MD - Ruling could scrub quarter of sex offender registry

Original Article

06/30/2014

By Ian Duncan

One-fourth of the names on Maryland's sex offender registry could be removed after the state's top court expanded Monday on an earlier ruling that adding offenders from before the list was created violated the state constitution.

The Court of Appeals declared last year that the state could not require the registration of people who committed their crimes before October 1995, when the database was established. State officials removed the one name in question in that case but maintained that federal law required them to keep older cases in the database.

On Monday, the judges ruled in that case and another one that federal law doesn't override the state constitution.

"Where we have declared the retroactive application of Maryland's sex offender registry to be unconstitutional, the State must remove [the men's] information from the registry," Judge Clayton Greene Jr. wrote for the court.

Those who say the registries are punitive and do little to protect future victims hailed the ruling, but victims' advocates expressed disappointment. They see the registry as a useful tool to alert families to potential predators in their midst.
- You don't need the registry for that!  "Potential" predators are all around you, so are "potential" murderers, etc!

As many as 1,800 of the state's 8,000 registered sex offenders could be affected by the decisions, and other cases are pending that could expand the number of people whose names are scrubbed.

Maryland requires people convicted of certain sex crimes to register for 15 years, 25 years or for life, depending on the severity of their conviction, and publishes a searchable online database of those on the list.

Lisae C. Jordan, the executive director of the Maryland Coalition Against Sexual Assault, said the ruling means Maryland will now need to look at other ways to track dangerous offenders.

"We cannot rely on the registry," she said. "We need to take other steps."
- You can't rely on the registry even without this case!

Nancy S. Forster, an attorney who argued the cases on behalf of the two men, said the court made clear that its decision should apply to anyone who was required to add their names to the registry even though their crimes took place before its creation.

She pointed to language in Greene's ruling, noting that the constitutional issue applies not just to the men who had sued but also "individuals similarly situated in Maryland."

"I believe this means that the state absolutely must remove these people automatically, without each individual having to go to court seeking removal," she said. "If the state does not remove them automatically, I will contemplate the need for a lawsuit."

David Paulson, a spokesman for the Maryland attorney general's office, said the state's lawyers will review the decision before offering legal advice to the Department of Public Safety and Correctional Services, which manages the list.

The state's high court was considering challenges brought by two men, who are identified in court records as John Doe and John Roe.

Doe is _____, a former teacher who pleaded guilty in 2006 to a single court of child sexual abuse for a 1984 incident involving a 13-year-old student. John Roe has not been identified, but according to court records he was convicted of third-degree sex offense in 1997 for conduct involving a 14-year-old victim.

The ruling last year was on _____' case alone. It examined state laws from 2009 and 2010 that made registering a requirement even for those convicted before the creation of the database.

The court ruled that requiring people to go back and register amounted to punishing them twice, a violation of the state's constitution.

After losing that case, officials reluctantly agreed to remove _____ from the registry but vowed to keep on fighting.

They took the fight back to court, after a trial court judge ordered the removal of _____' name from state and federal databases, and argued that federal law required that they keep the offenders' names on the list.

The Court of Appeals rejected that view.

MA - SJC ends lifetime parole supervision for sex offenders

Original Article

06/11/2014

By Maria Cramer and John R. Ellement

The Massachusetts Supreme Judicial Court ruled Wednesday that it is unconstitutional for sex offenders who have completed their sentences to be subject to lifetime supervision by the state’s Parole Board, declaring that only judges have the authority to order additional jail time for criminal violations.

The 6-1 decision ordered an end to the state Parole Board’s oversight of an estimated 300 sex offenders — oversight that allowed the board to impose jail sentences for parole violations — in a ruling that many lawyers declared a victory for due process. But victims’ rights advocates and a state prosecutor said they fear the decision removes a critical safeguard.

“The effect this case has is to remove that automatic hammer on offenders who refuse to confine their actions to the requirements of the law, thereby decreasing their incentive to improve themselves and become law-abiding members of society,” Plymouth District Attorney Timothy J. Cruz said in a statement. “I am disappointed with the loss of this public safety tool that was intended to protect vulnerable people and children.”

The court said the 1999 state law that created “community parole supervision for life’’ for some sex offenders unconstitutionally granted sentencing powers to the Parole Board, which is part of the executive branch of the state government, violating the separation of government powers. An offender sentenced to lifetime parole could be sent to jail for violating the terms set forth by the Parole Board, even after the offender’s original sentence is completed.

Lifetime parole “constitutes an impermissible delegation to the executive branch of the core judicial function of imposing sentences,” Justice Ralph D. Gants wrote for the majority. “A judicially imposed sentence is final and may not be modified by another branch.’’

