Sex Crimes

11th Circuit Upholds SORNA (Again)

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 federal appeals court has upheld an aggressive federal program aimed at tracking and monitoring sex offenders.

The ruling by the 11th Circuit Court of Appeals on Thursday marks the first time an appeals court in the circuit has upheld the Adam Walsh Act, a 2006 law that aims to create a national sex offender database and creates stiff penalties for those who fail to register.

It stems from the case of William Eric Brown, who was appealing his 2008 conviction for failing to reregister as a sex offender after moving from North Carolina to Alabama. Brown had argued the new requirements were "impossible" to comply with because he never received notification about them.

The three-judge panel's ruling, however, concluded there was "no due process violation."

Halloween Sex Offender Roundup

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.

Alabama Judge Accused of Sexually Abusing, Paddling Inmates

As I try to catch up on the stories that occurred during my blogging break, some of the entries might be a little dated (starting with this one).

A former Alabama judge has been arrested and accused of "sexually abusing and paddling inmates and a defendant who appeared multiple times in his own courtroom." You can read the indictment here. From the ABA Journal:

The charges against former Mobile County Circuit Judge Herman Thomas include kidnapping, sex abuse, extortion and multiple ethics violations. However, a lawyer for the ex-judge says Thomas himself is being victimized by a racist justice system, CNN reports.

"Did you ever think of the fact that this is the only black circuit judge we've ever had in Mobile County and that the right-wing Republicans have gotten rid of him?" said attorney Robert Clark who described the case as a "high-tech lynching" at a Friday news conference. "This is racism at its very finest."

Thomas' law license was suspended yesterday, reports the Press-Register, which has published multiple articles on the case.

If convicted on the most serious charge, kidnapping, CNN reports, Thomas would face a potential prison term of between 10 and 99 years, according to Mobile County District Attorney John Tyson Jr.

Tyson describes the racism allegations as "absolute nonsense," reports the Press Register in an article Friday on the charges against Thomas. Both the judge and the alleged victims are African-American.

Both CNN and the Press-Register say Thomas is accused of checking inmates out of jail in order to force them into sexual activity, at least some of which allegedly occurred in a room near his courthouse chambers, the newspaper reports.

Alabama House Passes Bill Banning Sex Offenders from Living Near Colleges

Alabama's elected officials are at it again. The Alabama House yesterday unanimously passed a bill which would restrict sex offenders from living within 1,500 feet of any college or university. You can read the text of the bill here. From the Montgomery Advertiser:

The Alabama House has passed a bill that would prevent convicted sex offenders from living within 2,000 feet of a college or university.

The bill by Rep. Jamie Ison of Mobile would also prevent convicted sex offenders from loitering within 500 yards of a college or university.

The bill passed the House Tuesday on a 97-0 vote.

Existing law prohibits convicted sex offenders from living within 2,000 feet of high schools or elementary schools. Ison's bill expands the current law to include colleges and universities.

The bill would not prohibit convicted sex offenders from attending a college or university, but they would not be able to live on campus.

Alabama Legislator Wants Death Penalty for Child Rapists

Although the Supreme Court held in Kennedy v. Louisiana that the Eighth Amendment prohibits the death penalty for commiting the crime of raping a child, one Alabama legislator apparently wants to press the issue (or is oblivious to the Court's holding). State Rep. Steve Hurst has proposed a new law allowing judges to sentence persons older than 21 to death for the rape of a child 6 years old or younger. Sentencing Law & Policy has more. From NBC13.com:

Pedophiles who rape young children could face the death penalty in Alabama…if one state lawmaker gets his way.

State Representative Steve Hurst of Munford in Talladega County is proposing a new law that would allow a judge to use capital punishment if someone older than 21 is convicted of raping a child 6 years old or younger.

The death penalty is a punishment that -  so far - has been reserved only for murderers. 

Should child molesters now be included?

With the growing number of child sex predators, Hurst says capital punishment is an appropriate sentence for adult rapists older than 21 who violate children 6 years old or younger.

“You take a child who’s completely helpless. They have no way to defend themselves. And someone does something of this nature to them, you have literally destroyed that child for the rest of their life,“ says Hurst.

But sex psychologist Dr. Keith Abrams warns he doesn’t think the strategy will work.

“We’ve had capital punishment for decades, and we still have murder,“ says Abrams.

Abrams says instead of focusing on deterrents, we should focus on prevention, for both potential victims and abusers.

In Abrams opinion, any adult who could rape a young child is past the point of being concerned about the repercussions.

“When people commit those kinds of crimes, they get to a place mentally where they’re not thinking about deterrents,“ explains Abrams.

