Sex Crimes

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.

Justice Department's SMART Case Law Update #27

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 #27:

Doe v. Keathley, 2009 Mo. LEXIS 131 (June 16, 2009)

Petitioners were all convicted of sex offenses prior to any sex offender registration requirement for said convictions.  The court held that 42 U.S.C. §16913(d) applies directly to these state-convicted petitioners (and at least one military-convicted offender) and directly imposes a registration requirement on them.  Because of this direct application of federal law, the court held that there are no State Constitutional concerns, and that the petitioners were required to register.  A previous decision from the Missouri Supreme Court, Doe v. Phillips, 194 S.W.3d 833 (Mo. 2006), had prohibited registration for anyone convicted for conduct prior to the enactment of Missouri’s sex offender registration scheme based on Missouri’s Constitution.
 
Doe v. Massachusetts, 2009 Mass. App. LEXIS 724 (June 5, 2009)
 
Doe was convicted of two sex offenses in 1984 and was incarcerated for a year.  In 2005 he was classified as a level two sex offender based exclusively on those two convictions.  The court held that he was entitled to a hearing as to his level of current dangerousness, so as to determine if he should be required to register as a sex offender.
 
State v. Germane, 2009 R.I. LEXIS 68 (June 2, 2009)
 
In rejecting Germane’s challenges (due process, separation of powers, and ex post facto) to the registration and notification law, the Rhode Island Supreme Court engaged in a lengthy and helpful discussion of the legal issues at hand, including how the state utilizes the STATIC-99.

State v. Durrett, 2009 Wash. App. LEXIS 1285 (June 1, 2009)

Durrett was a homeless sex offender who was required to report weekly to the sheriff’s office for registration purposes.  There were two separate weeks where he failed to register.  He could only be prosecuted for one count of failure to register, as they constituted only one unit of prosecution.
 
White v. Dexter, 2009 U.S. Dist. LEXIS 46360 (May 20, 2009)

Making some factual distinction between this petitioner in this case and the one in Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008) (holding an imposition of a “third-strike” sentence as cruel and unusual punishment for a failure to register conviction), the court denied White’s Habeas petition.

People v. Ranscht, 173 Cal. App. 4th 1369 (May 15, 2009)
 
Ranscht was convicted of one count of sexually penetrating a minor.  Because he was similarly situated to an offender convicted of unlawful sexual intercourse—the only distinguishing factor between the offenses being the nature of the intent which must be proven—it was a denial of equal protection to require him to register as a sex offender.  An ‘unlawful sexual intercourse’ conviction in California makes the requirement to register discretionary, rather than mandatory.
 
State v. Payan, 765 N.W.2d 192 (Neb. 2009)

Nebraska has a procedure by which a person can be deemed to have committed an “aggravated offense”, which requires lifetime registration.  That determination is one that is made by the trial court judge.  The court held that the Court’s determination is sufficient for making a determination regarding registration, as that is civil in nature.  However, relying on the Apprendi case (Apprendi v. N.J., 530 U.S. 466 (2000)), the court held that the determination regarding community notification was punitive in nature and required a jury determination that an offender, in fact, committed an “aggravated offense.”

MO High Court Rules Federal Sex Offender Registration Trumps State

Sentencing Law & Policy has an interesting post discussing a new Missouri Supreme Court ruling, which raises some interesting Tenth Amendment issues. You may read the opinion here. From the Kansas City Star:

Thousands of Missouri sex offenders will have to put their names back on the state registry after a ruling Tuesday by the state Supreme Court.  The offenders — including roughly 600 in Jackson County alone — were wiped from the registry in late June 2006.  The court at the time said the Missouri Constitution didn’t allow for laws to be enforced retroactively, so only offenders convicted after the law took effect in January 1995 had to comply.

But the state judges unanimously ruled Tuesday that sex offenders must obey a federal law that went into effect about a month after that 2006 ruling. The federal Sex Offender Registration and Notification Act requires all offenders, regardless of when they were convicted, to register.  The federal law “imposes an independent obligation requiring respondents to register as sex offenders in Missouri,” the judges wrote.