Laura M. Banwarth, a Plymouth lawyer who argued that the law was unconstitutional, said the court had no choice but to strike it down.

She noted that the SJC ruling instructs the offenders who are affected to file a motion with the courts; a prosecutor then may ask a judge to impose a new sentence. Judges have the discretion to put an offender on probation for months, years, or the rest of his of her life.

“The SJC didn’t make any new laws today,” Banwarth said. “They didn’t give any new rights to sex offenders. They just looked at the Constitution and reached the only result that they could, that sentences can only be handed down by judges.”

Supporters of the law said that it provided for strict oversight over dangerous criminals. Many of those sentenced to lifetime supervision were sometimes ordered to wear GPS devices and clear many activities, from going to the movies to buying a cellphone, with their parole officers.

But the vast majority of the 275 to 300 sex offenders currently under Parole Board lifetime oversight came under the panel’s supervision because they failed to register as a sex offender after being released from incarceration, not because they had committed another sex crime, according to those familiar with the process.

The lifetime supervision could be onerous for offenders trying to get their lives on track after being released, said Eric Tennen, an attorney who often represents sex offenders.

“It was horribly restrictive and just totally ineffective helping persons reintegrate into society,” Tennen said. Offenders on lifetime supervision could be incarcerated for 30 days for their first violation of their parole conditions, 180 days for a second violation, and one year for a third violation.

The violations could be as minor as getting caught with alcohol or leaving the state without notifying a parole officer.

The SJC ruling was made in the case of _____, a Level 2 sex offender who was placed on parole for life after he failed to tell police he had moved from West Bridgewater to Taunton.

He challenged the sentence, his lawyers arguing that it was unconstitutional under the doctrine of separation of government powers.

Cruz and Toni Troop, spokeswoman for Jane Doe Inc., a statewide coalition that advocates for the rights of victims of rape and domestic violence, urged the Legislature to pass an alternative law that would allow continued monitoring for sex offenders.

“Lifetime parole and supervision . . . has been a cutting-edge and critical tool in sex offender management and community safety,” Troop said.

State Senator Bruce Tarr, a Gloucester Republican, said that the Legislature would have to act fast to come up with legislation that passes constitutional muster. The legislative session is scheduled to end July 31.

“There is no question that we need to act here, because the court has taken away a serious tool for public safety,” Tarr said.

But Suffolk University Law School associate professor Chris Dearborn said the court’s decision will not create a threat to public safety. Offenders must still register with the Sex Offender Registry Board or face criminal prosecution.

“I don’t think there should be any mass hysteria that 300 really dangerous deviant people are going to go out and commit a lot of heinous acts,’’ Dearborn said.

In his dissent, Justice Robert Cordy wrote that while the law was flawed, lifetime supervision should be allowed.

“A [community parole supervision for life] sentence serves an important and central monitoring purpose, facilitating public safety by permitting and requiring intensive supervision of the sex offender population,” Cordy wrote.

OK - Sex registry law needs overhaul

David Slane

Original Article

06/04/2014

By David Slane (Law Firm)

In 2007, the Oklahoma State Legislature approved a new law that required all sex offenders be classified under a three-tier system that placed offenders in a specific category depending on the nature of the sex crime.

However, the Oklahoma Department of Corrections (DOC) went a step further and made the new registration law retroactive to 1998. However, in June 2013, the Oklahoma Supreme Court ruled the retroactive application of the rule was unconstitutional.

The court’s landmark ruling allowed more than 2,000 sex offenders to remove their names from the statewide registry because their registration requirements had either expired or would be prolonged by the 2007 law.

The law has left everyone scratching their heads about what’s next. The current registration system makes no sense and leaves plenty of room for debate about fairness and public safety.

It makes sense for the state Legislature to return to the drawing board and start over on this law.

Some people are on the registry because they urinated in a public street, and they’re not sex offenders. State officials need to stop wasting time and precious resources on those registrants. For the record, indecent exposure convictions and other low-level offenses require 15 years of registration.

Instead, devote the majority of resources to the high-risk offenders who need the most intensive supervision and strictest registration requirements the state can offer. The high-risk offenders should be required to check in daily, which would give the public a higher level of security.

Level 2 offenders, those who pose a moderate danger to the community, must register for 25 years. Meanwhile, Level 3 offenders, those who pose a serious danger to the community and are likely to engage in criminal sexual conduct, must register for their lifetime.

Part of the problem is that DOC officials, when implementing the system, tossed most of Oklahoma’s sex offenders into the Level 3 category. They didn’t want to take the heat to make an honest assessment of each case.