The Jefferson County Sheriff’s Department says there are now more than 1000 registered sex offenders living in the county…and at least one third will re-offend.

Introducing capital punishment for some might not be a fix all, but Hurst says, it’s at least a start.

“You’ve got to keep knocking at the door, or you can’t never get in.“

Hurst is still waiting to schedule this bill’s first hearing before the Alabama Legislature.

I think the legislators of Alabama just enjoy being outliers when it comes to sex crimes legislation. This is the only state with a ban on sex toy distribution. And it's rape statute is the oddest in the U.S. 

Alabama Bill Calls For Surgical Castration of Sex Offenders

A bill before the Alabama House of Representatives would require male sex offenders, who are convicted of sexual crimes against victims under the age of 12, to undergo surgical castration. From the Tuscaloosa News:

A bill introduced in the Alabama House of Representatives this week would require convicted sex offenders who targeted young children to be surgically castrated before leaving prison.

The bill would require castration for male sex offenders older than 21 convicted of a sex crime against a victim younger than 12.

Rep. Steve Hurst, D-Munford, has pushed legislation authorizing castration for two years.

“We need a stronger deterrent than what we have now,” said Hurst, who introduced the bill Tuesday. “I’d like for Alabama to take the lead and say that enough is enough.”

Hurst said he has been told by some legislators that the bill would likely die because such a law could be appealed in federal court....

If passed as it is now written, the proposed law would make Alabama the 10th state to authorize castration for sex offenders and the only state that would require surgical castration. The other states call for chemical castration....

Alabama would join Texas as the only state that authorizes surgical castration only, in which testicles, which produce most of the body’s testosterone, are surgically removed....

Other proposed bills affecting sex offenders have been introduced in the legislative session. A House bill would add colleges and universities to the areas in which sex offenders cannot live within 2,000 feet. A proposed Senate bill would prevent sex offenders from living in the county where the offense occurred.

The mandatory castration requirement is insane, but I'm more interested in the last paragraph of the article. What is the rationale from preventing sex offenders from living near colleges and universities? Those are locations where adults, not children, gather. Why not require offenders not to live within 2,000 feet of all people? It also seems counterproductive for those offenders who would seek to go to college and better themselves (which is important in decreasing recidivism). Further, treatment facilities are often located in university facilities. I'm curious if any of these Alabama proposals willl actually become law.

H/T: Sentecing Law & Policy.

11th Circuit Issues a Puzzling SORNA Opinion

There has been a lot of federal appellate court action in relation to SORNA lately (I'll be covering the 8th Circuit's notable Howell opinion later today). Normally, the cases go in favor the government. However, when the defendant wins at the district court level, the basis is usually the lack of federal jurisdiction or an Ex Post Facto Clause issue. The 11th Circuit, in a split decision, in U.S. v. Dodge, issued an opinion in favor of the defendant that I can't make much sense of. From the opinion:

After pleading guilty to a violation of 18 U.S.C. § 1470, for transferring obscene material to a minor,1 Matthew Mason Dodge (“Dodge”) appeals from the part of the district court’s judgment that requires him to register as a Tier I Sex Offender under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16911. We reverse. Although Dodge transmitted obscene material to persons he believed to be minors, he did not engage in conduct that constitutes a “sex offense against a minor,” 42 U.S.C. § 16911(7)(I)(emphasis added), as we understand that phrase. Although we do not adopt Dodge’s construction of SORNA, we conclude that we are unable to distinguish Dodge’s behavior from other behavior, involving distributing obscene material, that would support a conviction under 18 U.S.C. § 1470, but would not require Dodge to register as a sex offender. Accordingly, Dodge also cannot be required to register.... Additionally, reading “other criminal offenses” to include federal offenses, such as 18 U.S.C. § 1470, as suggested by the government, would turn the language “State, local, tribal, foreign, or [specified] military offense” into meaningless surplusage thereby further complicating an attempt to provide a correct and coherent interpretation of the provision. For reasons given below, however, we do not need to decide this issue of statutory interpretation because, even if we assume that non-enumerated federal offenses, including violations of 18 U.S.C. § 1470, may qualify as “other criminal offenses,” Dodge still is not required to register.... The government, on the other hand, encourages us to reject a categorical approach here, noting that the language in subsection (7)(I) calls for determining the “conduct” of the defendant in question, not the “conviction,” as was the case in Shepard. Id. Such a non-categorical approach was recently used by the 9th Circuit in United States v. Byum, 539 F.3d 982, 992 (9th Cir. 2008),9 where that Court concluded that, “the best reading of the statutory structure and language is that Congress contemplated a non-categorical approach...." Nonetheless, we do not have to decide whether or not to take a categorical approach to reading the statute. This is because even if we do not adopt a categorical approach requiring all violations of 18 U.S.C. § 1470 to be sex offenses against a minor in order to require registration, we still must be able to articulate a principled statutory basis for requiring registration for some violations of 18 U.S.C. § 1470 but not for others. Here, even if we agree with the government, and examine Dodge’s underlying conduct in this case, we are unable to distinguish Dodge’s conduct from conduct that would also support a conviction under 18 U.S.C. § 1470 but which would not require registration under SORNA because such conduct is not “by its nature a sex offense against a minor,” as required by subsection (7)(I).