Law enforcement authorities across the state, including Attorney General Chris Koster, applauded the ruling. Koster said the registry was designed to protect the community from offenders and the “court’s ruling supports that goal.”  Former Jackson County Sheriff Tom Phillips, a defendant in a lawsuit filed by sex offenders, said the intent of the law was for all offenders to register, not just some.  “I think that’s what people want,” Phillips said. “Hopefully now that will go into place. … If the laws weren’t clear as to who should and who shouldn’t register, this should clear that up.”

The court ruled Tuesday in the case of 10 convicted Jackson County sex offenders who argued that they were not required to register because of the Missouri Constitution’s protection against retrospective laws.

I was baffled by this case when it was at the intermediate appellate level and I'm even more confused now that the Missouri Supreme Court has signed off on the bizarre theory. Basically, a federal law creates federal penalties for a state law violation that can be prosecuted in state courts. That's assuming the court's statutory interpretation is correct (which I think is clearly wrong). Even accepting its interpretation, the result just seems unprecedented. I would be shocked if any other state high court follows Missouri's lead.

Missouri Senate Votes to Apply Registry Law Retroactively

The Missouri Senate has voted to apply its sex offender registry law retroactively. From The Columbia Daily Tribune:

The [Missouri] Supreme Court has ruled that the registry law does not apply to those people because the law took effect in 1995 and the state Constitution prohibits laws from being applied retrospectively.

Senators gave initial approval to a proposed constitutional change that would carve out an exemption for the registry law. The change would also retrospectively apply a prohibition on sex offenders living near schools and a requirement of felons to submit DNA samples.

The proposal still needs another vote before moving to the House. If passed by that chamber, it would appear on the ballot.

Eighth Circuit Allows Missouri Restrictions to be Enforced on Halloween

The Eighth Circuit has issued a stay to the preliminary injunction that I blogged about here. From a news account about the stay:

Missouri Attorney General Jay Nixon’s office says a court order means a new state law aimed at keeping children away from sex offenders on Halloween night can be enforced in its entirety.

That means registered sex offenders in the state are required to remain inside their homes from 5 p.m. to 10:30 p.m. Friday unless they need to work or have a medical emergency. They must keep their outside lights off and post a sign telling trick-or-treaters no candy is available. They must avoid Halloween-related contact with children.

A federal judge said earlier this week that two of four provisions in the law could not be enforced this Halloween.

The U.S. Court of Appeals for the Eighth Circuit today issued a one-sentence stay, sought by Gov. Matt Blunt and Nixon.

The ACLU of Eastern Missouri says it is continuing legal action on behalf of four unnamed sex offenders to have the law taken off the books.

Missouri Federal Court Bars Enforcement of State Efforts to Restrict Sex Offenders on Halloween

There has been a lot happening around the blogosphere related to Halloween crackdowns on sex offenders. Perhaps most notably, a federal district court in Missouri has issued a preliminary injunction barring some efforts in that state. From the order:

In their complaint, the plaintiffs claim that the statute violates the Due Process Clause of the Fourteenth Amendment in that the statute fails to provide fair notice of the conduct it proscribes. If the plaintiffs succeed on the merits of the due process claim, the statute will be unenforceable not only as to the plaintiffs but as to all persons required to register as sexual offenders. The Court believes it is appropriate at the preliminary injunctive stage to focus on the actions of the defendants with respect to enforcement of the statute on October 31, 2008, as opposed to limiting the requested relief to the plaintiffs.

Constitutional Law Prof, Above the Law, Althouse, TalkLeft, SexOffenderResearch, and Volokh Conspiracy are also covering the case. SexOffenderResearch also has a lot of other posts about ongoing crackdowns in other states.

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.

It's That Time of Year Again, Part II

Law enforcement officials in Florida have announced the launch of "a Halloween-themed radio public service announcement" designed to get people to sign up for an e-mail system, which will send out alerts when sex offenders move in. From the Naples Daily News:

The 15 and 30-second public service announcements encourage families to visit [the website] to subscribe to receive e-mail alert notifications when registered sexual offenders or predators move into neighborhoods.