Changing the system will take a groundswell of public support. Still, reform of any kind might cause consternation for most state lawmakers who have never seen a sex offender law they didn’t like. It’s popular to be tough on crime, which includes drunks who urinate next to their car.

It’s time for Oklahoma legislators to stop thinking about re-election and polls and study what works and doesn’t work with the sex offender registration system.

One solution is to remove the registration assessment out of the hands of DOC only and rework the procedure to include trial judges, district attorneys and defense attorneys. That would provide a higher level of fairness while ensuring public safety. A broken system gives parents and the community a false sense of security while really protecting no one.

When most people think of a sex offender, they think of a baby raper or serial rapist. But the truth is most sex offenders are convicted of nothing even similar. We need to stop painting every sex offender with the same broad brush and look at individuals for what they did and act accordingly.

While high-risk sex offenders need to be closely supervised, it’s critical for others who have completed their sentence to be given a second chance at life.

MA - Retroactive Application of Sex Offender Law Rejected

Original Article

04/01/2014

By Amaris Elliott-Engel

The Massachusetts Supreme Judicial Court has declared unconstitutional the retroactive application of the state's amended sex offender registration law. The ruling came in a proposed class action brought by all level-two sex offenders in Massachusetts (Moe v. Sex Offender Registry Board).

State law was amended July 12, 2013, to require the Massachusetts Sex Offender Registry Board to publish in its registry information about defendants given a level-two or level-three classification. Previously, the board was barred from publishing on-line information about level-two offenders—those deemed at moderate risk of reoffending. While legislators intended the change to the registration regime to apply retroactively, the state’s court of last resort said that would violate due process under the Massachusetts Declaration of Rights.
- And if it's unconstitutional for Level 2 & 3, so is it for Level 1's as well.

“The practical consequence of the recent amendments is that offenders whose degree of dangerousness, according to SORB, was not so substantial that Internet publication of their information was needed to protect the public safety would now be subject to Internet publication of their registry information,” the court said.

“And further, those offenders who did not challenge their level-two classification … because they specifically relied on their accurate understanding that a level-two classification did not carry the consequence of Internet publication of their registry information, would now be subject to exactly that.”

The court remanded the case for an entry of an order certifying the class and permanently enjoining the board from publishing information about any offender finally classified as a level-two sex offender on or before July 12, 2013.

“Of the 11,171 sex offenders registered with SORB as of July 12, 2013, registry information is currently available on the Internet only for the 2,422 level-three offenders, a group that comprises approximately 21.7 per cent of registered sex offenders,” the court said. “Were the recent amendments to become effective, the number of offenders whose registry information is publicly available would rise to 8,496, approximately 76.1 per cent of the sex offenders registered with SORB.”

NH - Bill would ban limits on sex offender residency - Court rules them unconstitutional, but politicians don't want to look "soft" on crime!

Original Article

03/29/2014

By LYNNE TUOHY

CONCORD (AP) - New Hampshire lawmakers are considering whether to bar municipalities from restricting where the state's more than 2,500 registered sex offenders can live in light of court rulings that found the restrictions are unconstitutional.

The House passed the proposed ban by a vote of 231-97 in February. The bill now moves to the Republican-controlled Senate, where it faces an uphill battle.

The New Hampshire Civil Liberties Union successfully challenged sex offender residency restrictions first in Dover, then in Franklin.

In the most recent ruling in 2012, a Merrimack County Superior Court judge said Franklin officials failed to show that barring sex offenders from living within 2,500 feet of a school, day care or playground protects children. A judge in 2009 struck down Dover's ordinance on similar grounds.

"Many individuals in law enforcement have said the restrictions have the opposite effect," said Devon Chaffee, executive director of the New Hampshire Civil Liberties Union. "They discourage sex offenders from registering and make it more difficult for law enforcement to keep track of them. It drives them underground."

Tilton, Sanbornton, Northfield and Boscawen still have residency restrictions, Chaffee said.

"That's why this is really a state issue," Chaffee said. "When one town adopts these restrictions, it can push these individuals out of that city or town."

There were 2,566 registered sex offenders living in New Hampshire in December 2013, according to data compiled by the National Center for Missing and Exploited Children. State law requires sex offenders to register with the police department of the town in which they reside but puts no restrictions on where they can live, leaving that to local governments.

_____, 32, of Nashua, was convicted in 2010 of felonious sexual assault for having sex with a 15-year-old girl when he was 25. He maintains the sex was consensual. Since his conviction, he has found it difficult to find housing.

"I had that one mistake," _____ said Friday. "It's not like I'm stalking little 3-year-olds. Trying to survive afterward has become harder than the original charge."