I apologize for the long block quote, but I wanted to give a fair sampling of the opinion since I am critical of it. I don't know how the 11th Circuit can say it is not deciding the categorical approach issue if it doesn't evaluate the specifics of the crime to determine if it is a "sex offense against a minor." In Byun (which is the proper spelling according to my records) the 9th Circuit case cited by the 11th Circuit as Byum, the court determined a person convicted of the importation of a person for prostitution should have the registration obligations evaluated on a non-categorical basis. Based upon the facts of that case, the crime was considered to be against a minor because juveniles were involved. In deciding this case, the 11th Circuit seems to have adopted a categorical approach without explicitly stating so.

Even beyond that initial decision, I'm not sure I follow the court's reasoning that the defendant's acts would not be a crime against a minor. Most of the attempted federal sex crimes cases these days involve stings where there is no "real" child involved. Yet, I would be amazed if persons convicted of those crimes were not intended to be subject to the registration requirements of SORNA. I think the dissent has the much better argument in this case:

Importantly, the Ninth Circuit concluded that SORNA permitted a noncategorical approach with regard to the age of the victim as applied to a “specified offense against a minor.” 539 F.3d at 991. In doing so, the court contrasted the language of § 16911(5)(A)(i), which defines a sex offense as having “an element involving a sexual act or sexual contact with another,” with the language of § 16911(5)(A)(ii), which definition of “specified offense against a minor” contains no reference to the crime’s elements. Most critically, one statutory definition of “specified offense against a minor” is “[a]ny conduct that by its nature is a sex offense against a minor.” 42 U.S.C. § 16911(7)(I) (emphasis added). Thus, the court concluded that for SORNA purposes, it is the underlying conduct that matters and not the elements of the conviction statute. Although it noted that the statute creates a “modicum of ambiguity” given the use of the word “convicted” at the outset (as opposed to the term “conduct”), the court determined that the “best reading of the statutory structure and language is that Congress contemplated a non-categorical approach as to the age of the victim in determining whether a particular conviction is for a ‘specified offense against a minor.’” Byun, 539 F.3d at 992. The court also noted that SORNA’s legislative history “fully support[ed] this conclusion.” Id. at 992-93.... Like the Byun circumstances, Dodge’s plea reveals the underlying facts supporting his conviction. Dodge transmitted nude photos of himself, including some of him masturbating, to girls he thought were 13 years old. Dodge also used a web camera to broadcast himself masturbating. In my view, a 34-year-old man using a web camera to broadcast sex acts to a 13-year old girl clearly constitutes “criminal sexual conduct involving a minor” or “conduct that by its nature is a sex offense against a minor.” 5 Thus, the non-categorical approach requires the registration of Dodge’s crime as a “sex offense” under SORNA even if other conduct chargeable under 18 U.S.C. § 1470 would fall outside SORNA’s reach.

This case seems like a good candidate for en banc rehearing. The 11th Circuit needs to take a clearer stance on whether it is taking a categorical approach to crimes under SORNA and it needs to clean up the reasoning of the panel decision.

Alabama Newspaper Calls For Overhaul of Sex Offender Laws

An Alabama newspaper is calling for a revision of the state's sex offender laws. Specifically the editorial calls for legislators to "[r]emove this cruel label from those who do not deserve it [and] [s]eparate the true sex offenders from those who are not a danger to anyone."  From the editorial:

We are tired of tiptoeing around the taboo subject of sex offenders. The media and politicians have pushed this subject at the public for their own selfish agendas so much that the general public is terrified of the words "sex offender."

Not every man labeled sex offender is a child molester, or a predator, or a repeat offender, or even a danger to anyone. Many of these men are actually victims of laws based on fear and ignorance created by media sensation.

Fear and ignorance are a dangerous combination that often produce unjust results. There are a variety of circumstances that can label a man a sex offender, some very minor in comparison to others. In many of these cases, the punishment does not fit the crime.

There is no crueler punishment than labeling someone a sex offender. This is a lifetime sentence.

