Sex Crimes

NY Times Series on Civil Commitment and Sex Offenders

Although several years old, I recently stumbled across this multimedia New York Times series discussing sex offenders and civil commitment. The articles are available in three parts: part 1 | part 2 | part 3. The multimedia feature can be viewed here. Though popular with legislators, the article finds doubts about the effectiveness of civil commitment.

Carr v. United States - Initial Thoughts

In a bit of a surprise, Carr won on a 6-3 vote. Although, as I thought, the likely way Carr would be victorious would be on the statutory interpretation issue and not the Ex Post Facto Clause claim. The outcome will have an effect on very few prosecutions and Congress can "correct" the outcome whenever it wants. So, it isn't much of a decision against SORNA or the AWA in any meaningful way.

I have to say that I was more than a little disappointed that Justice Alito, who had to address the Ex Post Facto issue in his dissent, disposed of it in a single footnote paragraph which lacked any substance. Here was his argument on the issue:

Petitioner makes the additional argument that interpreting §2250(a)(2)(B) to reach pre-enactment travel renders the statute anunlawful ex post facto law. See U. S. Const., Art. I, §9, cl. 3. Petitioner remained unregistered in Indiana five months after the promulgation of the regulation making SORNA applicable to persons with pre-SORNA sex-offense convictions. For essentially the reasons explained by the Court of Appeals, see United States v. Dixon, 551 F. 3d, at 585– 587, I would reject petitioner’s ex post facto argument.

Even though it isn't a majority opinion, that treatment is just sad. Judge Posner's lower court opinion of the Ex Post Facto Clause claim was based upon lower court cases that were inapplicable (because they applied in instances where Congress specifically declared that the crime was a "continuining offense"). To just adopt such a poorly developed argument without engaging any of the briefing on the issue seems weak.

Of course, everyone has noted the odd alignment of the Justices as Thomas, Alito, and Ginsburg formed the dissenting group. I think if more were at stake in the case, such a grouping would have been unlikely.

There is plenty of coverage around the legal blogosphere and I should have more later.

Comstock Roundup

News media and the blogosphere are abuzz with discussion of the Comstock case and its future implications. Here is a round up of the media and blog coverage (in no particular order): Associated Press (1, 2, video), USA Today, New York Times, Wall Street Journal, Washington Post, Volokh Conspiracy (Volokh, Volokh, Barnett, Adler, Somin), Sentencing Law & Policy (1, 2, 3, 4), SCOTUSblog, Constitutional Law Prof Blog, ABA Journal, TIME, Cato @ Liberty, Los Angeles Times (1, 2), CBS News, ABC News, CNN, AFP, MSNBC, Business Week, National Public Radio, Christian Science Monitor.

MA High Court Considers GPS Monitoring for Sex Offenders

Recently, the Massachusetts Supreme Judicial Court heard a case where a sex offender who objected to wearing a GPS-monitoring device during his probation term. From the Boston Herald:

Allowing sex offenders to roam free without GPS monitoring has district attorneys joining forces to appeal to have judges granted the authority to slap the fiends with ankle bracelets.

The state Supreme Judicial Court yesterday heard both sides of the controversy in a case about a convicted Middlesex County child rapist who objected to wearing a GPS-monitoring device during his 10-year probation term.After he finished jail and civil sentences last summer, the Probation Department requested GPS monitoring for Goodwin.

Superior Court Judge Kathe M. Tuttman, however, ruled she did not have the authority to impose the monitoring. In her ruling, Tuttman cited a 2009 SJC decision that decided a 2006 law mandating GPS devices on all sex offenders placed on probation cannot apply retroactively.

Goodwin’s attorney, Beth L. Eisenberg, also said Tuttman’s ruling found imposing GPS tracking amounted to impermissable punishment because he was in compliance with all the terms of his probation.

Since the summer, about 234 sex offenders have been allowed to remove their ankle bracelets as a result of the SJC ruling.

H/T: Sentencing Law & Policy.

Chicago Tribune: "Are sex offender laws working?"

