Sex Crimes

NJ Parole Board Finds Sex Offender Polygraph Testing Effective

The New Jersey Star-Ledger is reporting that the state parole board has released an internal study claiming that the use of polygraphs on paroled sex offenders has been effective in detecting and preventing parole violations. According to the article, almost all of the state’s 5,600 supervised sex offenders must submit to at least one polygraph test every year. You may read the actual report here. From the article:

The parole board started using the examinations two years ago, and an internal study being released today says they’ve been effective in detecting and preventing parole violations even though budget restrictions have prevented the tests from being widely implemented.

Out of 236 paroled sex offenders who took polygraph tests, 86 had their supervision plans changed afterward. That includes 34 offenders who received more stringent supervision, such as out-of-state traveling restrictions or electronic monitoring.

Only 400 tests have been conducted so far, parole board spokesman Neal Buccino said. The state has five polygraph machines, and 11 officers have completed nine weeks of training in Philadelphia. The training and equipment was funded by a $50,000 federal grant and $16,667 in state money.

During polygraph tests, the sex offender sits alone in a room with the officer. Sensors on the chair and straps across the chest and stomach detect fidgeting, and fingertip sensors monitor sweat. A band around the subject’s upper arm tracks blood pressure.

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.

NJ Supreme Court Hears Residency Challenge

Today, the New Jersey Supreme Court heard a challenge to residency restrictions enacted by various cities within the state.  Those laws have been in a legal limbo ever since an appellate court ruled that such restrictions must be enacted only by state legislators. Sentencing Law & Policy has more. From the The Newark Star-Ledger:

In New Jersey, 118 New Jersey towns want to control where convicted sex offenders can live within their borders. But it will be up to the state's highest court to decide whether they have the power to do that.

The Supreme Court heard arguments today on whether Megan's Law already does what towns -- such as Galloway and Cherry Hill -- have tried to accomplish through local laws that prohibit sex offenders from living near schools, parks, and daycare centers.

The towns believe that sex offenders are more tempted to commit a crime if they live close to children, but critics believe that further disrupting former sex offenders' lives makes it harder for them to recover.

Today, Justice Barry Albin warned that these municipal ordinances might exclude sex offenders completely from certain towns -- which is against the law.

Sex Offender Laws in New Jersey & New York Both Ineffective

A recent study (which I cite in my new article) published in Psychology, Public Policy, and Law claims that New York's Sex Offender Registration act had no effect. According to the study, over 95% of all sex offenses (as determined by arrests) are committed by first time sex offenders. From the abstract:

Despite the fact that the federal and many state governments have enacted registration and community notification laws as a means to better protect communities from sexual offending, limited empirical research has been conducted to examine the impact of such legislation on public safety. Therefore, utilizing time-series analyses, this study examined differences in sexual offense arrest rates before and after the enactment of New York State's Sex Offender Registration Act. Results provide no support for the effectiveness of registration and community notification laws in reducing sexual offending by: (a) rapists, (b) child molesters, (c) sexual recidivists, or (d) first-time sex offenders. Analyses also showed that over 95% of all sexual offense arrests were committed by first-time sex offenders, casting doubt on the ability of laws that target repeat offenders to meaningfully reduce sexual offending.

A Department of Justice funded study came to a similar conclusion about New Jersey's Megan's Law. That study is entitled Megan's Law: Assessing the Practical and Monetary Efficacy and may be viewed here. The Associated Press has more. From the Summary:

The research that follows concerns the various impacts of community notification and registration laws (Megan's Law) in New Jersey. Although this report includes a variety of interesting findings and many ideas that will be explored upon post grant period, this research was embarked upon, in general, to investigate: 1) the effect of Megan's Law on the overall rate of sexual offending over time; 2) its specific deterrence effect on re-offending, including the level of general and sexual offense recidivism, the nature of sexual re-offenses, and time to first re-arrest for sexual and non-sexual re-offenses (i.e., community tenure); and 3) the costs of implementation and annual expenditures of Megan's Law. These three primary foci were investigated using three different methodologies and samples. Phase One was a 21-year (10 years prior and 10 years after implementation, and the year of implementation) trend study of sex offenses in each of New Jersey's counties and of the state as a whole. In Phase Two, data on 550 sexual offenders released during the years 1990 to 2000 were collected, and outcomes of interest were analyzed. Finally, Phase Three collected implementation and ongoing costs of administering Megan's Law.

