Sex Crimes

More Op-Eds Discussing Sex Offenders and Religion

Both the St. Louis Post-Dispatch and Time.com are running editorials asking whether sex offenders can be banned from churches, a topic we previously discussed. From the St. Louis Post-Dispatch:

James Nichols, 31, is a convicted sex offender who can’t understand why he is isn’t allowed in church.

According to this story by the Associated Press, Nichols was arrested after attending a church in North Carolina that also contains a daycare center. North Carolina law states that sex offenders can not come within 300 feet of “any place intended primarily for the use, care or supervision of minors.”

Nichols is now challenging that law as it relates to churches, claiming that his ability to practice his faith is critical to his rehabilitation.

According to the AP article, Joseph Green, pastor of a church Nichols attended, had this to say "I told him as long as he’s honest with me, then we’re willing to embrace him and help him focus and get his life back on track."

"Banned from churches, sex offenders go to court"

The Associated Press has an interesting article discussing the growing trend of banning sex offenders from churches. It was not long ago that the State of Georgia enacted a law prohibiting sex offenders from volunteering at church. Today, one North Carolina sex offender is challenging a new law that bans him from his church because it has a daycare center. From the article:

Convicted sex offender James Nichols said he was trying to better himself by going to church. But the police who arrested him explained: The church is off-limits because it has a daycare center.

Now Nichols is challenging North Carolina's sex-offender laws in a case that pits the constitutional right to religious freedom against the state's goal of protecting the public from child molesters.

At issue in Nichols' case and a similar one in Georgia are day care centers and youth programs at houses of worship where sex offenders can come into proximity with children. Sex offender advocates agree some convicts should not be allowed around children, but they contend barring all offenders denies them support needed to become productive citizens.

Church leaders feel caught between leading houses of worship where broken people can seek help and preventing criminals from exploiting a place of trust.

Another Free Exercise of Religion Issue for a Sex Offender

These days, sex offenders can't even go to church in some areas. Not long ago the State of Georgia enacted a law prohibiting sex offenders from volunteering at church. Now a North Carolina sex offender is fighting for the right to attend church, albeit one that also maintains a day-care center. From UPI:

James Nichols, 31, told The (Raleigh, N.C.) News & Observer he was surprised by his arrest in March. Sheriff's deputies learned he was attending Moncure Baptist Church in Chatham County while they were investigating an alleged sexual assault in the parking lot -- one not involving Nichols.

"Anyone in this world has a right to practice their religion, and whether they've made any mistake in their life, they should have the right," Nichols said.

The American Civil Liberties Union is supporting Nichols, while psychologists and social workers who deal with sex offenders are lobbying the General Assembly to modify the state law.

State Sen. David Hoyle, who pushed for the tough law, sees no need for change.

"As far as I'm concerned, they've lost all their rights -- to go to church ... to go to McDonald's to get a cheeseburger ...," the Gastonia Democrat said. "They have made that choice. They have imposed that on themselves. I didn't."

The Georgia law was temporarily enjoined and I think the Free Exercise claim stands a good chance of success. It will be interesting to see if courts split in these cases.

North Carolina Man Uses Craigslist To Have Wife Raped

People use Craigslist for all sorts of things, but one North Carolina man is accused of arranging the rape of his wife raped through the website. From CNN:

Police responded to the home at about 2:45 a.m. after receiving a 911 call indicating a male armed with a knife appeared in the couple's bedroom and sexually assaulted the man's wife, authorities said.

The man was present at the time of the assault, and two young children were in the home, but were unharmed and unaware of the incident, the police statement said.

"During the investigation, investigators interviewed the victim and her husband," the statement said. "Investigators became suspicious when they noticed there was no sign of forced entry to the home. Investigators also developed information that led them to note specific inconsistencies in the initial statement provided by [the man]."

But on Tuesday, police found that the man "had responded to at least two personal ads on Craigslist.com in an effort to arrange for someone to come to his home and have sex with his wife using some type of scare tactic."

While this fact pattern is extremely disturbing, it is not unprecedented. The story seems like a more modern version of a case that lots of students study in Criminal Law to understand derivative liabity between principals and accessories under the common law: Regina v. Cogan and Leak.