[The Florida Department of Law Enforcement] also encourages citizens to use the Neighborhood Search feature prior to signing up for alerts to identify registered sexual offenders and predators currently living in neighborhoods where their children will be trick or treating or congregating.

The Florida Offender Alert System is offered through FDLE’s Web site and on many local law enforcement agencies’ Web sites throughout the state. Citizens are encouraged to visit their local law enforcement agency’s Web site first to register for alerts and access local safety information. More than 43,000 individuals have signed up for this service since its launch in March. And more than 360,000 emails have been sent notifying citizens about address changes.

The Neighborhood Search feature on FDLE’s Web site allows users to enter any Florida address and obtain a list of all registered sex offenders and predators living within a one quarter to five mile radius of the address entered by the user. These services are offered statewide at no charge.

FDLE developed the notification service at the direction of the Florida Legislature as part of the state’s compliance with the federal Adam Walsh Act. Citizens may select an unlimited number of addresses and/or offenders and predators to track, and can update their selections at any time. The alert system will send e-mail notifications within 24 to 48 hours of an address change to the state’s registry. Currently, there are more than 48,000 registered sexual offenders and predators in the Florida Sex Offender Registry.

Meanwhile, four Missouri sex offenders have enlisted the ACLU to challenge a new state law which restricts Halloween activities of the offenders. We have previously discussed similar restrictions.  From The Missourian:

Four sex offenders in Missouri are suing over a new state law that places Halloween night restrictions on them.

The law requires that sex offenders 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 St. Louis Post-Dispatch reported Wednesday that the ACLU of Eastern Missouri filed a lawsuit on the offenders' behalf in federal court on Friday. The suit claims the provisions are too vague to enforce and improperly add punishment to sentences already served. The plaintiffs' names are not used in the lawsuit.

The Halloween provisions, part of a broader bill signed into law this summer, say convicted sex offenders must avoid all Halloween-related contact with children by staying inside their homes from 5 to 10:30 p.m. "unless there is just cause to leave,'' such as the need to go to a job or an emergency.

They also must keep their outside residential lights turned off on Halloween night, and post a sign that says "no candy or treats at this residence.'' A violation is a misdemeanor, punishable by up to one year in jail.

The ACLU legal director, Tony Rothert, said offenders don't know if they're able to dress their own children or grandchildren in their Halloween costumes, wondering if that could be considered Halloween-related contact.

Another concern is that when sex offenders post signs about not having candy, they could become targets themselves. "There's already pranks on Halloween,'' Rothert said. "If someone wants to harass you and cause you problems that night, you can't even turn your lights on.''

The Halloween provisions were inserted at the request of Sen. Brad Lager, R-Maryville, in a bill tightening restrictions on sex offenders. Lager said Tuesday that a constituent suggested it.

Sen. John Loudon, R-Chesterfield, sponsored the bill, and said following the law is simple. "If they have children or grandchildren, then the one spouse takes them out, or you go to a party, or you go to something neutral. But we don't want predators opening their homes on Halloween.''

He said Missouri previously hadn't had a law preventing a "brazen predator'' from handing out candy to children on Halloween.

"I think life goes on without Halloween in your own home,'' he said. "There are lots of other opportunities for people. I think it's kind of silly that people are raising the constitutional right of people to hand out candy on Halloween.''

A spokesman for Attorney General Jay Nixon vowed to defend the law.

Gov. Matt Blunt's spokeswoman, Jessica Robinson, said, "We're not surprised that they're now suing the governor to make it easier to victimize children.''

Around the Web

A three judge Nevada Supreme Court panel has ruled that a former sex offender who is serving time for a non-sexual offense does not need a psychological certification before getting parole.  Typically, before Nevada sex  offenders are released, a panel must certify they are not a serious danger to commit another sex-related offense.  The court ruled 2-1 in favor of the man who was first convicted of attempted sexual assault in 1996.  The decision is available here.

