Sex Crimes

Vermont Sex Offender Wins Residency Restriction Battle

A Vermont court has ruled that a sex offender could not be barred from living in areas near where children are often found. You may view the ruling here. From the Brattleboro Reformer:

A sex offender who fought a city of Barre ordinance restricting where he could live has won a legal challenge.

Washington Superior Court Judge Helen Toor struck down the ordinance, finding that the city had failed to prove it had legal authority to dictate where people reside.

Christopher Hagan had sued the city after being told he couldn't live with his wife and children in a Barre apartment.

American Civil Liberties Union attorney Dan Barrett, his lawyer, says Friday's ruling is a victory for the rule of law. He says that Vermonters convicted of crimes should have their punishment determined by the courts, not by city councils or town select boards.

Vermont Given More Time to Comply With Adam Walsh Act

The federal government has provided Vermont, and several other states additional time to comply with provisions of the Adam Walsh Act. The Bennington Banner has more. From WCAX:

[The Act] requires Vermont expand its online sex offender registry, even though lawmakers passed legislation this session, expanding it to nearly 1,500 names. Federal law requires more names and more information. The original deadline was July.

But Senator Patrick Leahy argued Vermont, and many other states need more time to update the information, and the costs associated with it, just isn't in the budget for many states due to the recession.

No state is in compliance yet. No new deadline was set by the government.

Leahy Asks DOJ For Extension For the States to Comply with SORNA

Senator Patrick Leahy (D-VT) is asking Attorney General Eric Holder to provide an extension to the various states currently struggling to comply with the SORNA provisions of the Adam Walsh Act. You can read the letter here. From the Senator's press release:

Under the provisions of [SORNA], states and other jurisdictions are required to comply with certain sex offender registry provisions within three years of the passage of the Adam Walsh Act.
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The act was included as part of the Adam Walsh Child Protection and Safety Act, which was signed into law in 2006.

The deadline for compliance is July 2009, and no state or jurisdiction has yet met the requirements mandated in SORNA. The registry and notification program is costly to states that are facing mounting funding concerns amid the economic downturn. The Vermont State Senate is considering a resolution in support of the establishment of the registry and notification system in Vermont, and urging an extension to allow the state to come into compliance with the federal law.

Student Post - Romeo and Juliet: Sex Offenders?

What would we do with Romeo and Juliet? Some say that teenagers today are becoming sexually active at a younger age. Parents of sexually active teenagers face problems such as teen pregnancy, STDs, or, in some cases, their son or daughter facing criminal charges for statutory rape. Whoa, whoa, whoa, criminal charges? Yes, teenagers could face statutory rape charges for consensual sex with their teenage girlfriend or boyfriend, depending on the state law's age of consent. But is this "crime" what prosecutors should be spending their resources on? Perhaps yes, considering the substantial effects teen sex has on the individual and society. Perhaps no, considering teens have been having sex throughout history, and maybe these prosecutions are just an attempt to discourage premarital sex.

One concern is that the prosecution of teens, specifically boys, can be a form of discrimination. The Supreme Judicial Court in Massachusetts held that a 14 year old boy has a constitutional right to determine if the District Attorney discriminates against boys in the statutory rape prosecutions. Another concern is the lifelong effects of being labeled a sex offender (and having to register as a sex offender) for having "consensual" sex when the person (male teen) is so young when the "offense" occurred.

Whatever the motive for prosecuting teens for having sex with other teens, state legislators have considered reforming statutory rape laws. The Vermont legislature recently struck down a bill that would have relaxed the statutory rape law so that a 13 year old could have consented to having sex, so long as his/her partner's age is within 4 years. The current law allows a 15 year old to consent so long as his/her partner's age is within 3 years.

Teens face enough challenges without having to face the criminal justice system for hooking up with their lab partner. While the consequences of teen sex can be great, having a criminal record or being labeled a sex offender are not consequences that should be added. Preventing the problem of teen sex starts at home. Dealing with the consequences of teen sex also begins at home. But the ultimate consequence should not be handed down by the justice system.

What's Happening in Vermont?

As my colleague Colin Miller has indicated, quite a bit is happening in Vermont. Colin focuses, not surprisingly, on the evidence law related issue. While members of the Vermont Senate have proposed a 34-point plan, among the ommitted suggestions was a rule which would have, as Colin notes, "brought Vermont in line with the much despised Federal Rules of Evidence 413-415." Strangely, the news account of the story focuses on what wasn't included, while details of the 34-point plan are sketchy. For a little bit more information about the portions that did not make the cut, here are some of the details from a local news account:

In fact, Sears said from the outset that the committee would not spend time looking into two ideas backed by Douglas — civil confinement and the death penalty. Civil confinement would allow the state to hold certain sex offenders in prison beyond their sentences. Neither idea is included in the document.