The Chicago Tribune has an interesting article discussing how Illinois' sex offender residency restrictions may be doing more harm than good. From the article:

Thousands of sex offenders have remained in prison for parole and then been returned to the streets without oversight or treatment. These offenders are less likely to register their addresses than those serving tightly monitored paroles in the community. They also are more likely to reoffend, sometimes repeating the same sex crimes, the review found.

Of the 1,292 sex offenders discharged in fiscal 2008 after serving parole behind bars, 28 percent were listed as missing, not having registered their address or not being up-to-date with their registrations, compared with 23 percent of the 1,868 sex offenders paroled into the community.

Another 21 percent of the discharged offenders returned to prison, a slightly higher rate than those who were paroled. But in most cases, offenders monitored in the community were sent back to prison for technical parole violations, in many cases housing-related problems, while the discharged offenders were convicted of new crimes.

Sex offender housing restrictions have long been criticized by civil liberties advocates, who argue that it's unjust to banish any segment of society, and by criminal justice experts, who say it's more productive and cost-effective for most offenders to undergo parole supervision and treatment in the community.

Now some victims' advocates and members of law enforcement are echoing the calls for reform.

Swiss Delay Polanski Extradition

Switzerland has decided not to extradite Roman Polanski until a California court first resolves whether the fugitive film director can be sentenced in absentia. TalkLeft has more. From the UK Press Association:

Justice Ministry spokesman Folco Galli said that a judgment on sending Polanski back to Los Angeles was still pending, but provided the clearest timeline to date for when Swiss authorities may close their examination.

If it grants Polanski's request to be sentenced in absentia, it could mean that the 76-year-old director avoids a forced return to the US. The Swiss will not extradite him unless he is given a sentence longer than six months.

But rejection from the California court might mean that time has run out for Polanski, who fled the US in 1978 after admitting to having sex with a 13-year-old girl. The Swiss arrested him on September 26 as he arrived in Zurich to receive a lifetime achievement award from a film festival, and imprisoned him for over two months before moving him to house arrest at his chalet in the luxury resort of Gstaad.

Polanski's extradition is a complicated and diplomatically sensitive decision for the Swiss, as it deals with a three-decade-old case with accusations of wrongdoing by a Los Angeles judge, a confused sentencing procedure and the director's own flight from justice. There is also Polanski's status as a cultural icon in France and Poland, where he holds dual citizenship, and his history as a Holocaust survivor whose first wife was brutally murdered by crazed followers of cult leader Charles Manson in California.

Iowa Town's Total Sex Offender Ban May Be in Jeopardy

A helpful reader informs us that a small town in Iowa (Dyersville to be precise) has decided against repealing an ordinance that bans all sex offenders from residing within the city limits. The ordinance however, is in tension with the state's own residency restrictions which prohibit sex offenders from living within 2,000 feet of schools, libraries, and daycare centers. Thus, it appears that the town's ordinance is in a state of limbo. From The Telegraph Herald:

The Dyersville City Council decided not to act Monday on a repeal of an ordinance passed in 2005 that bans all sex offenders from residing within city limits.

Council member Molly Evers, a longtime opponent of the ordinance, cited a recent change in Iowa Code that takes away power from municipalities to adopt ordinances on residency of sex offenders.

[Under Iowa law], "any motion, resolution or ordinance adopted by a political subdivision of the state is void and unenforceable."

Four days after the council meeting, Evers expressed her displeasure with the decision not to move forward. "Dyersville should do the right thing now and bring its ordinance in accord with state law," Evers wrote in an e-mail to the TH. "Unfortunately, though, some people cannot admit it when they are wrong.

City Attorney Marc Casey contacted the Iowa Attorney General's office for "informal" advice before forming his opinion, according to Iowa Attorney General spokesman Bob Brammer.

"In our view, a local ordinance in this realm likely would be preempted by the specific language in the statute," Brammer said. "We encourage any city to consider and research if there are potential liabilities if the city enforces an ordinance that has been preempted or voided by state law."

Heavens said he's not concerned about litigation against the city. "Somebody would have to show they were harmed that they can't live in the city limits of Dyersville," Heavens said. "We have never had (sex offenders) come here and ask us to live here."