A federal judge in Minnesota has rebuked the U.S. Attorney's office for seeking civil commitment of a sex offender in 2006 "despite assessments by federal prison system authorities that he was not a candidate for civil commitment and would be manageable in a halfway house."   U.S. District Judge Paul Magnuson noted in his order that an attempt by the federal prosecutors to have the sex offender committed was "inexplicable" and their rationale for continuing to try to prevent his release "nothing short of remarkable."  The prosecutor had blocked the man's scheduled release in October 2006 by petitioning the court to have him declared a sexually dangerous person under the Adam Walsh Child Protection and Safety Act, which had been passed just three months earlier.  The article notes that Judge Magnuson's ruling was "the fifth nationally by district judges on the law; three ruled it valid, and two found it unconstitutional," and that "[a]n Appeals Court has yet to decide the issue."

CrimProf Blog has a post discussing the case in which a Kansan judge prohibited an alleged rape victim from uttering the words “rape” and "sexual assault" in front of a jury.  The article mentions a similar order in Missouri in a separate rape trial.  Despite the restriction, the jury found the defendant guilt of forcible rape and forcible sodomy.  We previously mentioned the Kansan judge's order when a federal appeals court dismissed the alleged victim's suit.  The article notes that the alleged victim's attorney plans to petition the U.S. Supreme Court. This is a really interesting trend (if it is actually a "trend"). I'm still disturbed by the idea that judges can't tell that the word "rape" is not simply a legal conclusion - it is the term victims regularly use to describe what happened. Other terms don't capture the experience in the same manner. And jurors are probably more confused by the victim's failure to use the word "rape." If judges are really concerned, I'm not sure why a simple jury instruction wouldn't suffice. 

As mentioned previously, the U.S. Court of Appeals for the Third Circuit has held that a district court judge was within his authority when he said probation officers were allowed to search a Pennsylvania man's workplace upon his release from prison on child pornography charges.  The searches could not be warrantless however, they must be conducted "at a reasonable time and in a reasonable manner based upon a reasonable suspicion of contraband or evidence of a violation of a condition of release."  The man argued that the warrantless search was not authorized by law.  The Court of Appeals noted that the man waived most of his appeal rights by pleading guilty and therefore must show that a “miscarriage of justice” would occur.  The Third Circuit found that no such miscarriage would occur. The unpublished opinion is available here.

There is a very good article on sex offender law challenges in the National Law Journal. I was interviewed for the piece and I think the author did a great job. Unfortunately, the article is behind a subscription wall. If you have a NLJ account, you can read the article here.

Will the Kennedy Court Take Notice?

One of the trickier parts of the "evolving standards of decency" analysis in Kennedy v. Louisiana concerns what should be made of those states that have considered, but not adopted capital child rape statutes. If Orin Kerr is right that Missouri's hypothetical adoption of such a statute could inform court opinion, what should the court make of two states, Alabama and Missouri, failing to pass such statutes. First, here is the story from Alabama (via Capital Defense Weekly):

The Alabama Legislature finished its annual session at midnight on May 19, 2008. Among the bills dying at that hour was H.B. 456, sponsored by Rep. Jeremy Oden (R.-Vinemont). The bill would have made repeat offenses of first degree rape, sodomy, or sexual abuse a capital crime where the victim was under the age of 12. The bill was notable for knotty technical deficiencies (e.g., rape for pecuniary gain as an aggravator; victim under 12 as both the capital-eligible circumstance and an aggravator; no amendment of the weighing and other procedural sections), and was referred to the Judiciary Committee, from whence it never emerged.

And Capital Defense Weekly also has the story of the legislative failure in Missouri. The Missouri outcome presents an extra problem because the Justices seemed to take for granted that the signatories of the amicus brief by states would be inclined to pass laws similar to Louisiana. As a result, those amicus states would be added to the total of states that already have such laws. I was concerned because a state's  governor and some legislators do not have the power to pass such legislation alone. Also, there can be political motives for supporting such laws without actually passing them. What will the Court do with this new information? Will it figure in the analysis at all?