Sex Crimes

KY AG Asks SCOTUS To Hear Residency Case

After losing in the state Supreme Court, Kentucky Attorney General Jack Conway has asked the U.S. Supreme Court to decide whether Kentucky's sex offender residency restrictions may be applied retroactively. You may view the petition for a writ of certiorari here. In an October 2009 opinion, the state Supreme Court ruled 5-2 that the law could not be applied retroactively without running afoul of state and federal constitutional prohibitions on ex post facto laws. You may view that opinion here. The decision is Commonwealth v. Baker, 295 S.W.3d 437 (Ky. 2009). From the Courier-Journal:

The Kentucky Supreme Court ruled 5-2 in October that the statute was improperly imposed on people convicted before the law went into effect because both the U.S. and Kentucky constitutions prohibit laws that impose or increase punishment on criminal acts committed before the law's enactment.

Conway's office filed a petition Wednesday asking the U.S. Supreme Court to hear the case. The court receives about 10,000 requests a year to review cases and decides only about 80. But the question of the retroactive application of sex-offender laws has arisen in several states, making it more likely that the high court will accept the case.

The 2006 statute subjected all convicted sex offenders to the residency requirements, while the old law applied only to about 1,200 offenders who were on probation or parole.

The Courier-Journal has reported that there were about 5,800 registered sex offenders when the law went into effect, although some of them may no longer be required to register.

Victims' advocates said they were disappointed with the state Supreme Court's ruling.

But experts said research has shown that sex-offender registries and residency restrictions don't deter future crimes. And some criminal justice officials said Kentucky's law makes it so difficult for some offenders to find a place to live that they stop reporting their addresses to authorities.

KY AG Asks SCOTUS To Stay Residency Decision

After the Kentucky Supreme Court denied a stay in a challenge to the retroactive application of the state's residency restrictions, the state Attorney General has filed a motion in the U.S. Supreme Court to stay an earlier decision. You may read the motion here. From a press release:

Attorney General Jack Conway today filed a motion with the United States Supreme Court asking it to stay the recent ruling by the Kentucky Supreme Court that lifts the residency restrictions for all registered sex offenders who committed their crimes before July 12, 2006 – meaning more than 5,500 sex offenders could live next to schools and daycares. 

General Conway and his Office of Criminal Appeals are asking the U.S. Supreme Court to stay the state ruling until it decides whether or not to review Kentucky’s case.  The Office of the Attorney General has until December 30, 2009 to file a certiorari motion with the U.S. Supreme Court. 

Attorney General Conway will file the certiorari motion because Kentucky’s law is similar to laws in several other states that have had conflicting rulings by state courts.  He also has the statutory obligation to defend laws passed by the Kentucky General Assembly.

“I understand there are constitutional questions regarding retroactivity, but there are also public safety implications for families in keeping sex offenders away from where children congregate.  Only the U.S. Supreme Court can weigh these issues and provide guidance to states,” said Attorney General Conway. 

Attorney General Conway’s Office of Criminal Appeals filed a motion on October 21, 2009 with the Kentucky Supreme Court requesting that it suspend implementation of the ruling until the U.S. Supreme Court determines whether or not it will review the Kentucky case.  The Kentucky Supreme Court denied the motion.

Given that SCOTUS showed no inclination to take prior cases at the federal or state level, I'd be surprised to see them intervene here. However, with Comstock and Carr on the docket this term, they could resolve the major disputes to the various sex offender laws all at once if they took the Kentucky case.

KY High Court Denies Stay In Residency Restrictions Challenge

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:

Kentucky Attorney General Jack Conway asked that the ruling be stayed, but that request was rejected in a brief order from the court on Monday.

Allison Martin, a spokeswoman for Conway's office, said the office now will ask the U.S. Supreme Court for a stay to review the Kentucky high court's ruling. She said the office has until Dec. 30 to file its request with the nation's high court.

The Kentucky Department of Corrections released a statement saying that because Monday's ruling by the Kentucky Supreme Court is a final order, probation and parole officers are being notified that sex offenders who committed their crimes prior to July 12, 2006, are no longer subject to the residency restrictions of the 2006 law.