New York Court Invalidates Residency Restrictions

Thanks to the many helpful readers who forwarded me the news about this case. Following the lead of its neighbor, New Jersey, a New York has ruled, in State v. Oberlander, that a local residency restriction ordinance is inconsistent with the state's registration scheme. From the opinion: 

“Under [the preemption] doctrine, even in the absence of an express conflict, a local law which regulates subject matter in a field which has been preempted by State legislation is deemed inconsistent with the ‘State's transcendent interest.’” Ba Mar, Inc. v. County of Rockland, 164 A.D.2d 605 (2nd Dep’t 1991)(quoting Albany Area Builder’s Assoc. v. Town of Guilderland, 74 N.Y.2d 372 (1989)). “On the other hand, the mere fact that both the State and local governments seek to regulate the same subject matter does not, in and of itself, render the local legislation invalid on preemption grounds.... In nearly factually identical circumstances, a New Jersey Appellate Court struck down local legislation imposing housing restrictions of sex offenders holding that State law preempted local legislation (preempting more than 100 local sex offender ordinances). G.H. v. Township of Galloway, 401 N.J. Super. 392 (App. Div. 2008). In doing so, that Court held that New Jersey’s version of Megan’s Law constituted a comprehensive legislative scheme enacted to protect citizens from sex offenders.... As the State has expressed its intention to preempt the area, and, the ordinance conflicts with State law, Local Law No. 1 of 2007 is invalid. A Violation of Probation based upon such law cannot be maintained.

As was the case in New Jersey, the state could cure the conflict by either expressly allowing localties to implement residency restrictions or by adopting a statewide residency restriction law. f/k/a has more on the decision: 

There are 80 similar laws across the state that could be affected if challenged under the preemption doctrine. (See our prior post from October 2007, discussing a lawsuit challenging the Albany County sex offender law under preemption doctrine). Rules passed by counties and towns often cause ripple effects. Ulster County is currently considering its own ex offender residence restrictions, after a sex offender moved there from Rockland County (see, Sex Offender Issues weblog, Jan. 15, 2009). Ulster County Legislator Glenn Noonan told the The Daily Freeman that: “I’m trying to get Ulster County on board with several other counties who have passed similar legislation. Then it forces the (state) Assembly to get off their butts and do something about this on a state level.” More thoughtful minds will hopefully remind our state leaders that our current State laws and policy work well, and that there is no reason to believe banning offenders from particular zones protects our children. (see, e.g., our post “Sunday papers question sex offender laws“)

It will be interested to see if the domino effect of court rulings that occurred in New Jersey also happens in New York.

Around the Web

Crime and Consequences points us to a Poughkeepsie Journal report that "a convicted sex offender who violated the terms of probation less than an hour after he left the courtroom in July received 1 1/2 to five years prison sentence today ." The man had been placed on probation after he admitted he had failed to notify police he had changed his address, as required by state law for most sex offenders. The original story may be viewed here.

Last week, the Iowa Supreme Court reversed a man's conviction for indecent exposure, "because neither of the female victims saw Ronnie James Isaac's genitals." FindLaw has more.  You may view the opinion here. H/T: How Appealing.

Two federal district judges in Montana have "reached opposite conclusions about the constitutionality of a federal law that requires sex offenders to register with local authorities when they move to another state."  District Judge Richard Cebull ruled last week that the Adam Walsh Act and the included Sex Offender Registration and Notification Act (SORNA) are constitutional, but District Judge Donald Molloy  ruled in June that the act didn't pass constitutional muster.  According to the article, "[t]he contradictory rulings mean the U.S. 9th Circuit Court will have to resolve the matter." The big question is whether a Circuit split will eventually emerge to get the Supreme Court's attention.

A New Jersey lawmaker, Assemblywoman Linda Greenstein, wants to require sex offenders "to divulge their personal e-mail addresses and share their passwords."  The new restrictions would allow parole officers to monitor convicted sex offenders' e-mail use.

A convicted Nevada sex offender will be tried in October "on charges he attempted to light the Nevada Supreme Court Building on fire in June to protest a change to sex offender registry laws."  The man pled not guilty to fourth-degree arson last week.  According to court records, the man told investigators he was "upset about changes made during the 2007 Legislative session in the sex offender tier system." The fire caused minor damage.

Cleric-Penitent Privilege in Child Molestation Case

EvidenceProf had a post about an interesting ruling in a New Jersey case. The court held that the cleric-penitent privilege did not apply to the facts at hand:

In its opinion yesterday in State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters.  I agree with the court's conclusion but not its reasoning....