His sister offered to let him live in her home in Hudson, then discovered police had hand-delivered letters to her neighbors detailing _____' criminal conviction. His sister told him he could no longer live there because she feared her children would be bullied, he said.
- Even the public knows the online registry and notifications put lives in danger!

Hudson police say they have no residency restrictions but confirm their practice is to deliver notices to residents when a sex offender moves into a neighborhood.

"Each city has its own strict rules," _____ said. "It's like they set you up to fail."

Half the states have laws restricting where sex offenders can live. California's statute was recently found unconstitutional by an appeals court, and a higher court is likely to decide the question. In some places, tight regulations have made it nearly impossible for sex offenders to find a place to live. In 2007 in Miami, more than 100 sex offenders created a camp under a bridge because of strict limits on where they could live.

In the New Hampshire town of Franklin, Town Manager Elizabeth Dragon said its ordinance was amended to remove the residency restrictions after the court ruling. But she opposes a state law, saying other municipalities should have the opportunity to pursue a state Supreme Court ruling on the constitutionality of the restrictions. Franklin withdrew its appeal of the lower court ruling.

"Something that works for one community may not work for another," she said.

Dragon also stressed that the court rulings could change if research links residency restrictions to public safety.

Tilton Police Chief Robert Cormier said his department is not actively enforcing the town's residency restrictions in light of the court rulings.

"The main focus here is really stringent registration and monitoring," Cormier said. "That's the biggest piece for us."

Senate Majority Leader Jeb Bradley, a Wolfeboro Republican, predicts the bill won't pass the Senate.
- Yeah, they don't want to look "soft" on criminals, especially "sex offenders!"

"The Senate is going to want to protect kids and other people sexual predators could attack," Bradley said. "I think getting rid of any kind of residency restrictions — like in proximity of schools and day care centers — will be a very hard sell for senators, even in the face of a couple of court rulings."

Rep. Carol McGuire, a Merrimack Republican, said she co-sponsored the bill because she doesn't think residency restrictions are effective.

"Since other towns were trying to do the same thing, it seemed the sensible thing to do, to head them off at the pass," McGuire said.

Democratic Gov. Maggie Hassan hasn't decided whether to sign the bill if it passes the Senate. Most Republicans in the House voted against the ban.

"The governor will listen to the views of law enforcement, local communities, advocates, victims and all stakeholders as the measure is considered by the Senate," Hassan spokesman Marc Goldberg said.

The Adam Walsh Act - Un-Civil Commitment (2009)

Original Article (PDF)

10/30/2009

Emily Barker
affiliation not provided to SSRN

October 30, 2009

Hastings Constitutional Law Quarterly, Vol. 37, No. 1, 2009

Abstract:
Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act") with the aim of "protect[ing] children from sexual exploitation and violent crime." Among other measures, the Act creates a National Sex Offender Registry, establishes a post-conviction civil commitment scheme, increases punishments for a variety of federal crimes against children, and strengthens existing child pornography prohibitions. The scope of this note is limited to an analysis of the commitment portion of the Act ("Commitment Provision"). This provision authorizes the federal government to civilly commit, in a federal facility, any "sexually dangerous" person "in the custody" of the Bureau of Prisons - even after that person has completed his entire prison sentence.

Recently, the Supreme Court granted certiorari on question of whether or not enactment of the Commitment Provision was within Congress‘s authority. This note will show that Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers. For this reason, the Commitment Provision cannot enacted as a Necessary and Proper exercise of a legitimate federal power. The Necessary and Proper Clause by itself creates no constitutional powers; it merely allows Congress to enact legislation auxiliary to an enumerated or incontestable federal power. Thus, because Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers, it cannot be a Necessary and Proper exercise of those powers and is therefore unconstitutional.

The discussion will begin with an overview of the relevant Supreme Court precedents bearing on a constitutional determination of this kind. This note will show that a proper reading of these precedents demonstrates that the clause upon which the federal government most often defends its power to regulate this subject, the Commerce Clause, is wholly inapplicable to an act like the Adam Walsh Act - legislation aimed at criminal law enforcement where States historically have been sovereign.

Next will be an evaluation of the current split between the Court of Appeals for the Fourth Circuit (“Fourth Circuit”) and the Court of Appeals for the Eighth Circuit (“Eighth Circuit”). This note will show that only the Fourth Circuit, which held the Commitment Provision beyond congressional authority, performed an extensive analysis of the relevant Supreme Court precedents in reaching its holding. The Eighth Circuit, on the other hand, relied only on its own, distinguishable precedents. Thus the only Circuit court to analyze the constitutionality of the Commitment Provision under current Supreme Court jurisprudence has found it to be unconstitutional.