The 2006 law subjected all convicted sex offenders to residency restrictions, while a prior law applied restrictions to offenders who were on probation or parole. It also increased the minimum distance that offenders must live from schools and day care centers, and added playgrounds to the list.

KY Supreme Court Strikes Down Retroactive Application of Residency Restrictions

The Kentucky Supreme Court in Kentucky v. Baker, (opinion available here) has found the retroactive application of the sex offender residency restriction to be unconstitutional. From the Lexington Herald-Leader:

A state law limiting where registered sex offenders may live cannot apply to those who committed offenses before July 12, 2006, the day the law was implemented, the Kentucky Supreme Court ruled Thursday.

The law prohibits sex offenders from living within 1,000 feet of playgrounds, day-care centers and schools, and the law changed how the distance is measured.

The court, in a 5-2 decision, said the law is punitive and violates the ex post facto clause, or retroactive law, in the U.S. Constitution, which prohibits states from passing laws that increase punishment for old crimes. The restrictions will still apply to anyone convicted after July 12, 2006.

As of Thursday morning, there were 280 sex offenders in Fayette County, and six were not in compliance, according to the Fayette County Sheriff's Office. Sheriff Kathy Witt said some addresses are visited every day. Those who are incompliant are usually not living at the addresses listed for the individuals.

H/T: Sentencing Law & Policy.

Justice Department's SMART Case Law Update #26

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 #26:

Delaware v. Fletcher, 2009 Del. LEXIS 250 (May 27, 2009)

The two petitioners in this consolidated case had been ordered to register based on juvenile adjudications for sex offenses.  Each successfully completed their periods of probation, and asked for an expungement of their convictions, and a termination of their juvenile registration requirement.  The Court held that their convictions could be expunged even though they had been required to register as sex offenders, and that once those convictions were expunged, they were no longer required to maintain their sex offender registration.
 
Tobar v. Kentucky, 2009 Ky. LEXIS 81 (May 21, 2009)
 
Petitioner had properly registered as a sex offender through a series of moves, but failed to notify Kentucky when he left a shelter and became homeless.  He was properly convicted of failure to comply with his sex offender registration requirements.
 
Doe v. California Department of Justice, 173 Cal. App. 4th 1095 (May 7, 2009)
 
Petitioners had successfully had their names removed from California’s public sex offender registry website via a special statutory procedure in 2005.  In 2006, the law was changed to require that they be posted on that public web site.  Their civil suit claiming equitable estoppel and ex post facto violations was dismissed.
 
U.S. v. Pomani, 2009 U.S. Dist. 44503 (D. S.D. March 11, 2009)

Pomani was adjudicated delinquent in federal court of an offense which occurred on tribal lands, namely, an offense similar to abusive sexual conduct (per the opinion, 18 U.S.C. 2241(c)).  The court held that juveniles adjudicated of this offense are required to register by SORNA, failing to take in to account that SORNA’s Final guidelines removed the registration Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office U.S. Department of Justice/Office of Justice Programs requirement for juveniles adjudicated delinquent of 2241(c).  Having held that Pomani was required to register, the court affirmed his conviction.  
 
Miller v. McCormick, 605 F. Supp.2d 296 (D. Me. 2009)
 
Where petitioner had been admitted to the section 8 home ownership program, he could not be thereafter terminated because he was a lifetime registered sex offender.  There is a ban in place for admission to the program for such offenders, but should an offender somehow avoid the ban, they cannot be terminated.  

Justice Department's SMART Case Law Update #25

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 #25:

Doe v. Department of Public Safety, 2009 Md. App. LEXIS 56 (May 12, 2009)

Doe challenged the conclusive presumption of dangerousness (and the attendant registration and notification requirements for a “sexually violent offender”) that flowed from a conviction for rape.  This presumption was permissible.  In addition, his privacy, due process, and equal protection challenges were rejected.
 