H/T: abyss2hope.

Break in Blogging and Comstock

I just had my first child and he arrived ahead of schedule. He is doing very well in the neonatal intensive care, but until all of that is taken care of, I won't be blogging. Hopefully, the break won't be too long.

However, I just found out what happened in Comstock, so I had to mention it here. From SCOTUSBlog:

Chief Justice John G. Roberts, Jr., put on hold on Friday a federal appeals court ruling that the federal government contended would lead to the early release of “the great majority” of “sexually dangerous” inmates now held in federal prison.  In a brief order, the Chief Justice said there was “a presumption of constitutionality” of the 2006 federal law that the Fourth Circuit Court struck down.  He thus blocked temporarily the Circuit Court ruling, until the Justices act on a new government appeal filed Friday (U.S. v. Comstock, et al., 08-1224).

Roberts took little time to act. The Justice Department in the morning asked for a delay of the appeals court decision, but also sought an “immediate, interim” stay while its request was awaiting the Chief Justice’s reaction. Roberts, without seeking a response from the challengers to the federal law, by late afternoon issued his order fully staying the Circuit Court.

I have to admit I'm baffled by this. Early release of dangerous sex offenders? Only if "early release" is defined as releasing somebody at the end of their sentence. The government could have filed this motion at any time after the Circuit Court decision. Waiting until the last possible minute to create "immediate" harm so the other side couldn't argue seems very strange to me. Either way, I take this as a strong signal that the Court will grant cert. in the case.

Sentencing Law & Policy's coverage is here.

Social Networking Site Bans Sex Offenders, Turns Over Data

The social networking site MySpace has provided the names of 90,000 registered sex offenders now banned from the site to two state attorneys general.  The move comes despite the fact that a government sponsored task force found that online solicitation of children was not as big a deal as some had made it out to be. From the New York Times:

MySpace provided two state attorneys general the names of 90,000 registered sex offenders it had banned from its site in response to a subpoena.

The figure is 40,000 more than the amount previously acknowledged by MySpace, according to Attorney General Richard Blumenthal of Connecticut, who along with Attorney General Roy Cooper of North Carolina are among officials pressing social networking sites to adopt more stringent safety measures.

“Almost 100,000 convicted sex offenders mixing with children on MySpace — shown by our subpoena — is absolutely appalling and totally unacceptable,” Mr. Blumenthal said in a statement. “For every one of them, there may be hundreds of others using false names and ages.”

Last year, MySpace, owned by News Corporation, and Facebook.com agreed to set security standards after the Web sites were criticized for not doing enough to protect minors from sexual predators lurking on social networking sites.

Facebook, a privately held company based in Palo Alto, Calif., said the company was still working with Mr. Blumenthal to respond to a similar subpoena.

The disclosure renews the debate of whether social networking sites are a haven for sex offenders. “This is just the tip of the iceberg on MySpace,” said John A. Phillips, chief executive of Aristotle, a company that supplies identity and age verification technologies for companies like the New York State Lottery, breweries and film studios. “These are just the convicted sex offenders” who used their real names.

MySpace’s disclosure follows a report by the Internet Safety Technical Task Force, a panel created by 49 attorneys general, that said the issue is overblown. It concluded the problem of bullying among children, both online and offline, was far more serious than sexual solicitation of minors by adults online.

Mr. Phillips, who served as a member of that task force, has been critical of the report. Ernest Allen, president of the National Center for Missing and Exploited Children, said the figure was “disturbing” but that there is no way to know how large the presence of online predators really is.

“We don’t know if that’s 80 percent of the population targeting kids on the Internet or 1 percent,” Mr. Allen said.

He commended MySpace for removing convicted sex offenders from its site. “This clearly reinforces the fact that there are a significant number of people who seek access to kids online,” Mr. Allen said.

Hemanshu Nigam, chief security officer for MySpace, said the company had spent the last two years purging problem members from its site.

“The reality is there are 700,000-plus sex offenders living in the streets of America,” Mr. Nigam said. “What we did was build cutting-edge technology to figure out where they might be living on the Internet and remove them from our site.”

