Sex Crimes

One Punishment, Many Crimes

Michael Connelly at Corrections Sentencing has a nice post discussing the problem of the "one size fits all" approach to sex offender sentencing and regulation:

We talk here a lot about the poor policy, human tragedy, and waste of our needed resources based on the underlying story that all offenders are the same, all "bad guys" whom we the "good guys" should use as examples to show we're better than they are. In too many cases, those "bad guys" exist, but the examples we make don't logically stop true "bad guys," by definition. And in the meantime, the offenders who are accidents, screw-ups (think "My Name Is Earl"), and hardened but salvageable get treated in ways that ensure many more of them than necessary end up victimizing us again, and often worse.

This is particularly true in the area of sex offenders. Many of those "guys" are truly "bad" and deserve what we parcel out. But our "one size fits all" approach in this area leaves a tremendous amount of self-inflicted damage in its wake as we punish people who did something stupid, not serial. The Tulsa World today has a great story on a woman treated to the residency restrictions so popular for a single idiot thing she did when younger. As a result, she and her 16-year-old daughter could only find housing among pedophiles and rapists. Keep in mind as you read the story that OK really does treat all sex offenders, of any offense, as the same "bad guys" and only now is considering a tiered classification system that might bring relief to former offenders who find themselves in this woman's situation.

Here is the link to the Tulsa World article discussed in the post.  There have been so many persons caught up in the sex offender nets that you wouldn't expect.   There was the guy who exposed himself at a party and was a plaintiff in the Iowa case.  There was also the mom in Georgia who bought her daughter birth control when the daughter was the victim of statutory rape (and, I believe, the daugther is now married to that "rapist").  In this case, a young woman flashed and solicited an officer and received a deferred sentence.  Now, the woman is a mother struggling to get by despite the numerous restrictions placed upon her because of her status as a sex offender. 

Residency Restrictions in Oklahoma

Via Sentencing Law & Policy and Corrections Sentencing, we get an article about the residency restrictions debate in Oklahoma:

With 90 percent of the city off-limits, fewer offenders are registering their residences.

A law that was intended to restrict where sex offenders live is driving them underground, Tulsa police say their records show.

About two years ago, the number of sex offenders registered in Tulsa peaked at 540. Now, Tulsa has 372 offenders registered, said Sgt. Gary Stansill, supervisor of the Police Department's Sex Crimes Unit.

But that doesn't necessarily mean fewer sex offenders are living here.

Stansill said a controversial state law that went into effect last year has put 90 percent of the city off limits for sex offenders by prohibiting them from living within 2,000 feet of playgrounds, parks or child-care facilities. They were already prohibited from living within that distance from a school.

While well-intended, the changes to Oklahoma's Sex Offender Registration Act have made it very difficult for offenders to find places to live legally.

"They come down here and give us their address where they want to live, and we say, 'That is restricted; you can't live there,' " Stansill said. "They may come back two or three times, and sometimes they never show back up."

I can't say I'm surprised.  This result is entirely consistent with what has happened in Iowa.  And like Professor Berman, I'm happy to see law enforcement officials speaking out against these laws.

Adam Walsh Act Challenge in Oklahoma

Yesterday, I blogged about the challenge to the Adam Walsh Act in North Carolina.  Today, I'm posting the filings from a challenge in Oklahoma to the same statute, although this case is not about the civil commitment provisions of the Act.  These filings are actually older than the North Carolina ones, but I couldn't post them before due to "technical difficulties" (which is my way of saying I couldn't figure out how to do it right before).  Anyway, here is the motion to dismiss, the response to the motion to dismiss, and the order denying motion to dismiss.  The motion to dismiss contained six major challenges:

Darrell L. Templeton moves this Court to dismiss the indictment filed December 6, 2006. Mr. Templeton presents six arguments in support of this motion. First, Mr. Templeton contends the indictment is insufficient in that it fails to state the subsection Mr. Templeton’s 1989 Arizona sexual abuse conviction allegedly meets. Second, he contends the there is no federal subject matter jurisdiction for this prosecution because the federal failure to register as a sex offender statute violates the Commerce Clause of the Constitution. Third, he argues that he was no longer required to register as a sex offender pursuant Arizona law and not required to register federally. Fourth, Mr. Templeton’s 1989 Arizona sexual abuse conviction occurred at a time that is not covered by the Sex Offender Registration Notification Act and the federal failure to register as a sex offender statute. Fifth, the Sex Offender Registration and Notification Act and the federal failure to register as a sex offender statute violate the Ex Post Facto Clause. Lastly, Mr. Templeton posits that the Sex Offender Registration and Notification Act and the federal failure to register as a sex offender statute violate Due Process.

Ultimately, though, the district court rejected the defendant's motion to dismiss in its entirety.  Here is a snippet from the discussion of the retroactivity issue:

Further, the Court finds that the federal failure to register as a sex offender statute does not violate the Ex Post Facto Clause. Article I, § 9 of the United States Constitution states: “No Bill of Attainder or ex post facto Law shall be passed.” A law violates the Ex Post Facto Clause only if it (1) punishes as a crime an act that was not criminal when it was committed; (2) makes a crime’s punishment greater than when the crime was committed; or (3) deprives a defendant of a defense available at the time the act was committed. Collins v. Youngblood, 497 U.S. 37, 52 (1990). Having
carefully reviewed the federal failure to register as a sex offender statute, the Court finds that the federal failure to register as a sex offender statute does not serve to punish defendant for an act that was not a crime when allegedly performed, does not make the punishment greater for a crime committed before the law’s enactment, and does not deprive defendant of a defense available before its enactment. Therefore, the Court finds that the federal failure to register as a sex offender statute does not violate the Ex Post Facto Clause.

The district court's handling of each of the issues is brief, so it makes for a quick read if you are interested in the subject.  With the Oklahoma and North Carolina challenges, I think the federal public defenders are doing a good job in identifying and arguing the key legal arguments against the Adam Walsh Act.  However, they haven't had any success yet.  I won't be surprised if district and, eventually, circuit courts split on the statute because of the issues raised are close calls.

Oklahoma Sentencing Commission Comments on Sex Offender Laws

In Oklahoma, among other issues addressed by the Oklahoma Sentencing Commission, the Commission thinks the state may want to rethink its approach to sex offender residency restrictions:

Also during the meeting, representatives from the Oklahoma Sex Offender Management Team told commissioners the restrictive nature of the state's sex offender laws, which forbid registered sex offenders from living within 2,000 feet of a school, playground or day care center, are forcing many offenders to either move out of urban areas _ where most areas now are off-limits for them _ into rural areas, where treatment options are limited, or not register at all.