National Law Journal: Challenges Grow Over Sex Offender Laws
The following story (subscription required) appeared in the Monday June 9th edition of the National Law Journal:
Challenges grow over sex offender laws
Welter of confusion over restrictions.
Pamela A. MacLean / Staff reporter
June 9, 2008
The creation of complex sex offender registration systems and increasingly stringent limits on where offenders may live has spawned hundreds of legal challenges in state and federal courts throughout the nation.
The actions range from how long electronic tracking devices must be worn to whether juvenile records must be part of public registrations.
Challenges to the new laws — often hastily passed in the wake of a brutal crime — generally center on battles over who must comply, making retroactivity and prospective treatment crucial.
Takings claims under the Fifth Amendment of the U.S. Constitution also weigh heavily when a sex offender is forced from a long-time home by newly imposed bans on living near playgrounds or video arcades.
So far, 20 states hav e laws restricting where sex offenders can live, and hundreds of cities have their own limits, according to Wayne Logan, a criminal law professor at Florida State University College of Law in Tallahassee.
The most common laws banish offenders from zones within 2,000 feet of schools and parks.
The Georgia Supreme Court recently struck down a residency restriction on Fifth Amendment grounds, but upheld a portion that barred sex offenders from working in the restricted zones, Logan said. Mann v. Georgia Dept. of Corrections, 282 Ga. 754 (2007).
The California Supreme Court must choose from a raft of theories on how to apply a 2006 voter-approved residency law prospectively. So far, the plaintiffs, the state attorney general, local district attorneys, the governor and state prison officials have all weighed in with different positions. In re E.J. habeas corpus, No. S156933 (Calif.).
Ohio's legal meltdown
But it is Ohio that finds itself in the midst o f a legal meltdown because of a shift in sex offender registration law. Ohio rushed to switch from a long-standing state offender registration program to the 2006 federal Adam Walsh Child Protection and Safety Act registration system.
More than 26,000 people, including juveniles, were reclassified as sex offenders and ordered to register for a public list for up to 25 years. This spawned a federal class action challenge over timing of public notification, and a limited restraining order issued in Doe v. Dann, No. 8-cv-220PAG (N.D. Ohio). Also, thousands of individual state challenges to reclassifications are pending.
Many of those reclassified are indigent or in prison. Local counties won't pick up the tab for lawyers in what is considered a civil dispute, said Jay Macke, who leads the efforts for the Ohio Public Defenders Office. "We don't have enough indigent defense counsel to cover this," he said. But for those who can afford private lawyers, "this is a lawyer ful l-employment act," he said.
On May 9, a Cuyahoga County judge found that the Adam Walsh Act's retroactive reclassification violated both the Ohio Constitution's retroactivity clause and ex post facto protections. Evans v. Ohio, No. cv-08-646797. Several other appeals are pending, but ultimately the issue will go to the Ohio Supreme Court, the judge said.
The Adam Walsh Act, among other things, creates a national sex offender registry. It also restricts where an offender may live and allows civil psychiatric commitment of offenders.
The act also compels states to enact similar laws by mid-2009 or face loss of federal law enforcement funds. For states that quickly adopt the law, there is promise of a 10% bonus on federal funds.
The financial incentives amount to an "imaginary carrot and an imaginary stick," Macke said. Ohio received no reward for acting early, and now it appears that the money will be slashed from the federal budget anyway, he said.
Most courts have permitted laws restricting where sex offenders may live, according to Corey Yung, an assistant professor of criminal law at The John Marshall Law School in Chicago, who has written extensively on sex offender law. Battles now center on whom they apply to and under what conditions.
The 8th U.S. Circuit Court of Appeals approved residency restriction laws in Arkansas and Iowa, but the Iowa law was so onerous that most sex offenders were forced to live in cars, cemeteries or abandoned houses. Once homeless, they stopped registering. This prompted the Iowa County Attorneys Association and Iowa sheriffs in 2007 to petition the legislature to repeal the law as "counterproductive." The legislature refused.
"Legislators did such a good job of selling the idea that the restrictions on residency was a safety measure, people have the false idea it provides safety and politicians fear going against that," said Corwin Ritchie, executive director of the Iowa Count y Attorneys Association.
Florida had 60 cities in one year adopt restrictions and in 2005 some banned sex offenders from public hurricane shelters, forcing them to go to local prisons during storms.