MySpace reported that its community grows 10 percent year over year but has also reported a 36 percent drop in the number of registered sex offenders trying to create profiles.

H/T: TalkLeft.

4th Circuit Got it Right in Comstock

(In the interest of full disclosure, I did help out in a very minor way in the Comstock appeal, so I'm not a wholly disinterested spectator in this case)

The Fourth Circuit issued a unanimous and very noteworthy AWA opinion today in a case that I have blogged about a few times before. In U.S. v. Comstock, the Fourth Circuit affirmed the district court judgment that 18 U.S.C. 4248 of the Adam Walsh Act was unconstitutional because the federal government lacks the authority to enact the provision. Section 4248 concerns the civil commitment of sex offenders after incarceration. This is from the opinion:

After carefully considering the Government’s arguments, we conclude, for the reasons set forth below, that § 4248 does indeed lie beyond the scope of Congress’s authority. The Constitution does not empower the federal government to confine a person solely because of asserted "sexual dangerousness" when the Government need not allege (let alone prove) that this "dangerousness" violates any federal law. We therefore affirm the judgment of the district court.

I have been arguing for quite some time that certain portions of the AWA are unlawful exercises of congressional power under the Commerce Clause so I'm extremely happy to finally see a federal appellate court reach a similar conclusion. I think the case against 4248 is stronger than that against SORNA provisions because there simply was no jurisdictional limitation in the civil commitment section. Given the lack of Congressional findings and jurisdictional statement, Congress was basically thumbing its nose at Morrison (which also concerned federal authority over sexual violence). 

Eugene Volokh has chimed in and he is a little more critical of the opinion. From his post:

At the same time, presumably civil commitment of sexual offenders is aimed at preventing repeat sexual offenses. (Let's set aside whether such civil commitment after the end of a sentence may sometimes deny people liberty in violation of the Due Process Clause; that's an issue unrelated to the federal power question, since it would apply equally to states.) And presumably someone who committed a federal sex crime (e.g., possession or trafficking of child pornography) is pretty likely to commit another crime of much the same variety -- which will likely be a federal crime -- and not just some other random state sex crime. If the Commerce Clause power to regulate commerce authorizes Congress to ban commerce in child pornography, and the Necessary and Proper Clause therefore authorizes Congress to ban even private possession of child pornography, then it's hard to see why the Necessary and Proper Clause wouldn't authorize continued detention of people who have shown a willingness to commit such federal crimes.

This was certainly the government's position, but I just don't know how you can reconcile such reasoning with the holding in Morrison. The Necessary and Proper Clause alone can never alone provide a basis for federal jurisdiction. It needs another jurisdictional hook, in this case the Commerce Clause. At the time of civil commitment, the prisoner (or in many cases under 4248, the former prisoner) has no connection to interstate commerce. He or she may have at the time of the original conviction, but that time has long since passed. Volokh argues that prevention of future sex crimes might be sufficient, but that rationale was explicitly rejected in Morrison. Even if you believe these particular persons are of a higher risk than the hypothetical tort defendants under VAWA, that risk seems unrelated to a basis for federal jurisdiction. Volokh's argument similarly is in conflict with Lopez. Why couldn't the Necessary and Proper Clause have provided sufficient basis for preventing guns from being possessed near schools since such possession could well increase the risk of gun violence toward children?

Volokh then takes his argument in a different direction (which was not in the briefing that I remember) that presents more difficulty than his initial claim:

One way of thinking about it might be to think about the historically established practice of civil commitment of people found not guilty by reason of insanity. If someone is tried for a federal crime and found insane, he won't be imprisoned for the crime -- since he's not criminally guilty -- but he will be locked up in a mental hospital so long as he is thought to be dangerous. I think that's right, but how does it fit the panel's decision? After all, the person is not guilty, so Congress can't appeal to its power to punish federal criminals (just as the people in this case can't be further criminally punished, since there terms are up). True, we worry that this insane person will commit another crime, but under the panel's reasoning, that might well be a state crime. So must Congress release such people unless it gets a state to agree to take custody of them? Perhaps that's the right answer, since Congress lacks the enumerated power to detain them -- but I'm skeptical that this is so.

