OJP's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART), break down into three areas of funding: Adam Walsh Act (Title I) implementation, Comprehensive Approaches to Sex Offender Management (CASOM) support, and Dru Sjodin National Sex Offender Public Website (NSOPW) operation.
More than $4.6 million will be used to develop or enhance sex offender registration programs; improve law enforcement and other justice agency information sharing as it relates to sex offender registration and notification; and implement other efforts aimed at furthering the objectives of Title I of the Adam Walsh Act, the Sex Offender Registration and Notification Act (SORNA).
The Adam Walsh Act was signed into law on July 27, 2006 and is designed to protect children and adults from sexual exploitation and violent crime. The Act also aims to prevent child abuse and child pornography, promote Internet safety, and honor the memory of Adam Walsh and other crime victims. SORNA was enacted to protect the public from convicted sex offenders and offenders against children by establishing a comprehensive national system for the registration and notification to the public of those offenders.
In addition to the $7.3 million, another $985,000 will help maintain, operate and enhance the Dru Sjodin National Sex Offender Public Website (NSOPW) and support the Tribe and Territory Sex Offender Registry System. NSOPW links to state, territory, and tribal sex offender public websites and allows the public to search for registered sex offenders on a national scale. With close to 20 million users and counting, NSOPW is an invaluable resource to the public.
Central Florida has come up with an innovative new way of getting rid of a group of sex offenders who have congregated together in a mobile home park: set up a daycare center nearby and push them out. From WKMG Orlando:
What began as concern over a school bus stop located on Orange Blossom Trail near a mobile home park that houses more than 90 sex offenders became a plan to push them out in the name of children’s safety after a proposal to move the bus stop didn’t work.
The woman who came up with the plan, Barbara Farris, said she wants them out and away from the public school bus stop. In fact, Farris has been sitting down the street, protesting their presence.
According to the release conditions placed on sex offenders, they are prohibited from living near schools, churches and day cares, but there is nothing that says can’t live by the bus stop.
So Farris has ramped up her efforts, and said she has a location for the day care facility locked down and is working with someone who already owns multiple day cares.
“Once we get our license approved, they have 24 hours to relocate,” Farris said.
Farris said she has a list of other monitored communities where they could relocate, but all are out of the county.
I applaud the honesty. I guess it was only a matter of time before sex offender restrictions were used strategically. In other states, the lack of a grandfather clause for pre-existing residences has created Takings Clause issues. I wonder if there is a similar challenge currently underway in Florida. Certainly if the day care plan goes forward, I imagine there will such a lawsuit.
Brian Dugan had been sentenced to life in inprison for the 1984 rape and murder of twenty seven year old Donna Schnorr and the 1985 rape and murder of seven year old Melissa Ackerman.
Prior to these two horrific incidents, Jeanine Nicarico a ten year old girl from Naperville was home from sick school with the flu on February 25, 1983. Jeanine went missing on that February day to be found dead two days later. Jeanine Nicarico was raped and murder just like Donna Schnorr and Melissa Ackerman would be a year later and two years later, respectively.
Countless other young girls and women were approached by Brian Dugan; some were able to escape unharmed, but others had not been so lucky. In the aftermath of these terrible tragedies, several woman had come forth saying they had been raped by Brian Dugan.
In 1985, Brian Dugan admitted to raping and murdering Jeanine Nicaro; yet, his admission was completely disregarded. Since then, two other men, Ronaldo Cruz and Alejandro Hernandez, had been wrongfuly convicted of the rape and murder of Jeanine Nicarico. Both of these men had spent countless years in prison for a crime that Dugan had confessed to. What does this say about our criminal justice system?
Over twenty years later, in November of 2005, Brian Dugan was first indicted for the rape and murder of Jeanine Nicarico. Would justice finally be served? Upon Dugan's indictment in the Nicarcio case, we have learned of Dugan's troubled beginnings. His dad was an alcoholic. He ran away from home at fifteen when he committed his first burgarly. Trouble with law enforcement led to Dugan being sent from one juvenile facility to another to jail to prison, but he had always been released early.
At the age of seventeen, Brian Dugan approached a ten year old girl named Barbara asking for directions, but she was one of the lucky ones who was able to escape.
Now Brian Dugan is fifty two years old. He has not seen the light of day since 1985; over twenty four years ago. Twenty four years after confessing to the rape and murder of Jeanine Nicarico once again Brian Dugan has confessed to committing this terrible tragedy. Joe Birkett, ironically, a John Marshall alumni, is pushing for the death sentence of Brian Dugan.
Media reports tell us that Brian Dugan is in isolation for contacting media outlets. It has been alleged that Dugan is contacting media outlets to taint possible jury pools. In determing whether Dugan should be sentenced to death, is Dugan's attempt to contact the media really going to make a differnce when a jury of twelve decide his fate after he admitted to raping and killing a ten year old little girl?
Judge Bakalis describes Dugan's attempt to contact the media as one to spread the word that he is a changed man. Will Bakalis' isolation of Dugan to prevent him from contacting the media really make a difference? Will a jury have already made up its mind in deciding Dugan's fate? A twice convicted rapist and murderer? Brian Dugan is already serving life in prison. Nothing the criminal justice system does can bring Jeanine back. You be the judge on whether an attempt to cut off media publicity of the Brian Dugan potential death penalty sentencing will really matter?
http://www.dailyherald.com/story/?id-308721
http://www.chicagotribune.com/news/local/chi-dugan-plea-29-jul29,0,7666614.story
http://www.chicagotribune.com/news/local/chi-dugan-02-sep02,0,1048455.story?track=rss
John A. Humbach (of Pace University School of Law) has posted a new article on SSRN entitled: 'Sexting,' the First Amendment and Prosecuting Teens. From the abstract:
H/T: Legal Theory Blog.
Both the St. Louis Post-Dispatch and Time.com are running editorials asking whether sex offenders can be banned from churches, a topic we previously discussed. From the St. Louis Post-Dispatch:
James Nichols, 31, is a convicted sex offender who can’t understand why he is isn’t allowed in church.
According to this story by the Associated Press, Nichols was arrested after attending a church in North Carolina that also contains a daycare center. North Carolina law states that sex offenders can not come within 300 feet of “any place intended primarily for the use, care or supervision of minors.”
Nichols is now challenging that law as it relates to churches, claiming that his ability to practice his faith is critical to his rehabilitation.
According to the AP article, Joseph Green, pastor of a church Nichols attended, had this to say "I told him as long as he’s honest with me, then we’re willing to embrace him and help him focus and get his life back on track."