Friday, June 30, 2017

Wisconsin cities sued over residency restrictions

Several cities in southeast Wisconsin face lawsuits over harsh residency restrictions that make it difficult, if not impossible, for registered sex offenders to find a place to live.

The plaintiffs' attorneys, Adele Nicholas and Mark Weinberg, have already won one lawsuit against restrictions in one town, and hope to force others to change or repeal their ordinances.
The attorneys argue the vast child safety zones municipalities have adopted constitute banishment, and that banishment is unconstitutional.
Read more about the Wisconsin lawsuits here.

Whether courts ultimately hold residency restrictions to be constitutional or not, remember they are bad public policy.

Thursday, June 29, 2017

After Packingham, will Supreme Court take up Does v. Snyder?

After the U.S. Supreme Court ruled a North Carolina law prohibiting registered sex offenders from accessing many popular social media sites, including Facebook and Twitter, will the court take up a case involving other restrictions imposed by states on registered citizens? 

Writing for Bloomberg News, Jessica DaSilva says Arizona State University Law Professor Ira Ellman thinks a sentence tucked into the majority decision in the Packingham case, written by Justice Anthony Kennedy, could signal the court's intent to hear Does v. Snyder.
Parenthetically, Kennedy wrote: “Of importance, the troubling fact that the law imposes severe restrictions on persons who already have served their sentence and are no longer subject to the supervision of the criminal justice system is also not an issue before the Court.”
The word “troubling” indicates that the court might be willing to grant certiorari on the issue of sex offender restrictions, Ellman said.
The 6th Circuit Court of Appeals found many of Michigan's restrictions are unconstitutionally applied to citizens who have completed their sentences. Michigan has asked the Supreme Court to review the case. Stay tuned...

Wednesday, June 28, 2017

Missouri Supreme Court backs civil commitment

The Missouri Supreme Court has upheld the state's program that allows for the indefinite detention of sex offenders. The 6-0 decision, in separate cases involving two men, is reported in the St. Louis Post-Dispatch.
A public defender for the men had argued their commitments were punitive, meant lifetime confinement and amounted to second punishments after they already served time in prison. The attorney, Chelsea Mitchell, said that meant her clients’ rights to due process, equal protection and a fair trial were violated.
But judges wrote that “this entire collection of arguments has been rejected in the past,” and reaffirmed the law.
A federal judge ruled in 2015 that the way the state applied the law was not constitutional.

Read the full story here.

Wisconsin court says GPS monitor not punishment

A Wisconsin court has ruled that lifetime GPS monitoring is not punishment.

Paul Strubas writes for the Green Bay Press-Gazette.
Oh, I'm sure they suck. They might chafe. They could cause blisters. They will cramp your style, keep you out of swimming pools, cause a funny-looking bulge in your nylons, spoil your suntan, tether you to a power source for an hour a day.
They’ll subject you to derision — or worse. And they’re an enormous invasion of your privacy: Someone will always know where you are, and if you take off the monitor, they’ll come after you.
But a monitoring bracelet is not punishment. The state court of appeals says so.
 Read the full article here.

Report from NARSOL National Conference

The National Association for Rational Sex Offense Laws (NARSOL) held its annual conference June 2-4, 2017, in Atlanta, Georgia.

NARSOL’s ninth conference: Building a Foundation for Effective Advocacy 
A recap from Sandy, NARSOL Communications Director 

The National Association for Rational Sexual Offense Laws (NARSOL) Conference guests enthusiastically received information and current legal perspectives from four leading attorneys who are currently engaged in litigations at the federal level that pose immediate or pending outcomes which will directly impact the status of registration requirements in all or many states in the nation. 

Attorneys Phil Telfeyan and Miriam Aukerman teamed together on Friday morning to present Protecting Constitutional Rights in the Federal Courts. Drawing from their recent experiences with important Circuit-level cases (Telfeyan in McGuire v. Strange, Alabama; Aukerman in Does v. Snyder, Michigan), attendees were provided specific insight into the way these cases were developed from the start and how the current approach to sex offender registry challenges are evolving as a consequence. 

On Friday afternoon, the main speaker was Dr. Melissa Hamilton, an attorney and criminologist who shared how to handle the junk science that drives the concern about sex offender risk.  

The conference felt as though it had moved to North Carolina on Saturday as guests were thrilled by two separate feature presentations from attorneys who have met with remarkable success representing clients in the Tarheel state challenging conditions of its sex offender registry. 

