Justice Department's SMART Case Law Update #24

As previously noted, the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering and Tracking (SMART) occasionally posts updates on case law developments in the sex offender realm. You can view the latest update here. Here are some of the cases from Update #24:

People v. Blair, 2009 N.Y.S.2d 890 (CCNY Albany, Feb. 18, 2009); People v. Oberlander, 2009 N.Y. Misc. LEXIS 325 (Rockland Cty., Jan. 22, 2009)
 
Citing the decision in G.H. v. Township of Galloway, 951 A.2d 221 (N.J. App. 2008), held local residency restrictions invalid because they are preempted by the comprehensive and detailed State-level regulatory scheme regarding the registration of sex offenders.
 
People v. Knox, 2009 N.Y. LEXIS 16 (Ct. App. Feb. 17, 2009)

Knox and her co-petitioners had all been convicted of non-parental kidnapping of a minor.  Their due process challenge to being listed on the New York Sex Offender Registry was rejected.
 
U.S. v. Rose, 2009 CCA LEXIS 56 (Feb. 12, 2009)
 
Because the court concluded that Rose’s counsel “affirmatively misrepresented” that he would not have to register as a sex offender, and he pled guilty at least in part because of that misrepresentation, it constitutes ineffective assistance of counsel, and the findings of guilt were set aside.
 
Burchette v. Sex Offender Screening and Risk Assessment Cmte., 2008 Ark. LEXIS 551 (Oct. 23, 2008)
 
Arkansas’ sex offender registry scheme calls for a risk assessment to determine what level of community notification is required for an offender.  Burchette wanted to have a hearing (where he could testify, in person) before that determination was made.  The court concluded that because Burchette was interviewed as part of the assessment process, and could submit a written statement to the appellate committee, there was no due process violation.

The decision in Rose should be noted by criminal defense attorneys as plea deals in sex offense cases often revolve around whether the defendant will be required to register as a sex offender. Under the AWA, avoiding registration is increasingly hard to accomplish since courts seem to be taking a non-categorical view of what constitutes a "sex offense" under SORNA.

Comments

[Anon]

Is it too cynical to wonder of the government uses Lexis citations because they are less accessible to the public? I can't find Rose even on LexisOne and don't know the jurisdiction, unless CCA is the jurisdiction. Is it?

[Corey Rayburn Yung]

I'm not certain why SMART only gives Lexis cites, but it might be because Lexis is free for the government (at least I think it still is). Anyway, I looked it up and this is the only alternate cite: 67 M.J. 630. It is a case from the Air Force Court of Criminal Appeals, so I'm not certain how easy that is to find through free resources. I hope that helps.

Corey

[Anon]

Thank you, Mr. Yung. Yes, it helps.

[Anon]

Found it and another cool blog that mentions your in the comments.

https://www.blogger.com/comment.g?blogID=34853720&postID=8620746534577602863

Thanks again.

[Joe]

The sex offender registry regulations are getting sillier and sillier. If we are going to assess a prison sentence, why are we punishing people long after their time is served?

[Kaiser]

Can one of the professionals in this area, contact the organizers of NYC Human Sexuality Conference scheduled for August 15-16, 2009 and see they you can be included on their program? This messages need to shared with many people especially in such conferences. http://www.conference00.com

[Vivia]

I think alot of people have the mistaken idea that an offender's sentence is over the minute they step out of prison. That is not true. You should look at sex offender registry to be sort of a probation.
Many prisoners are released from prison on lifetime probation.

[Dave]

"You should look at sex offender registry to be sort of a probation."

Which is exactly the sort of problem that is being discussed in legal circles as it is an automatic condition set by legislators and not the courts.

[n o n c i t i z e n 2 0 0 9]

Former Sex Offender Registries should be viewed as a means by which criminal governments at all levels can add punishments and harassment at any time to the people listed on them. It is the means by which criminal governments can punish the people on the lists at any time that they like for the rest of their lives. The punishments do not have to make sense, do not have to be supported by any facts, and do not have to have even the slightest, slimmest hope at all of doing anything useful. The punishments don't have to be moral or have even a chance of being close to legal.

I have been Registered for a long time. I know very well that Registration is not only worthless, it is counter-productive and worse. The retroactive punishments and harassment that so many government have inflicted and tried to inflict upon me have not been acceptable and it has turned me into a person who will never cooperate with criminal governments of the United States.

I retaliate because of these laws on a near-daily basis. I do not break any laws but my actions have been very damaging. That is not going to stop. Because of these laws, and ONLY because of these laws, I am around children all of the time. I have developed close relationships with many. That doesn't hurt anyone but it is certainly the proper, moral response to these laws. All people who are listed on any Registry should do the same and more. Retaliate as often as possible.