"A lot of these people are becoming homeless — it is becoming a real problem where they can live," said Ronald Chapman, a criminal defense lawyer of West Palm Beach, Fla.'s Chapman Law Firm. Registration now includes putting the sex law violation on the driver's license.
California's voter-approved law also has conflicts with a sweeping legislative reform of sex offender residence limits that the state Supreme Court will have to sort out.
The voters' version, Proposition 83, bars sex criminals from living within 2,000 feet of a park or school, and offenders who complete prison terms must also wear global positioning devices for the rest of their lives.
In two federal court challenges to the same state initiative, one held the California residence restr ictions could not be applied to a prisoner released before the law's passage. Doe v. Schwarzenegger, No. C06-2521LKK (E.D. Calif.). The other held that it did not apply to a sex offender who served 12 years' probation before the act's adoption. Doe v. Schwarzenegger, No. C06-6968JSW (N.D. Calif.).
But those federal rulings are not binding on the state court, said Janet Neeley, deputy attorney general in charge of the sex offender registry in California.
"Nothing is cleared up," she said. "There are no California cases published on the point, and we don't even know who the law applies to," she said. So far the law has not been enforced because of the questions about who is covered under the "prospective" application. The initiative also failed to create a misdemeanor crime for violation, Neeley said. "There is no way to punish anyone, unless they are violating parole or probation."
And the Adam Walsh Act faces federal constitutional challenges. Two federal circu it courts, the 4th Circuit and the 11th Circuit, are now considering whether Congress violated the Constitution's commerce clause in passing the Adam Walsh Act because challengers allege it has no nexus with interstate commerce. U.S. v. Comstock, No. 06-hc-2195BR, and U.S. v. Powers, 07-cr-221KRS.
Pamela A. MacLean
California Bureau Chief
National Law Journal
Challenges grow over sex offender laws
Welter of confusion over restrictions.
Pamela A. MacLean / Staff reporter
June 9, 2008
The creation of complex sex offender registration systems and increasingly stringent limits on where offenders may live has spawned hundreds of legal challenges in state and federal courts throughout the nation.
The actions range from how long electronic tracking devices must be worn to whether juvenile records must be part of public registrations.
Challenges to the new laws — often hastily passed in the wake of a brutal crime — generally center on battles over who must comply, making retroactivity and prospective treatment crucial.
Takings claims under the Fifth Amendment of the U.S. Constitution also weigh heavily when a sex offender is forced from a long-time home by newly imposed bans on living near playgrounds or video arcades.
So far, 20 states hav e laws restricting where sex offenders can live, and hundreds of cities have their own limits, according to Wayne Logan, a criminal law professor at Florida State University College of Law in Tallahassee.
The most common laws banish offenders from zones within 2,000 feet of schools and parks.
The Georgia Supreme Court recently struck down a residency restriction on Fifth Amendment grounds, but upheld a portion that barred sex offenders from working in the restricted zones, Logan said. Mann v. Georgia Dept. of Corrections, 282 Ga. 754 (2007).
The California Supreme Court must choose from a raft of theories on how to apply a 2006 voter-approved residency law prospectively. So far, the plaintiffs, the state attorney general, local district attorneys, the governor and state prison officials have all weighed in with different positions. In re E.J. habeas corpus, No. S156933 (Calif.).
Ohio's legal meltdown
But it is Ohio that finds itself in the midst o f a legal meltdown because of a shift in sex offender registration law. Ohio rushed to switch from a long-standing state offender registration program to the 2006 federal Adam Walsh Child Protection and Safety Act registration system.
More than 26,000 people, including juveniles, were reclassified as sex offenders and ordered to register for a public list for up to 25 years. This spawned a federal class action challenge over timing of public notification, and a limited restraining order issued in Doe v. Dann, No. 8-cv-220PAG (N.D. Ohio). Also, thousands of individual state challenges to reclassifications are pending.
Many of those reclassified are indigent or in prison. Local counties won't pick up the tab for lawyers in what is considered a civil dispute, said Jay Macke, who leads the efforts for the Ohio Public Defenders Office. "We don't have enough indigent defense counsel to cover this," he said. But for those who can afford private lawyers, "this is a lawyer ful l-employment act," he said.
On May 9, a Cuyahoga County judge found that the Adam Walsh Act's retroactive reclassification violated both the Ohio Constitution's retroactivity clause and ex post facto protections. Evans v. Ohio, No. cv-08-646797. Several other appeals are pending, but ultimately the issue will go to the Ohio Supreme Court, the judge said.