Attorney and current Chief Appellate Defender for the state of North Carolina Glenn Gerding’s presentation entitled Beating Back Banishment and Big Brother was surprising in that it focused less on Packingham v. North Carolinaand more on his extensive involvement in registration issues going back to his days as a court-appointed attorney handling indigent cases in Superior courts. Gerding encouraged NARSOL’s members and supporters to continue organizing and expanding the growing network of associated attorneys and legal resources to press the fight against unconstitutional civil rights violations imposed by sex offender laws. 

On Saturday afternoon, Attorney Paul Dubbeling captured his audience with a passionate, articulate plea for attacking the presumption of false facts that district attorneys and state attorneys general have relied upon for more than a decade by focusing on the more than twenty years of data already available in every state providing positive proof of low recidivist rates among their registered populations. Dubbeling presented A Matter of Fact: Recidivism Rates, Current Jurisprudence, and the Need for Fact-based Litigation which envisions a legal strategy of forcing states to rethink their reliance on dubious facts and pressing judges at the state and federal level to stop relying on studies from one party or another but to focus, instead, on the relevant data already available through a statistical assessment of a state’s very own sex offender registry–data that overwhelmingly represents rates of recidivism that are low and unremarkable. “These ARE the facts. Now let’s discuss what they mean,” repeated Dubbeling several times throughout.  

Interspersed and inserted throughout the five feature presentations were 31 hours’ worth of nuts and bolts workshops on topics ranging from how to start an affiliate organization to how to keep from going completely insane while doing it. By Sunday afternoon the conference was over and attendees from states throughout the nation had embarked on their journeys back home. 

Notes from Nebraskans Unafraid members in attendance: 

In addition there were many breakout sessions: 

Storytelling to get change. Often a true story about you or someone else makes the point far better than just quoting statistics. We heard true stories woven to demonstrate various facts. 

Building relationships in the Legislature.   

Building an effective organization. Both Texas Voices and Illinois Voices gave presentations on how to increase our impact on the legislative process and help each other through Fearless. 

Use low hanging fruit challenges to make small changes that build over time. 
Sunday morning the last breakout was a worship service “Finding a place to worship”. After the service, we listened to stories of men restricted or banned from their church, with the bottom line given, if your church is not able to accept you “MOVE ON” – there are plenty of churches that follow Jesus’s teaching and minister to those in need not those who have everything all together. 

All the sessions have been recorded and will be available to listen with a NARSOL membership.  If you cannot get them on your computer, call Nebraskans Unafraid (402-403-9250) to find a place to watch. We recommend the recording of Paul Dabbling’s presentation, “Need for fact based Litigation”.  He so organized, listing the bullet points and explaining in laymen’s terms many of the lawyer’s terms. 

As we left the conference we were so encouraged. There are so many advocates working tirelessly on many avenues to get the overreaching and onerous registry abolished.  

Saturday, June 24, 2017

Defendant takes longer prison term in attempt to avoid registry

The Tennessean reports that former Vanderbilt University football player Brandon Banks, one of four charged in the rape of a fellow student, turned down a plea bargain and opted to go to trial...in an attempt to avoid the sex offender registry. The deal offered by prosecutors reportedly included a 10-year prison term, versus the 15-to-25 years he will serve after he was found guilty.
Going to trial was worth the risk of a longer prison term, defense lawyer Mark Scruggs said, because Banks hoped to avoid a lifetime position on the state's sex offender registry.
"He turned it down because he decided 10 versus 15 was not as important as being under supervision and being on the registry for the rest of his life," the lawyer said. 
"That's like being in prison itself. He wanted to the opportunity to someday to get off that thing. And they would not give it to him, even though he’s not a threat."
Risking a considerably longer prison sentence to avoid the registry? Even the judge in the case seems to agree the list is punitive.
“All of the defendants in this case basically have life sentences,” the judge said on July 14 as he sentenced another ex-football player, Cory Batey. “After they get out of jail or prison they will be on the sex-offender registry for the rest of their lives. That’s a life sentence in and of itself.
The sex offender registry has been sold over the years as a civil regulation, meant to protect the public, and not a form of punishment. Does anybody now reasonably believe that is actually the case?

The Sex Offender: the 21st Century Witch

Writing for Counter Punch, author David Rosen says that "sex offenders" are to 21st century America what "witches" were to Puritan New England.
Who is a sex offender?  Where is the line drawn between the sexually acceptable and the immoral, let alone the illegal?  Is it a boundary not fixed, but a terrain of social struggle that shifts over time?
A “sex offense” is sometimes real, involving an innocent person being sexually – physically and psychologically — harmed by an offender.  Too often the victim is a loved-one or a young person.  Sometimes the offense is imaginary, the cyber fiction of an online experience, including “unacceptable” – if faked — pornography like rape and pedophile phantasies.  And sometimes it a misunderstanding or mix-message, a failure in communications that leaves one participant a grieved person.
 Read the full editorial here.