  I think that the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential.  Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege?  It seems to me that the court placed a burden on the defendant that does not exist under the law.

With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent.  In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson.  If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.

There is, however, an exception to this general rule, and that is why the court's third point was correct.  When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995).  And that's exactly what happened in J.G..  Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.

Even though I've included a lengthy excerpt, there is much more to Miller's post. I recommend checking the whole thing out for a detailed discussion of the scope of the privilege.

New York Times Editorial about Registration Laws

Somewhat out of the blue (although ostensibly related to a recent court decision in New Jersey), the New York Times published an editorial arguing for reform to Megan's Laws.  From the unsigned editorial:

One danger has always been vigilantism. Child molesters living peaceably in a community after serving their time — and even some people mistaken for child molesters — have been beaten up or fired upon.

A disturbing new development is the proliferation of local ordinances that go beyond the reporting requirements of legislation like Megan’s Law by restricting where sex offenders may live. In some New Jersey towns, offenders cannot live within 2,500 feet of a school or playground. Often, the banned areas are so large as to effectively prohibit a sex offender from living anywhere in town.

These bans can do more harm than good. They will not deter a determined predator. Many law enforcement officials, including parole officers, have observed that they tend to bunch sex offenders in drug-infested, rundown neighborhoods that are poorly suited for anyone trying to turn around a life.

It's interesting to see such an editorial against registration laws as currently designed and residency restrictions.

HT: SexOffenderResearch.

New Jersey Appellate Court Strikes Down Local Residency Restrictions

It's been a while since a couple trial courts in New Jersey held that local residency restrictions were inconsistent with the state's Megan's Law. An appellate court has finally issued an opinion for the appeals of those decisions and reached the same conclusion as did the trial courts. From the court opinion:

In these appeals, we consider challenges to municipal ordinances prohibiting convicted sex offenders from living within a designated distance of schools, parks, playgrounds and daycare centers. The trial courts in both cases invalidated the ordinances, finding them preempted by state law and violative of the due process, ex post facto and double jeopardy clauses of the New Jersey Constitution. We affirm. We hold that the ordinances are preempted by state law and therefore invalid. Because we decide the appeals on preemption grounds, we do not address the constitutional issues.

I think it is clearly true that the local residency restrictions are inconsistent with the state's Megan's Law. However, if the state was so inclined, it could simply amend the registry statute to allow local residency restrictions. I was a bit more surprised that the appellate court found due process, ex post facto, and double jeopardy grounds to strike down the local law. The court based its decision on state constitutional grounds (which can be more extensive than similar federal rights). I'm no expert on New Jersey constitutional law so I'm not sure if those constitutional rights are afforded greater protection in that state. However, this decision really makes the New Jersey court an outlier among appellate courts who have ruled in residency restriction cases. (edit: as David Giacalone correctly notes in the comments, the appellate court didn't affirm the constitutional reasoning of the trial court. I guess that posting during the never-ending, exciting All-Star game distracted me because I have no idea why I thought the constitutional issues were decided - sorry about that). It will be interesting case to watch as the appeal moves forward.

Thanks for the many readers who sent me the link. f/k/a is also covering the case here.

Around the Web

The Stanford Daily has an article covering law professor Jeffrey Fisher, who recently argued Kennedy v. Louisiana before the U.S. Supreme Court.  According to Fisher, "[t]his was definitely one of the very biggest [cases] that I’ve done, in terms of the intensity and importance.”

A repeat California sex offender has been sentenced to 290 years to life in prison after being convicted of multiple counts of rape and sexual assault charges involving an 11 and a 14-year-old girl.  The man was previously convicted in 1985 of molesting another female family member.

The Louisiana State Senate has approved a bill which would "give judges the option of imposing chemical castration on those convicted of aggravated rape, simple rape and indecent behavior with a juvenile."  Additionally, chemical castration would be mandatory on second offenses, though the offender would have the option of choosing physical castration instead. The bill will now move to the House.

The New Jersey Corrections Department is "looking for a private company to house its 373 'sexually violent predators.'"  The Corrections Department seeks to reduce overcrowding at facilities that house convicted sex offenders. 

The Associated Press reports that "[m]ore than half the teen girls taken from a polygamist compound in west Texas have children or are pregnant," according to State officials.  Of the 53 girls between the ages of 14 and 17 currently in state custody, 31 either have children or are pregnant.