Wallace v. State, 2009 Ind. LEXIS 401 (April 30, 2009) (link)
 
Relying in part on the decision in Doe v. State, 189 P.3d 999 (Alaska 2008), the Indiana Supreme Court held that the state’s sex offender registration and notification scheme was punitive under the Mendoza-Martinez factors and, as such, application of its requirements to an offender convicted and sentenced prior to the initial passage of the law was unconstitutional.
 
Jensen v. State, 2009 Ind. LEXIS 400 (April 30, 2009) (link)
 
Where petitioner was convicted and sentenced in 2001, and the only changes to the sex
offender registration and notification scheme since that time could fairly be characterized as
‘civil and regulatory’ under the Mendoza-Martinez factors, retroactive application of those
amended provisions was not a violation of the Ex Post Facto clause.
 
Commonwealth v. McBride, 2009 Ky. LEXIS 52 (April 23, 2009)

McBride was convicted of a sex offense in Tennessee and registered as a sex offender
there.  He subsequently moved to Kentucky, and failed to register as a sex offender as required
by Kentucky law.  Even though he was not specifically notified of his registration obligations in
Kentucky, the Court held that failure to register was a strict liability offense, and that he had an
absolute duty to register as a sex offender once he became a resident of Kentucky.

Halloween Sex Offender Restrictions Roundup

As Halloween approaches, law enforcement officials are advising parents to check state sex offender registries before letting their children go Trick-or-Treating.  Sex offenders in Missouri are challenging the further restrictions related to Halloween activities. Maryland sex offenders have received letters from the state's Probation and Parole Division telling them to stay inside on Halloween from 6 P.M. until the next morning, as well as putting 'No Candy' signs on their doors. Officials in Idaho, Kentucky, New York, and Texas have begun taking similar precautions.  The Washington Post has more.  From the Associated Press:

[Texan authorities] have arrested 24 sex-offense suspects during a two-day sweep, part of a national crackdown on sex offenders before Halloween.

The majority of arrests this week were of sex offenders who violated their registration requirements. The Lone Star Fugitive Task Force planned the roundup specifically for Halloween, officials said.

"There's a lot of kids that are going to be on the streets pretty soon," said Tom Smith, the supervisory deputy U.S. marshal, who headed the sweep.

Such sweeps are part of a nationwide law enforcement trend targeting sex-offense suspects or registered sex offenders on or before Halloween and more severely restricting their activities that night.

In Missouri, four sex offenders are suing over a new state law that requires them to avoid all Halloween-related contact with children, remain inside their homes and post a sign saying they have no candy to keep trick-or-treaters away. The ACLU of Eastern Missouri filed suit on the offenders' behalf in federal court Wednesday, arguing the provisions are too vague to enforce.

Maryland has an almost identical law and last week sent 1,200 violent and child sex-offenders a paper sign in the mail that read "No candy at this residence," which they must post on their front doors or possibly face a parole violation.

South Carolina has a 5 p.m. Halloween curfew for sex offenders on probation or parole. They cannot give out candy or have their outdoor lights on.

In New York, the Division of Parole requires registered sex offenders to stay home or in designated locations and makes spot checks to enforce the rule. Sex offenders also can't answer the door to trick-or-treaters, have Halloween candy in their possession or dress in costume.

Texas requires registered sex offenders to turn off their porch lights and prohibits them to have any exterior decorations between 5 p.m. and 5 a.m., with parole, probation and police officers checking to see if they comply.

Those opposed to the crackdowns say they unnecessarily scapegoat sex offenders who already are complying with the conditions of their parole.

Also, check out these two great posts by Grits for Breakfast about Halloween-time crackdowns.

Around the Web

Prosecutors in Utah have charged a 15-year-old boy with a felony in a nude cell phone picture case.  He was charged with one felony count of dealing material harmful to a minor, and three misdemeanor lewdness counts.  We have previously reported the growing trend among teenagers who trade nude photos of themselves over cell phones.