Meanwhile, a 19 year old Dyersville man has been charged with the sexual abuse of two 13 year old girls.  If he is convicted, it will be interesting whether the town will enforce the residency restriction on a current resident. 

AZ Lawyer: Adam Walsh Act Unconstitutional

According to an attorney representing a retired police officer facing child pornography charges, the federal Adam Walsh Act is unconstitutional both on its face and as applied to his client. Specifically, the lawyer is challenging a provision of the new law that requires his client to wear an electronic monitoring basis. From the Arizona Daily Star:

Michael Piccarreta contends the Adam Walsh Child Protection and Safety Act is unconstitutional as a whole and as it applies to his client, Jefferson Sutton Stahl, because it prevents individual judges from determining whether electronic monitoring is needed.

Stahl, 62, was indicted in January on three counts of possession of child pornography and one count of receipt of child pornography.

His is alleged to have purchased four DVDs containing child pornography in June, one year after retiring from the Tucson Police Department following a 32-year career.

Court records indicate Stahl began communicating online in June 2008 with an undercover U.S. Postal Inspector operating an Internet forum described as "a special group for daddys who love young little munchkins!"

Piccarreta told U.S. Magistrate Judge Thomas Ferraro deciding whether a defendant requires electronic monitoring should be up to the judge, not up to legislation.

"I feel it's inappropriate for Congress to limit judicial power," he said.

Electronic monitoring is an essential part of the pretrial release process for people accused of sex crimes, Assistant U.S. Attorney Carin Duryee said.

U.S. Senate Rejects Sex Offender Amendment To Health Care Bill

Sex offender regulation and health care reform don't often mix, but that did not stop Sen. Tom Coburn (R-OK) from trying to bar insurance coverage of erectile dysfunction drugs for sex offenders. Senate Majority Leader Harry Reid (D-NV) was quoted as saying, "how serious could they be offering an amendment on Viagra for rapists?" From the New York Times blog:

It was, by all accounts, the most politically volatile amendment proposed to the health care legislation so far: a proposal by Senator Tom Coburn, Republican of Oklahoma, to bar federal health programs and the future federally regulated insurance exchanges from covering the cost of erectile dysfunction medication for convicted sex offenders.

Mr. Coburn, arguing for his amendment, said it was a step intended to save taxpayers’ money. The proposal, he said, “creates a prohibition so that erectile dysfunction drugs are not paid for by the American taxpayers” for “convicted rapists” and “pedophiles in this country.”

Senator Max Baucus, Democrat of Montana and chairman of the Finance Committee, said, “The amendment offered by the senator from Oklahoma makes a mockery of this Senate.” He added, “It’s a crass political stunt aimed at making 30-second commercials, not public policy.”

The Senate voted to kill the amendment, by 57 to 42. All 57 votes in favor of dismissing the amendment were by Democrats, while two Democrats joined 40 Republicans in supporting Mr. Coburn’s proposal. They were Senators Evan Bayh of Indiana and Ben Nelson of Nebraska.

Should Tennessee Teens Be Included In Sex Offender Registry?

Tennessee state legislators are debating whether to include juvenile information (such as names and photographs) into the state sex offender registry. From the Jackson Sun:

State Rep. Debra Young Maggart, R-Hendersonville, introduced a bill last month that would require youths 14 or older to be placed onto a public registry for violent sexual offenses such as rape or attempted rape.

The bill, House Bill 2789, also states that when the offenders turned 18, they would continue to have a record as an adult and would be placed on the adult registry.

Some restrictions that apply to adult registered sexual offenders would not apply to the juveniles until they turned 18, according to the bill. For example, adult offenders whose victims were minors can't live, work or attend treatment programs within 1,000 feet of a school, child-care facility, or public park or recreation area.

Supporters of creating a juvenile sex offender registry tout it as a way to make the public aware of violent criminals. Critics of the proposal say many juvenile offenders can be reformed and the bill could harm their ability to live a normal life. An example they cite is potential problems with finding a job.

H/T: Sentencing Law & Policy.