This note will show further that the Commitment Provision does not fit readily into the specific schemes where federal civil commitment has be found constitutional - namely in situations where it is used to prevent and prosecute federal crimes.

Finally, this note will show that the Commitment Provision does not satisfy the due process rationales for which the Supreme Court has found state-authorized civil commitment constitutional. The structure of the Commitment Provision neither comports with the classic rationale for lower proof burdens in state civil commitment schemes, nor does it provide for a probable cause hearing within a reasonable amount of time and the general practice is to keep prisoners locked for months beyond their release dates.

NH - Bill prohibiting sex offender living restrictions raises worry

Original Article

03/08/2014

By Kimberley Haas

CONCORD - A bill prohibiting residency restrictions for registered sex offenders and offenders against children which was passed by the House of Representatives earlier this month is causing concern among some legislators, who say the bill would strip communities of their ability to protect children.

HB 1237 (PDF) is based upon two court decisions where judges found local ordinances restricting residency for offenders to be unconstitutional.

One of the cases cited came out of Dover District Court. In August of 2009, Dover's ordinance that prohibited registered sex offenders from living within 2,500 feet of a school or day care center was deemed unconstitutional by Judge Mark Weaver after a challenge by the New Hampshire Civil Liberties Union. Weaver found the city did not show a substantial relationship between the ordinance and the protection of children.

Judge Larry Smukler cited the same reason when he overturned Franklin's ordinance in 2012 at Merrimack County Superior Court. New Hampshire Civil Liberties Union also challenged that ordinance.

Rep. Jim Webb, R-Derry, contacted Foster's Daily Democrat to voice his concerns this week. He said the bill would force the 11 cities and towns with residency restrictions to allow sex offenders and offenders against children to live wherever they want, even if it is in an apartment above a day care. Webb said this strips local governments of their ability to protect children as they see fit.

Derry does not have residency restrictions for offenders.

Rep. Laura Jones, R-Rochester, said she also believes in local control.

“Because I support local control, I decided to vote against HB 1237,” Jones said.

Jones has a friend that lives in a town where there is such an ordinance and she said her friend reports it is effective and has protected children.

The Rochester representative said she performed her own research on court rulings in this area and found decisions made by judges are mixed.

Rep. Steve Beaudoin, R-Rochester, echoed Webb's concerns about the proximity of sex offenders to children and loss of local control.

“Though the courts have ruled that no town or city can restrict where a sex offender lives, I believe that if a city or town wants to challenge that they should be able to. As I see it, this law will prohibit that challenge,” Beaudoin said.

Supporters of the bill say that residency restrictions deprive registrants of their fundamental property rights and drive them underground.

“The research explains why banning offenders from most areas of a town forces them into homelessness, destabilizes them and concentrates them in the outskirts of town, far away from buses, services, jobs and mediators,” the bill's sponsor, Timothy Robertson, D-Keene, wrote on behalf of the Criminal Justice and Public Safety Committee for representatives to review when preparing to vote.

In an interview Wednesday, Robertson said that every molester is not the same.

“There are lots of cases where a 21-year-old didn't know the other person was 15,” Robertson said. “They simply came upon each other and got what they wanted.”

When asked if the bill would, in effect, allow an offender against children to rent an apartment above a day care center, Robertson said he doubts very much that a person with a day care center on their property would rent to anyone without checking the free public sex offender list which is posted online.

Robertson cited cases of people who are legitimate and successful business owners who are considered sex offenders and others who, even 30 years after the crime, have a hard time finding a job due to the discrimination they face.

Robertson pointed out that judges do have the discretion in individual cases to limit where a sex offender or offender against children can live.

HB 1237 will now go to the Senate, where a similar bill was tabled in 2010.

CA - Assembly Bill Would Increase Sex Offender Rights

Original Article

03/08/2014

The State Assembly is actively considering a bill, AB 1640, that would eliminate the registration requirement for sexual offenses that the California Supreme Court and several Courts of Appeal have ruled violate the equal protection rights of registered citizens. The bill was introduced by Assembly member Jones-Sawyer (Democrat, Los Angeles) and is sponsored by Los Angeles District Attorney Lacey.

“Assembly Bill 1640, if passed, would be an important step toward restoring the civil rights of registered citizens,” stated CA RSOL President Janice Bellucci. “The bill would ensure that courts throughout the state of California consistently enforce recent court decisions.”

Recent court decisions to which the bill refer are based upon the case People v. Hofsheier in which the California Supreme Court ruled that mandatory lifetime sex registration was unconstitutional for those convicted of Penal Code Section 288a(b)(1). Since that case, the Hofsheier ruling has been applied to additional Penal Code Sections including 286(b)(1), 286(b)(2), 288a(b)(2), 288.7, 289(h) and 289(I).