Three other ideas have also been excluded from the Judiciary Committee's recommendations, including "judicial accountability," the federal Adam Walsh Act of 2005, and the idea of allowing a defendant's prior bad acts to be accessible to law enforcement and admissible in court, Sears said.

The failure to include an AWA compliance provision is pretty notable, but that may simply be taken up as a separate bill. I'm a bit surprised that the death penalty was even close to serious consideration after Kennedy v. Louisiana.

Vermont Weighing Costs, Benefits of AWA Implementation

The State of Vermont stands to lose up to $35,000 in federal funds if it does not enact Adam Walsh Act-complaint legislation.  However, that may be the far cheaper option. From The Times Argus:

The Adam Walsh Child Protection and Safety Act, passed by Congress in 2006, seeks to unify Internet registry standards across all 50 states. Vermont would have to overcome a number of logistical hurdles in order to comply, lawmakers say.

But the new act has also spawned a philosophical debate about which offenders belong on the publicly accessible Internet sex offender registry.

"I think it's a good idea to have a uniform system, and I support the idea in principle," said Sen. Richard Sears, D-Bennington, chairman of the Senate Judiciary Committee. "But we believe this thing is a little more complex than what first met the eye, and we're going to have to take a hard look at whether we should comply, given that it may cost millions to do so."

Vermont has about 2,400 sex offenders on its statewide registry, but only about 400 meet the threshold required to land on the more public Internet registry. Under the Adam Walsh Act, all 2,400 offenders would likely appear online, because federal guidelines use an "offense-based" classification system to assess risk into a three-tier hierarchy.

Anyone convicted of those crimes – even non-contact mis-demeanors – would appear on the registry for anywhere from 15 years to life, depending on the offense.

Vermont, conversely, uses a "risk-based" system that relies on a number of different criteria. And lawmakers and policy makers have thus far reserved the Internet registry for only the more serious offenders.

"I think the committee is in agreement that we ought to expand the Internet registry, but I think it's going to be up to the Legislature, the administration, and perhaps ultimately the courts to decide whether we can comply with this federal act," Sears said.

The Vermont Department of State's Attorneys and the office of the Defender General have said an expanded registry could lead to millions of dollars in additional legal costs for the state, mainly because offenders would prove less amenable to plea deals if the conviction meant a slot on the Internet sex offender registry.

The office of the Defender General estimated it would need an additional $1.8 million if the new registry standards were enacted. The Department of State's Attorneys pegged first-year costs at more than a half-million dollars.

An official from the Department of Public Safety, which oversees the registry, said the state is capable of meeting the new federal requirements, but that would necessitate two additional employees and new computer software, estimated to cost a total of $350,000 in the first year.

The federal guidelines also require more detailed information on the offenders, including their street addresses, the addresses of their employers, their license-plate numbers and descriptions of their vehicles.

Juvenile offenders as young as 14 also would qualify for the Internet registry for extreme offenses.

"The question ought to be what makes sense for Vermont and how far do we go?" Sears said. "Should people who had a statutory rape conviction be on there for life? Or someone who committed a non-contact offense? These are some of the issues we need to think about."

H/T: Sentencing Law & Policy.

Sex Offender Held for Being Homeless

A Vermont sex offender who was set to be released from prison has been charged with a probation violation because he his homeless. From The Bennington Banner: 

A sex offender set to be released from prison on Sept. 20 was charged with a violation of probation in Bennington District Court on Tuesday because he does not have a residence.

Public Defender Frederick Bragdon said [the man] was not intentionally flaunting the probation system, saying his client simply was unable to find a residence.

"Inability is not willfulness," Bragdon said.

Bragdon said his client had been incarcerated for a year, and that he did not have family or other connections upon which he could rely.

Judge John Wesley said he had to "stretch" to find probable cause in the case, and indicated his concern about the matter.

"([The man]) is conceivably being set up to fail by having no place to stay," Wesley said. "This is going to require significant social work on the part of the Department of Corrections that work, this split sentence could turn into an indefinite prison term."

According to an affidavit by Probation Officer David Jankowski, [the man] was given a 18 month- to 5-year sentence, all suspended except for one year, in September 2007 on three counts of lewd and lascivious conduct with a child.

Jankowski said [the man] served his one-year minimum, and had been scheduled to be released on Sept. 20, but said [he] was unable to find a residence in the community.

Jankowski said in the affidavit that supervision of a homeless sex offender is not an ideal situation, and that there is the potential for a community risk issue.