I think the initial decision to send someone to a civil facility based upon a finding of insanity is clearly tied to the Commerce Clause in the same way a criminal sentence would be. That jurisdictional hook exists based upon the original crime. I think the tougher issue is the decision to release or not release someone from a civil facility upon completion of their treatment. Such cases seem somewhat analogous to the 4248 provisions. However, I think there is a strong argument for the Necessary and Proper Clause in the insanity case because a decision on further treatment or release simply must be made - it is "necessary." In contrast, the 4248 commitment is a wholly separate procedure that bears no relation to the original conviction (as proven by the fact that the government has attempted to use the procedure for persons not convicted for sex offenses).

Volokh concludes by stating that this case is likely headed to the USSC. I'm not so sure. First, there will almost certainly not be a circuit split on this issue simply because almost all of the cases of this type go through the same district in North Carolina as that is the site of the only appropriate federal facility. (Edit: As noted in the comments, there is at least one other facility so the possibility of a circuit split is certainly present. I think it is much more likely now that the case will go to the USSC). Second, since this provision affects so few people, I'm not sure it is worth USSC time. Ultimately, I think the USSC is likely to take up a SORNA case instead simply because there is a much tougher legal issue (since a jurisdictional limitation exists) and a far larger number of people are affected by the statute (500,000+). Either way, it is about time for the Court to clean up the Commerce Clause mess after Raich, so I hope they look at one of the AWA provisions.

Update: Illya Somin, also at Volokh Conspiracy, has added his thoughts as well. Somin, as exhibited in our previous debates about different provisions of the AWA, takes a very broad view of "economic activity" as defined by Raich. Notably, the government did not defend his position in its briefs in Comstock. In fact, the government banked heavily on the Necessary and Proper Clause argument that was well-captured by Volokh's post. From Somin's post:

Finally, Raich restored the so-called "rational basis" test for judicial review of Commerce Clause cases. In plain English, that means that the government doesn't have to actually prove that Section 4248 regulates "economic activity" or that it is part of a broader regulatory scheme. Rather, the government can win simply by showing that Congress might have had some "rational" reason for believing that one of these two conclusions is correct. And by "rational," the Court means merely that there is some possibility, even if a very remote one, that Congress' putative reasoning might be sound.

Unfortunately, the Comstock decision dismisses Raich in a brief footnote that ignores most of the considerations discussed here. The Fourth Circuit does rely heavily on the Court's two earlier Commerce Clause decisions in United States v. Lopez and United States v. Morrison, but essentially ignores the way in which Raich greatly undercuts those precedents by virtually confining them to their facts. I discuss the impact of Raich on Lopez and Morrison in my article linked above; see also this excellent piece by co-conspirator Jonathan Adler.

I continue to think that Somin overestimates the degree to which courts will adopt such an expansive position as to the definition of "economic activity." Even in cases where courts have upheld other provisions of the AWA (specifically, SORNA), they have most often done so under the 2nd Lopez prong. It isn't clear how rational basis applies in such cases. The government briefing in Comstock was confused as to which prong they felt justified 4248 so the rational basis discussion was not really played out. Hence, the 4th Circuit's dismissal of Raich in a footnote seems appropriate.

Strict North Carolina Sex Offender Laws Take Effect

North Carolina's new sex offender restrictions took effect today, requiring some offenders to remain on the state's registry for 30 years and requiring offenders to stay at least 300 feet from places where children might congregate. From the Winston-Salem Journal:

Stricter new rules governing sex offenders took effect Monday in North Carolina, tripling the number of years that some offenders must remain on the state's registry and requiring them to stay away from places where children normally gather.

The rules require that offenders convicted of certain sex crimes against children or of sexual violence must remain on a state registry for 30 years, up from the previous requirement of 10 years, the Raleigh News & Observer reported. The state's more than 11,000 offenders are required to register in person with the local sheriff within three days of changing addresses, instead of the previous 14-day window.

Offenders also must stay at least 300 feet away from places where children congregate, like day care centers and schools.