Friday, June 23, 2017

LA Times: Clearer thinking on sex offender registries

The Los Angeles Times cites the Supreme Court's recent Packingham decision and California's move toward a tiered registry as a potential sign that the days of sex offender hysteria are waning.
After years of panicked and excessively punitive lawmaking against sex offenders, cooler heads are beginning to prevail. 
If that is the case, it's well past time.

Read the LA Times' editorial here.

Thursday, June 22, 2017

Couple convicted in "satanic day care" case exonerated

Nearly 25 years after being convicted of sexually abusing children at their home day care facility, a Texas couple has been fully exonerated. The Travis County District Attorney filed papers to declare Dan and Fran Keller "actually innocent, which will allow them for collect payment from the state for their wrongful conviction.

Jordan Smith writes about the Keller's case for the Intercept.
Contrary to what many people might think, you don’t have a right not to be convicted of a crime you did not commit. For the most part, the Constitution is silent on this point. Instead, the focus is on whether a person received a fair trial. Did you have at least minimally competent lawyers? Were you afforded the ability to cross-examine witnesses against you? If so, then your conviction — even for a crime that never happened — should stand. Once a person is convicted, the system works only to reinforce that outcome. That remains the reality for untold thousands who sit innocent behind bars today.
Read more here.

Cato: Even sex offenders have constitutional rights

Now that the Supreme Court has ruled North Carolina's law banning registered sex offenders from social media cites unconstitutional, the Cato Institute says the Court should take up a challenge to Minnesota's civil commitment program.
In 1994, Minnesota passed what has become arguably the most aggressive and restrictive sex-offender civil-commitment statute in the country. The Minnesota Sex Offender Program (MSOP) provides for the indefinite civil commitment of “sexually dangerous” individuals, over and beyond whatever criminal sentence they may have already completed. 
In more than 20 years, only one person has been fully released from the MSOP. Read more of the Cato Institute's commentary here.

Wednesday, June 21, 2017

Sexting scam targets Iowa men

The Des Moines Register reports on a sexting scam that the Iowa Department of Public Safety says has targeted some men in Iowa.
The scam starts by an alleged woman contacting a man through an online dating app or website. Within days, the woman says they should start texting. The texting then turns sexual and includes the exchange of nude photos and plans to meet in the future, according to IDPS.
After the male victim receives the photo of the woman, he is then called by a person claiming to be a part of Iowa's Internet Crimes Against Children Task Force. The scammer tells him the woman is underage and there is now child pornography on his phone.
Full story here.

Washington Post fact checks Alito's SO recidivism claim

The Washington Post has awarded three Pinocchio's (out of four!) to Justice Samuel Alito's sex offender recidivism claims, included in his concurring opinion in the Supreme Court's Packingham decision. Alito cites the common misconception that sex offenders are "much more likely than any other type of offender to be rearrested for a new rape or sexual assault," a claim the paper calls misleading.
This opinion cites previous opinions that use outdated data going back to the 1980s — more than 30 years ago. Moreover, it obscures the fact according to 2005 data, the percentage of sex offenders getting rearrested for the same crime is low compared to non-sex offenders, with the exception of people convicted of homicide. It does the public no service when the Supreme Court justices make a misleading characterization like this. 
Read the analysis at the Washington Post.

Monday, June 19, 2017

North Carolina sex offender social media ban ruled unconstitutional

In a unanimous and decisive ruling, the U.S. Supreme Court has struck down a North Carolina law that banned registered sex offenders from using many popular social networking sites, including Facebook and Twitter.

Read about the decision here.

Read the decision, written by Justice Kennedy, here.
Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind....By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno, 521 U. S., at 870.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences. Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives

NARSOL seeks stories of Registered Humans

National RSOL has launched a new project, Registered Humans.