Around the Web

Sentencing Law and Policy points out an article from the Atlanta Journal-Constitution discussing the broad reach of sex offender residency restrictions.  The article tells the story of a woman who, at age 17, oral sex with a 15-year-old male classmate.  The woman is now subject to Georgia's strict residency restrictions that say an offender cannot live within 1,000 feet of places where children congregate. It's yet another case illustrating that all "sex offenders" are not equal.

A former middle school coach in California, who was convicted of sexual conduct with underage girls, is "arguing for a review of his case, saying he was not advised that he could face almost 200 years in prison before becoming eligible for a parole hearing."  The man, now 26, had sexual encounters with several teenage girls when he was 18 to 20 years old. He was sentenced to two consecutive 15-years-to-life terms and two dozen concurrent life terms.

The Washington Post has an article discussing a new bill in New York that would divert young girls arrested for prostitution to social programs rather than punishing them. While the age of consent in New York is 17, there is no minimum age for charges of prostitution. Some suggest that social services are the best way to treat these youths while others argue treatment programs should only be completed if they are part of the legal process.

Crime and Consequences reports that (according to this New York Times article), "85 Republican members of the House of Representatives have requested that the Supreme Court reconsider its decision in Kennedy v. Louisiana to ban the death penalty for child rape." The request was prompted by the revelation that the military permits the death penalty for child rape, which is contrary to the majority's statement that no federal jurisdiction permits it.

Vermont Lt. Gov. Brian Dubie recently called on state lawmakers "to convene in a special session next month to pass new laws cracking down on sex offenders, proposing a 25-year mandatory minimum prison term and other measures."  Not everyone agreed with Lt. Gov. Dubie's proposals however.   “Long mandatory sentences make us feel really good, but they really do very little to keep people safe from sex offenders,” said Karen Tronsgard-Scott, director of the Vermont Network Against Domestic and Sexual Violence.

Around the Web

After more than a decade of rumors and innuendo, "DNA tests have reportedly cleared the family of JonBenet Ramsey of involvement in the 6-year-old Colorado beauty queen's murder in 1996."  Boulder County District Attorney Mary Lacy said the tests point to an 'unexplained third party' and that prosecutors don't consider any member of the Ramsey family a suspect.  The DA also apologized in a letter to the girl's father, John Ramsey, for any role that her office may have played in contributing to "the public perception that you might have been involved in this crime."  The Associated Press, TalkLeft and Crime and Consequences have more.

Although the State of Vermont has not sentenced anyone to death in more than 50 years, the man charged with abducting a 12-year-old girl "could become the second Vermonter to end up on federal death row in recent years."  Vermont Law School professor Michael Mello, who is an expert on the death penalty, noted it could be the first time federal prosecutors seek the death penalty using changes to federal law included in the Adam Walsh Act of 2006.  According to Mello, "[w]hat the Adam Walsh amendment was intended to do, in effect, is to make virtually any kidnapping with death resulting a federal capital offense."  Federal prosecutors allege that the girl's uncle is responsible for the abduction.

Wisconsin necrophiliacs beware, the state Supreme court held today that the state's rape law bans sex with dead bodies.  According to the majority opinion, "a reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person."  Two dissenting justices said the law was intended not to ban necrophilia but to permit rape charges when the victim was also murdered. An attorney for one of the defendants' notes that the charges have yet to be proven. For more, see the Associated Press article. If the subject weren't so completely distasteful, the fact pattern would present a nice Criminal Law exam question illustrating differing approaches to statutory interpretation.

The National Review has several new editorials online concerning the recent Kennedy decision.  One by Andrew C. McCarthy is entitled: Some Evolution: The fraudulent 'consensus' behind the Supreme Court's child-rape ruling.  Another by Anthony Dick is entitled: Constitutional Torture: Standard judicial malpractice.

Civil Commitment in Vermont

Lawmakers are considering a statute which will make institutionalization of offenders easier in Vermont:

Buoyed by the possibility of getting federal grants to support civil confinements, three lawmakers said Thursday they will press the Legislature to pass a law calling for some sex offenders to be locked up indefinitely.

Rep. Kurt Wright, a Republican from Burlington, said the civil confinement proposal would apply to those currently in the Vermont corrections system and nearing the end of their sentences without completing sex-offender treatment.

The proposal, similar in some respects to ones floated by the Douglas administration in recent years, drew renewed skepticism Thursday from Democrats.

House Speaker Gaye Symington said the state should not put its trust in hopes for federal grant money when Washington is reeling with deficits "up to the moon."

The motivation for the move is interesting.  If federal grant money supplements public fear as a reason for lawmakers to expand civil commitment for sex offenders, that could be a potent combination in other states as well.'

HT: Corrections Sentencing