One offender said his county's sheriff said he couldn't go to his church because there was a nursery in the building. The newspaper didn't identify the county.

"I started going to that church when I was 12," said Neil Cagle, 61, who served a four-year prison term for taking indecent liberties with a minor.

The new rules were approved by the Legislature and signed into law by Gov. Mike Easley this year.
Legal experts and one legislator said the new rules are too strict because they don't draw a line between offenders who are likely to commit another offense and those trying to lead clean lives.

"We've cast the net too wide," said state Rep. Verla Insko, D-Orange, who was the only legislator to vote against the law.

Insko said she will try to get other legislators to understand the problems she sees in the new law.

Jill Rosenblum, a Chapel Hill lawyer who represented a man who committed a sexual offense as a teen, said federal figures show 3.5 percent of offenders would be classified as repeat offenders. She said those people need the closest supervision.

Christi Hurt, a rape crisis counselor, said not all offenders are alike and that some had consensual sex with a person under age 16 while others sexually assaulted an adult.

Rosenblum and Hurt have been working to persuade state officials to redraw restrictions to target people likely to commit more offenses.

"The problem is, the law treats all offenders equally," Hurt said.

Around the Web

The Greensboro News Record has an editorial discussing a sex offender registry loophole in North Carolina law.  The op-ed discusses a case where a woman, "convicted in 1995 of taking indecent liberties with a child, registered her address as required. For several weeks, however, she spent most nights at her parents’ home in another town, returning during the day to check her mail and do household chores." The authorities charged her with violating the registration requirements and she was convicted.  The North Carolina appeals court "overturned the conviction, ruling the state did not provide enough evidence to show she had moved her actual residence." I have no idea what the so-called "loophole" is, but like the word "technicality" it is often used by media to describe an outcome they don't like.

Many blogs have noted this announcement from Concurring Opinions, which states that "Concurring Opinions, like A.I.G. and Fannie Mae/Freddie Mac before it, is now too big too fail. We expect that should our blogging rate slow, or the general market conditions to lead to a run on our host, the Feds will step in ensure market stability." Clearly, Sex Crimes must find a merger partner so that it can similarly protected by the Feds. Maybe we should contact Goldman to find an appropriate match in these troubled economic times.

FoxNews has an editorial which calls on Congress "to fully fund the sex offender registry and notification system they created two years ago under the Adam Walsh Act...."  The op-ed also asserts that Congress has "fallen short in providing money for federal law enforcers to carry out their responsibilities under the Adam Walsh Act, such as hunting down, arresting and prosecuting unregistered sex offenders."

Around the Web

The Houston Chronicle is reporting that federal district Judge Samuel Kent was indicted today "on charges of abusive sexual contact and attempted aggravated sexual abuse, making him the first federal judge to be charged with federal sex crimes and the first in Texas to be indicted in recent history."  Judge Kent is alleged to have physically touched his former case manager under her clothing and and often made obscene suggestions during the period in which she worked for him. Judge Kent's attorney says Kent has no plans to resign or retire, "he's not guilty and we will go to trial."  H/T: How Appealing.

A North Carolina town has "banned a registered sex offender from the town's parks following reports he asked parents if he could push their children on swings."  The man, who was convicted in 1987 for taking indecent liberties with a minor, is not allowed on the grounds of any of the town's nine parks and recreational facilities.

A landlord in Washington state who rents rooms to sex offenders is "getting out of the business because of threats against him and his family."  In a letter to the city, the man blamed city and state officials "for not coming to his defense and for not educating the public about the need for sex-offender housing."  Property records show that the landlord rents to about 200 sex offenders in 24 houses.

Sentencing Law and Policy directs us to an article in the San Jose Mercury News entitled Feds push child-porn cases; penalty can be years in prison. The article discusses the fate of former KGO radio host Bernie Ward, who is scheduled to be sentenced federal court for distributing sexual images of young children. According to the article, "[t]he best the 57-year-old Ward can hope for is five years in prison."  The article also notes that child-porn is "becoming one of the U.S. Justice Department's fastest-growing areas of prosecution, ... with prosecutions jumping nationally from a scant 30 in 1995 to more than 2,100 last year."