California RSOL supports AB 1640 and will devote resources to its passage. Registered citizens and family members can help to support the bill by contacting their Assembly members by phone, by E-mail and/or by letter. A list of Assembly members and their contact information are available at assembly.ca.gov.

NOTE: This Bill deals with 288a(b)(2) Oral Copulation with a Minor under 16 – NOT 288(b)(2) Lewd or Lascivious act on a Minor under 14 with force or violence

PA - Third Pennsylvania Judge Rules Juvenile Sex Offender Registration Unconstitutional

Original Article

02/28/2014

By Tara Murtha

Under current Pennsylvania law, juvenile sex offenders have to comply with lifetime registration requirements. But this month, a third Pennsylvania judge ruled that law unconstitutional, setting the stage for the issue to be addressed by the state supreme court.

Judges from York, Monroe, and Lancaster counties have now all written opinions stating that the law fails to take juveniles’ greater capacity for reform into account. As Lancaster County Court of Common Pleas Judge David R. Workman wrote in his opinion earlier this month:

Statistics demonstrate that juvenile sex offenders have lower recidivism rates than adult sex offenders. This is due, in part, to the fact that juveniles sexually offend for different reasons than adults. For instance, juveniles lack maturity and impulse control, behaviors which lead to the original offense, but which will not exist once the juvenile reaches adulthood. … During adolescence a juvenile’s brain is amenable to substantial change and develops considerably in areas associated with reasoning and emotion … As a result recidivism rates for juveniles are low and strikingly less than that for adults.

The registration rules for juveniles are the same as they are for adults: For initial registration, they must submit photographs, DNA samples, and fingerprints, along with information verifying all physical details such as hair style, hair color, tattoos, and piercings, as well as descriptions of what car they drive, any family cars they may occasionally drive, the names of schools attended broken down by classroom location, employer’s addresses, and Internet monikers. Following initial registration, they must appear in-person at a pre-approved registration site every 90 days to re-confirm this information and be photographed again. If anything changes, such a new hairstyle, job, or car, they must report the change in-person within three days.

And like adult offenders, juveniles who fall out of compliance are subject to mandatory incarceration for three to five years, with no opportunity to provide a defense.

Aside from the fact that the onerous and expensive system has not been proven effective at making children safer and has been mandated by the federal government, it is very possibly unconstitutional, as the three county-level judges in the state have ruled.

The York County judge cited the work of Dr. Michael Caldwell of the University of Wisconsin, co-author of “An Examination of the Sex Offender Registration and Notification Act as Applied to Juveniles: Evaluating the Ability to Predict Sexual Recidivism” and an expert in juvenile justice issues, as evidence of the disparity in recidivism rates.

From the York County opinion:

In what Dr. Caldwell describes as “the most extensive” research study to date, a meta-study of over sixty-three studies and over 11,200 children “found an average sexual recidivism rate of 7.09% over an average 5-year follow-up.” These rates are compared with a 13% recidivism rate for adults who commit sexual offenses.

Authors of a Human Rights Watch report point out that the concept of sex offender registration relies on the notion that children must be most protected from strangers. They note that 93 percent of sexually abused children are assaulted by family members, close friends, or acquaintances, according to the justice department.

Juvenile assailants are sometimes acting out a cycle of abuse.

“Many of the kids that we represent were sexually abused themselves and were acting out based on what was done to them,” says Riya Saha Shah, attorney at Philadelphia’s Juvenile Justice Center, the organization representing youth on the registry. “Or it was inappropriate sexual contact between siblings. Some of these kids [are] intellectually disabled. It’s not like that stranger rape or adult-predator child molester situation that you may think of when you think of adults on the sex offender registry.”

For particularly heinous crimes, a juvenile age 14 and older who commits crimes that would be felonies if an adult, or use a weapon in the course of a rape, can be tried in court as an adult in Pennsylvania.

The law requiring registration, known as the Pennsylvania Sex Offender Registration Notification Act (SORNA), has only been in effect since 2012. Like states across the country, Pennsylvania passed SORNA in order to comply with the Adam Walsh Child Protection and Safety Act, which was signed into law by President Bush in 2006. States must comply with the act or risk losing federal funding for “essential criminal justice services,” including pre-trial diversion projects for non-violent offenders.

More than 100 Pennsylvania juveniles have been put onto the registry since the law went into effect, according to Shah. Most of them committed acts prior to the law’s implementation, but were forced onto the registry after the law was passed.

The stated goal of SORNA is that “registered sex offenders will perceive that the authorities’ knowledge of their identities, locations, and past offenses reduces the chances that they can avoid detection and apprehension if they reoffend, and this perception may help to discourage them from engaging in further criminal conduct.”