From the NARSOL website:
As advocates, we are daily faced with stereotypes of “sex offender” that are completely inadequate to show the broad range of persons who are required to register. These stereotypes create monsters instead of flawed human beings trying to turn their lives around. This flawed public opinion is at the root of our flawed laws and also creates huge challenges for persons on the registry, who often feel hopeless and alone.
Registered Humans is an opportunity for persons who are on the registry to show their better side — their humanity — and share how they have built new lives for themselves, found support, and overcome many hurdles.
We encourage people on the registry from all walks of life who have been offense free for a year or more to participate in the Registered Humans project by writing a short “snapshot” of their life: the contribution they make to society; their family life; what brings them happiness now; and their accomplishments, hopes and dreams. Our goal is to provide encouragement to other registrants and break the stereotypes that hold registrants down. We hope such stories will help outside readers see who people on the registry really are and at the same time help other registrants who might benefit from their journey and vision for the future.
We will screen and post the stories that seem to most advance the goals of the project. All stories must include either a full or partial true name and a candid photo. The reason for this is that we are hoping this will be just phase one of the Registered Humans project. Phase two would involve creating video vignettes which are used as public service announcements.
To learn more or to share your story, please go to humans.narsol.org.

Sunday, June 18, 2017

Fearless Monday

Join the discussion at June's Fearless meeting, Monday, June 19, at 7:00 p.m., at St. Michael's Lutheran Church, 13232 Blondo St. in Omaha.

We'll discuss challenges facing registered citizens and their families, including finding affordable and adequate housing in the face of property managers and landlords unwilling to rent to sex offenders...and residence restrictions that make certain areas off-limits to some.

Fearless is for registered citizens, their families and friends, to connect and offer support and guidance. 

Please join us Monday night!


Thursday, June 15, 2017

Kids shouldn't be subject to registry (neither should adults)

Christina Delgado, in an op-ed for The Hill, writes that recent legislation passed by the House of Representatives would unnecessarily criminalize youthful behavior, and should be rejected by the Senate.

The stated purpose of the bill -- H.R. 1761, the Protecting Against Child Exploitation Act -- is to "protect children from sexual exploitation by criminalizing 'the knowing consent of the visual depiction, or live transmission, of a minor engaged in sexually explicit conduct.'"

 The penalty under the law is a mandatory 15 year prison sentence. Delgado, and others, point out that means that minors caught texting explicit images of themselves to a friend could face a mandatory 15 year prison sentence. She says that over-criminalization should be rejected.
With zealous lawmakers at the ready, overcriminalization continues to pose a threat to our society and freedoms. Injecting government into every aspect of our lives fails to promote public safety; instead, it continues to burden our justice system with problems our communities are responsible to solve. H.R. 1761, unfortunately, threatens children and their future....It is vital that the Senate reject this legislation. 
Read Delgado's op-ed at The Hill.

Polygraph therapy scrutinized in child porn case

Courthouse News Service reports on a case in New York that's drawing scrutiny to the use of so-called "therapeutic polygraphs" for sex offenders.

Richard Llanga Moran challenged the use of the polygraph as a condition of his supervised release.
The therapist he meets with regularly has found Llanga Moran “forthcoming and engaged in sessions,” but prosecutors want a so-called lie-detector test to determine whether Llanga Moran has accepted responsibility for his crime.Llanga Moran drew the government’s skepticism with his insistence that there is an innocent explanation for the start to his habit. He said he had been trying to download Madonna’s “Like a Virgin” on a file-sharing service, when he stumbled upon the pornography that he found “morbidly intriguing” rather than sexually arousing.Assistant U.S. Attorney Drew Rolle wants a court-ordered polygraph, but U.S. District Judge Kiyo Matsumoto appeared reluctant to grant such relief on June 13 after putting a psychiatrist, a probation officer and several attorneys in the hot seat at a three-hour hearing.
Read more about the case at Courthouse News Service.

Wednesday, June 14, 2017

A look at some of the issues involving Luke Heimlich

An outstanding, thorough, article written by Kerry Eggers of the Portland Tribune.

Oregon State's No. 1-ranked baseball team worked out Tuesday in Corvallis, preparing for its Thursday trip to Omaha, Nebraska, and a date with Cal State Fullerton in the College World Series — likely without pitcher Luke Heimlich.
The Beavers and Titans will open the double-elimination tournament at noon PT Saturday at TD Ameritrade Park Omaha.
OSU dispatched of Vanderbilt in two games in last week's Super Regional at Goss Stadium, despite issues involving Heimlich.The junior left-hander from Puyallap, Washington, hasn't played for the 54-4 Pac-12 champions since an OregonLive report last week revealed he had been convicted of sexual abuse of a minor girl as a 15-year-old in 2011.
The university issued a statement from Heimlich before Friday's series opener against Vanderbilt. In it, Heimlich said he asked to be excused from playing "at this time."
Will Heimlich be available to play with Oregon State's team at the College World Series? Will he accompany the team to Omaha?OSU coach Pat Casey said Monday night that he did not know the answer to those questions. But it seemed highly doubtful that Heimlich would accompany the team and be in uniform as his teammates gun for the national championship.
Casey expressed his feelings to the Portland Tribune about the Heimlich matter and his player.
"I feel horrible about the whole situation," the OSU coach said. "It's heartbreaking to me. I feel terrible for everybody involved, particularly the little girl. I would never not have sensitivity to any victims. I want to see people healed over this thing."
Of Heimlich, a 3.3 student majoring in communications and political science, he said after Friday's Super Regional win over Vanderbilt: "For every second he has been on this campus, on and off the field, he has been a first-class individual."
After interviews by the Tribune with several experts in the field of juvenile sex abuse, here is a look at some of the issues relating to Heimlich's case and others like it:
Read Eggers' full article online in the Portland Tribune.