Sentencing Law and Policy and Grits for Breakfast mention Grits's call for "more law blawggers need to weigh in on West Texas polygamy case."  The New York Times has more information on the hearings regarding the welfare of more than 400 children seized from the Texan compound.  According to the article, the hearing may be "one of the largest child custody proceedings in United States history." I've been swamped with Kennedy, so I'm a bit behind on the story. I also admit that I'm still waiting for the sex crime legal issues to emerge.  So far, I've been interested in Grits's criminal procedure issues, but I haven't seen any interesting substantive criminal law issues yet.  But I do hope to post more about the story next week.

Crime and Consequences reports that Kentucky will make it a felony to sexually abuse a child up to 16 years of age. "The law extends the victim's age to 18 if the abuser is an authority figure [and] allows victims to report the crime within five years of their 18th birthday." Crime and Consequences also reports that a California animal shelter supervisor has been convicted of sexually assaulting six female inmates assigned to the shelter as part of their sentence.

CNN reports that the California social services agency is trying to "shut down nine homes used for child day care and foster care after an audit found registered sex offenders living there," in violation of California law.  The revelation came after state auditors compared the addresses of the facilities with the state's database of registered sex offenders.

Around the Web

The ABA Journal reports that one in 100 adults in the U.S. is serving time in prison or jail right now.  According to 2006 Justice Department figures, the numbers are even higher for minority groups: 1 in 36 Hispanic adults and 1 in 15 African-American adults are behind bars.  The Associated Press also has an article available here.  I would guess that most Americans believe that most of those incarcerated are sex offenders, murderers, and armed robbers.  However, a vast majority of that imprisoned population is non-violent offenders.

Sentencing Law and Policy has a post discussing Kentucky bill (previously mentioned here) that would “require the forfeiture of all real and personal property used in or acquired as a result of certain sexual offenses against minors.”  If passed, the law would allow for "the seizure of property used by convicted sex offenders, including their cars, money, computers, money, homes — any personal belongings they may have used during the sex crime against a minor."  As Berman discusses, it will be interesting to see if the recent trouble residency restrictions have experienced with takings issues will carryover to these new provisions.

U.S. News & World Report has an article discussing a new theory that links spanking to deviant sexual behavior.  The article mentions that a meta-analysis of spanking studies found 93 percent agreement among studies that spanking can lead to such problems as "delinquent and anti-social behavior in childhood along with aggression, criminal and anti-social behavior and spousal or child abuse as an adult."

A teenage boy in Wisconsin was ordered to register as a sex offender after an appeals court upheld a lower court’s decision to deny the boy’s request to delay such registration.  According to court records, the boy was prosecuted for sexual activity that took place within a boyfriend-girlfriend relationship when he was 16 and the girl was 14.  The teen will be on the registry for 15 years after his supervision is completed.

FourthAmendment.com has an informative post about the lawsuit against NBC concerning "To Catch A Predator", which we previously mentioned here.

Around the Web

The Wall Street Journal's Law Blog is reporting that NBC is being sued following an incident produced for the “To Catch a Predator” series.  A Texas prosecutor contacted a decoy who had been posing as a 13 year-old boy, which allowed police to obtain search and arrest warrants for the man, and went to his home, with Chris Hansen and camera crew in tow.  Once the police entered the house, they saw the man enter and say, “I’m not going to hurt anyone.” He then shot himself with a handgun.  On camera, a police officer reported this to Hansen, and then allegedly said, “that’ll make good TV.”  The man's sister is now suing NBC is federal court for $100 million, claiming, among other things, intentional infliction of emotional distress. More information is available here.

Crime and Consequences reports that a new Kentucky bill will authorize law enforcement to seize property from convicted sex offenders. Confiscated houses, money, and personal belongings will be sold and the proceeds used to defray the cost of prosecuting sex offenders such as expert witnesses and forensics.

An Ohio judge has agreed to put the state's sex offender law on hold in 11 cases until a federal court judge addresses constitutional challenges to the new law.  Ohio's new Adam Walsh Act-complaint law is currently being challenged in U.S. District Court for the Northern of Ohio.

How Appealing mentions an article by the Associated Press which discusses the challenges police and prosecutors face in determining whether digital photos depicting child pornography are real.  In 2002, the U.S. Supreme Court struck down a ban on computer-generated child pornography.