The Human Rights Watch report argues that the real psychological effect on young registrants was profound isolation.

From the report:

They are stigmatized, isolated, often depressed. Many consider suicide, and some succeed. They and their families have experienced harassment and physical violence. They are sometimes shot at, beaten, even murdered; many are repeatedly threatened with violence. Some young people have to post signs stating “sex offender lives here” in the windows of their homes; others have to carry drivers’ licenses with “sex offender” printed on them in bright orange capital letters. Youth sex offenders on the registry are sometimes denied access to education because residency restriction laws prevent them from being in or near a school.

Shah told RH Reality Check that the Pennsylvania Supreme Court is scheduled to address the state’s appeal of the York County ruling, the first of the three, in late March, though it could be postponed if the state also appeals the Lancaster and Monroe County rulings and the cases are consolidated.

Meanwhile, Shah is hearing anecdotal reports that district attorneys and judges reluctant to place kids on lifetime registry are avoiding doing so by offering pleas to non-SORNA offenses or downgrading charges—for example, charging a juvenile for indecent assault, as opposed to aggravated sexual assault.

“That still provides them with the necessary treatment and supervision, but it removes that huge imposition and punishment of the registry,” said Shah.

If the state supreme court rules SORNA unconstitutional, then Pennsylvania will no longer be subject to financial penalties for non-compliance. The other states with SORNA legislation are Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota, Tennessee, and Wyoming.

Many states haven’t passed a SORNA law because the cost of implementation is higher than the penalty for non-compliance.

See Also:

• Juvenile Law Center Wins Second Ruling Declaring Pennsylvania's Juvenile Sex Offender Registration Requirements Unconstitutional
• Supreme Court throws out parts of Megan's Law

Experts: Sex offenders likely to be re-arrested but not for sex crimes

Original Article

02/23/2014

By Jo Ciavaglia

Most registered sex offenders in the U.S. follow Megan’s Law requirements. After all, they want to avoid felony charges and additional prison time associated with noncompliance, according to legal and criminal experts.

But a high compliance rate does not automatically mean they are following the rules, said one sex offender behavior expert. Research suggests sex offenders, who often face difficulty re-entering the community, are at a high risk for re-arrest, though rarely for another sex offense.

Administrative backlogs with the state Megan’s Law registries, which track most sex offenders, are “very common,” experts said. Mostly the backlog is related to policies lawmakers put in place without providing adequate resources or input from law enforcement, they said.

Adding to the challenge of monitoring sex offenders is often the offenders are part of a mobile population.

The transient nature of sex offenders has been linked to increased absconding and recidivism, and thus decreased community safety, according to Andrew Harris, an associate professor in the School of Criminology and Justice Studies at the University of Massachusetts at Lowell and a leading authority on sex offender policy.

Transience also can compromise the ability of law enforcement agents to closely supervise sex offenders without a permanent address.

Pennsylvania is among the states with a high compliance rate among registered sex offenders who appear on its Megan’s Law registry. Compliance rates in the state are typically 96 to 97 percent meaning about only 3 to 4 percent of the more than 15,000 offenders aren’t following monitoring rules. In New Jersey 2.5 percent of the 3,970 registered sex offenders are fugitives, according to police and state statistics.

But among the more than 500 non-compliant sex offenders on Pennsylvania’s registry, fewer than one quarter have active arrest warrants for Megan’s Law violations.

How states determine Megan’s Law compliance varies, but the only accurate measurement is through spot checks and audits, Harris said. A high compliance rate for a state’s sex offender registry doesn’t mean the information is accurate since it’s not unheard of for offenders to provide false addresses, Harris said.

“It’s not uncommon for people to flip out of compliance,” he said. “Just because you show up at a police station and verify your address, doesn't mean you aren't up to something.”

Most non-compliant sex offenders are not willfully avoiding registration, said Harris and Cynthia Calkins, an associate professor of psychology at John Jay College of Criminal Justice in New York. More often it is problems within the system that oversees offenders and a lack of knowledge about the rules.

“(Offenders) simply don’t know. Their lives are unstable. They have to find jobs, housing, they may or may not be able to live with family,” Calkins said. “They don’t always have a stable address and frequent moves may be part and parcel of living in the community.”

Local municipalities had tried to restrict where convicted sex offenders could live, but the Pennsylvania Supreme Court in 2011 struck down as unconstitutional such local laws.

Available research on sex offenders who fail to follow registration requirements suggests they are no greater risk for committing another sex crime than the offenders who are compliant, Calkins said. Harris added that studies show only a “very small” number of noncompliant offenders are attempting to evade detection to commit sex crimes.