The attorney general and the Alabama legislators who make the laws are so far removed from the process they have no idea of the consequences of being labeled a sex offender. Marriages are dissolved, children are humiliated and families are destroyed unnecessarily. They cannot have any kind of a normal life because uninformed people are always pointing a finger at them.

Remove this cruel label from those who do not deserve it. Separate the true sex offenders from those who are not a danger to anyone. Sex offender laws need reform.

Around the Web

Gary Glitter, the 70's glam-rocker whose real name is Paul Gadd, "will be on the sex offenders' register for the rest of his life once he returns to Britain [...] after his release from a Vietnamese jail."  Mr. Gadd has spent almost two and a half years in prison for molesting two girls aged 11 and 12.

A lawsuit filed in an Alabama federal court claims that the State's Community Notification Act has "resulted in poor people convicted of sex crimes remaining in prison too long."  According to the suit, this is happening because indigent prisoners cannot provide a valid address where they plan to live after their release.

Tennessee is looking to include sex offenses by juveniles on its public sex offender registry in order to avoid losing federal money.  According to Tennessee Bureau of Investigation spokeswoman Kristin Helm, the agency is going to push the Legislature to change the sex registry law to include offenses by juveniles.  The mandate is part of the AWA's inclusion of juvenile crimes in its mandate on the states.

A provision in the Higher Education Opportunity Act (H.R. 4137) introduced by Congressman Ric Keller (R-FL) makes certain sex offenders "ineligible for Pell Grants, the nation's premier financial aid program for low-income students, starting July 1, 2009." The law was signed into law by President Bush on August 14.  In March, the AP reported that dozens of rapists and child molesters have "taken higher education classes at taxpayer expense while confined to treatment centers." According to the article, "[c]ritics say the new measure will cut off the possibility of higher education for offenders who are trying to rehabilitate themselves."

It is strange when the Supreme Court's inaction is newsworthy.  SCOTUSblog reports that "no action was taken on a plea by the state of Louisiana to reconsider the June 25 decision in Kennedy v. Louisiana, striking down the death penalty for the crime of raping a child." Of course, the Court may act at any time. The next scheduled release of orders will be on September 5th

Sex Toys Headed to the Supreme Court?

That's what Eugene Volokh is thinking about:

Earlier this year, I noted that the Texas ban on dildoes — yes, it expressly mentions "dildo" — was struck down by the U.S. Court of Appeals for the Fifth Circuit (and just in time for Valentine's Day). The law, the court held, violates Lawrence v. Texas right of "adult consensual sexual intimacy in the home."

On this, the Fifth Circuit panel disagreed with the Eleventh Circuit, which upheld a similar Alabama law last year. I noted that there was a solid split, so there's a decent chance that the U.S. Supreme Court will step in to resolve this (though there's of course no guarantee).

Today, the Fifth Circuit denied rehearing en banc, over the dissent of seven judges; six of them sharply disagreed with the panel decision on the merits, and all seven noted the circuit split....

So I'll go out on a limb and predict:

(1) The Supreme Court will agree to hear the case.

(2) The Supreme Court will reverse the panel decision and conclude the statute is constitutional.

(3) The vote will be at least 6-3, because even some of the liberals on the Court — I particularly have in mind Justice Breyer — and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives.

That's quite a detailed prediction for a case that might never result in a cert. grant. I'm inclined to think the Court will dodge the issue because it isn't ready to define the scope of Lawrence v. Texas. There certainly is a circuit split, but the Court doesn't take up every case that comes from a circuit split. I think it will take more than two circuits to get the Court to overcome its natural inclination not to deal with the subject matter at issue.

Dale Carpenter added his thoughts:

I have some of the same reactions as Eugene to the Fifth Circuit's denial of rehearing en banc in the sexual-devices case. The fact that there is now a split between the Fifth Circuit and the Eleventh Circuit on whether a state can ban the commercial promotion of sexual devices (including, without limitation, "dildos" and "artificial vaginas") increases the likelihood the Court will hear the case. Likewise, the fact that seven judges on the Fifth Circuit saw fit to dissent in writing from the denial increases the likelihood cert will be granted. Such a review could be the occasion for some much-needed clarification of Lawrence.

On the other hand, I take more seriously than Eugene the possibility that the Court will simply believe the case is beneath its dignity, or is embarrassing, or does not involve an issue of sufficient importance. Add to that the fact that the circuit split is unlikely to grow since I'm unaware of comparable laws outside the jurisdictions of these two circuit courts (correct me if I'm wrong, I haven't researched the issue). This may simply be an issue for future law school exams.

I agree that it would be nice for the Court to offer some guidance on the scope of the liberties described in Lawrence, but I just do not think it is ready to do that.