Read more commentary here and here.


Update: Luke Heimlich will not accompany Oregon State to Omaha for the College World Series.


Monday, June 12, 2017

Updated: Relief from registration requirements in all 50 states

The National Association of Criminal Defense Attorneys, through its Restoration of Rights Project, has updated its comparison of relief from sex offender registration obligations in all 50 states.

Courtesy of the Collateral Consequences Resource Center, check out the list here and here.

Wednesday, June 7, 2017

Report: Examining Sex Offenders Under Federal Post-Conviction Supervision

A new report backs up the low sex offender recidivism rates.

The report, looking at sex offenders under federal post-conviction supervision, was written by Social Science Analyst Thomas H. Cohen and Probation Administrator Michelle Spidell, of the Federal Probation and Pre-Trial Services Office.

The report found that generally those convicted of sex offenses scored lower on the Post Conviction Risk Assessment and recidivated less frequently than those convicted of non-sex offenses.

Among sex offenders, those under supervision for sexual assault were arrested or had their probation revoked at the highest rates, while those under supervision for child pornography offenses had lower recidivism rates.

Click here to read the report.

Monday, June 5, 2017

Supreme Court asked to review Illinois sex offender case

Lawyers for an Illinois man are asking the U.S. Supreme Court to review his case to determine the constitutionality of that state's law requiring registered sex offenders to report all Internet activity to authorities.
In a petition filed with the nation's highest court, lawyers for Mark Minnis, 24, are asking for a review of whether offenders' First Amendment rights are violated by a requirement that they report all internet activity to police who then disclose that information to the public.
Minnis was 16 when he was deemed a delinquent juvenile in 2010 for having sex with a 14-year-old girl. He was required to register as a sex offender for 10 years for criminal sexual abuse, a misdemeanor offense.
In August 2014, Minnis was charged with failure to register as a sex offender, a felony, after he failed to include a previously disclosed Facebook account on a registration form.
A judge initially dismissed the charges and ruled the law unconstitutional, but the Illinois Supreme Court reversed that decision last year.

Read more about the case here.

Sunday, June 4, 2017

Task Force Examining Illinois Sex Offender Laws

A task force in Illinois is examining the state's sex offender registration laws, and will be making recommendations for changes at start of next year.

This article in the Pantagraph newspaper of Bloomington, Illinois, quotes one task force member, McLean County Attorney Jason Chambers.
The use of evidence-based practices to create a system that protects the public without unnecessarily adding to what have been described as draconian registration guidelines could assist lawmakers and others with their efforts, said Chambers.
"We've been using evidence-based practices in the criminal justice system reforms, but I'm not sure we've ever applied them to sex offender registration," said Chambers.
Considering the low sex offender recidivism rates, maybe other states will begin reassessing their sex offender registration laws. 

Thursday, June 1, 2017

When autism, child pornography, and the courts collide

Are people with autism over-represented among those prosecuted for possession of child pornography? 

In an investigation for the Marshall Project, Anat Rubin spoke with autism experts and family members of men who have been prosecuted who are convinced that autism made their loved on more susceptible to downloading child porn. 

Rubin followed the ordeal of one family.
The events unfolding in Joseph’s home—the SWAT team, the stunned parents, the vast collection of child pornography on a hard drive—have become increasingly familiar to autism clinicians and advocates. They are part of a troubling and complex collision between the justice system and a developmental disability that, despite its prevalence, remains largely misunderstood in courts across the country.
The result for defendants can be the crushing impact of a system that clinicians say confuses autistic behavior with criminal intent and assumes, without hard evidence, that looking at images could be the precursor to illicit and dangerous contact with kids.
Rubin says of the investigation, that it
throws into question some of our assumptions about men who are caught with images and videos of child sex abuse, and sheds light on the ways in which the criminal justice system is struggling to understand autistic defendants.
Read the full report at the Marshall Project.