But among a “relatively large group” of noncompliant sex offenders are the so-called chronic rule breakers whom Harris said research shows have a relatively high risk of recidivism involving other crimes.

Available research on sex offender recidivism rates is mixed but does show it’s typically low for additional sex crimes.

National data suggests that between 12 and 24 percent — or between one and three of every 10 sex offenders — are known to have repeated crimes, according to The Center for Sex Offender Management, a national project supporting state and local jurisdictions in the effective management of sex offenders. But the center points out the rates are commonly underestimated because the crimes often go unreported.

A report released last year by the Pennsylvania Department of Corrections shows a little more than half of paroled sex offenders end up re-arrested or back in prison, but rarely for a sex crime.

According to the report, nearly half of state inmates released in 2008 who were convicted of forcible rape were either re-arrested or sent back to prison within three years, compared to nearly 60 percent of all inmates. Among state inmates convicted of statutory rape and “other” sexual offenses, the recidivism rate was 50 percent and 60 percent, respectively, for the same three years.

Those recidivism rates are lower than most other inmates convicted originally of robbery (63 percent), murder or manslaughter (52 percent), drug offenses (57 percent) and burglary (72 percent), according to the 2013 report.

PA - Many Pennsylvania sex offenders are due relief from Megan's Law glitch

Original Article

02/17/2014

By BRETT HAMBRIGHT

_____’s newly-found freedom might just be the tip of the iceberg.

_____ was relieved last month from a 6-to-12-year prison sentence due to a flaw in Megan’s Law, a database which includes the registration system for convicted sex offenders.

Now, prosecutors across the state are surveying how many other offenders will benefit from a recent state Supreme Court ruling that deemed part of the registration system “unconstitutional.”

Numerous others could be owed the same relief as _____: dismissal of felony charges.

“I can’t imagine there aren't others out there,” Lancaster County First Assistant District Attorney Christopher Larsen said last week, while perusing local cases.

Not all sex offenders will be getting relief.

The high-court ruling only affects failure to register under Megan’s Law charges, not actual sex crimes.

And only offenders under specific registration requirements that were charged with failure to register between 2005 and December 2012 are eligible.

However, locals say, that could be quite a number of cases.

Larsen estimates “under 50” Lancaster County sex offenders will be eligible for relief, although prosecutors are still sifting through cases for an exact number.

It’s unclear how many of those locals are currently serving prison terms for the charges under review.

“It’s going to be a case-by-case determination,” Larsen said. “If there’s another avenue we can argue [to avoid dropping charges], then we’ll take it.”

That wasn’t an option in _____’s case. Charged in 2010 with two counts of failure to register, the local public defender’s office appealed on _____’s behalf. He was freed on Jan. 27 — and spared of up to 10 more years behind bars.

Lancaster County is home to more than 450 convicted sex offenders who register under Megan’s Law, which is now supplemented by Adam Walsh Act. An estimated 15,700 offenders live in Pennsylvania, according to a state police database.

All are required on at least an annual basis to notify police of their whereabouts.

In December, the state Supreme Court ruled that revisions to Megan’s Law made by lawmakers in 2004 are, essentially, no good. Those revisions included registration rules for certain offenders, the high court ruled.

The opinion opened the door to the review of seven years worth of charges lodged against sex offenders under Megan's Law.

“It can be argued that (Supreme Court decision) creates a complete defense to an ongoing prosecution ... for an (applicable) offense that was committed before December 20, 2012,” Lancaster County Chief Public Defender James Karl said, after his office won the _____ appeal.

It’s unclear what will happen in cases in which an offender has already served a sentence for failure to register between 2005 and 2012.

Prison is often the penalty for those convicted of failing to register. The charge carries a mandatory minimum prison term of between 2 and 7 years, depending on the offender’s prior conviction, according to Karen Mansfield, senior prosecutor in the district attorney’s special victims unit.

The high court stayed its ruling to nullify pre-existing Megan’s Law for 90 days, giving police and prosecutors a head start to deal with the affected cases.

_____, convicted in 2003 of aggravated indecent assault of a minor, will still be required to register his whereabouts under the new system.

And so will others affected by the Supreme Court decision, according to State Rep. Bryan Cutler, a Peach Bottom Republican.

“The registration requirements are still in effect,” Cutler said last week.

Mansfield said the charge of failure to register also will remain.

Cutler and State Rep. Ryan Aument, of Landisville, pointed out that HB 1985 — a revision of law that keeps those registration requirements in place — recently unanimously passed the state House.

Both representatives are optimistic the new registration laws will stick.

Meanwhile, potentially hundreds of offenders statewide are getting a chance to capitalize on the state Supreme Court ruling.