The Adam Walsh Act, among other things, creates a national sex offender registry. It also restricts where an offender may live and allows civil psychiatric commitment of offenders.
The act also compels states to enact similar laws by mid-2009 or face loss of federal law enforcement funds. For states that quickly adopt the law, there is promise of a 10% bonus on federal funds.
The financial incentives amount to an "imaginary carrot and an imaginary stick," Macke said. Ohio received no reward for acting early, and now it appears that the money will be slashed from the federal budget anyway, he said.
Most courts have permitted laws restricting where sex offenders may live, according to Corey Yung, an assistant professor of criminal law at The John Marshall Law School in Chicago, who has written extensively on sex offender law. Battles now center on whom they apply to and under what conditions.
The 8th U.S. Circuit Court of Appeals approved residency restriction laws in Arkansas and Iowa, but the Iowa law was so onerous that most sex offenders were forced to live in cars, cemeteries or abandoned houses. Once homeless, they stopped registering. This prompted the Iowa County Attorneys Association and Iowa sheriffs in 2007 to petition the legislature to repeal the law as "counterproductive." The legislature refused.
"Legislators did such a good job of selling the idea that the restrictions on residency was a safety measure, people have the false idea it provides safety and politicians fear going against that," said Corwin Ritchie, executive director of the Iowa Count y Attorneys Association.
Florida had 60 cities in one year adopt restrictions and in 2005 some banned sex offenders from public hurricane shelters, forcing them to go to local prisons during storms.
"A lot of these people are becoming homeless — it is becoming a real problem where they can live," said Ronald Chapman, a criminal defense lawyer of West Palm Beach, Fla.'s Chapman Law Firm. Registration now includes putting the sex law violation on the driver's license.
California's voter-approved law also has conflicts with a sweeping legislative reform of sex offender residence limits that the state Supreme Court will have to sort out.
The voters' version, Proposition 83, bars sex criminals from living within 2,000 feet of a park or school, and offenders who complete prison terms must also wear global positioning devices for the rest of their lives.
In two federal court challenges to the same state initiative, one held the California residence restr ictions could not be applied to a prisoner released before the law's passage. Doe v. Schwarzenegger, No. C06-2521LKK (E.D. Calif.). The other held that it did not apply to a sex offender who served 12 years' probation before the act's adoption. Doe v. Schwarzenegger, No. C06-6968JSW (N.D. Calif.).
But those federal rulings are not binding on the state court, said Janet Neeley, deputy attorney general in charge of the sex offender registry in California.
"Nothing is cleared up," she said. "There are no California cases published on the point, and we don't even know who the law applies to," she said. So far the law has not been enforced because of the questions about who is covered under the "prospective" application. The initiative also failed to create a misdemeanor crime for violation, Neeley said. "There is no way to punish anyone, unless they are violating parole or probation."
And the Adam Walsh Act faces federal constitutional challenges. Two federal circu it courts, the 4th Circuit and the 11th Circuit, are now considering whether Congress violated the Constitution's commerce clause in passing the Adam Walsh Act because challengers allege it has no nexus with interstate commerce. U.S. v. Comstock, No. 06-hc-2195BR, and U.S. v. Powers, 07-cr-221KRS.
Pamela A. MacLean
California Bureau Chief
National Law Journal
In Tennessee now, and I think this is national, a ex-sex offender cannot live in any H.U.D supported housing. It's hard enough just to get work and usually minium wage - for sure an ex would need some assistance! I'm retired myself, so it doesn't really affect me as I fell into the Grandfather clause - if you live in one you don't have to move. Since I got out 12 years ago there have been so many retro active laws enacted, I can't believe it. I did my time and was never advised about all this coming to pass. I'm stuck where I'm at no doubt. Latest laws passed If you are homeless, you have to report in every month- DNA samples will be collected from all - as of 1-2009, a person cant have there name put on the T.B.I register and anytime a ex moves into their neighborhood, the TBI automatically sends them an e-mail. and it goes on and on and on. They might as well paint a target on us. At time being back in prison sounds good in comparisson except I would loose my social security.
First Off, I believe totally that everyone needs to be safe both walking down the street, and in their homes and businesses. Men, Women and Children.
However, we have the United States Constitution, and every state has their own Constitution.
Th U.S. Constitution, and to State constitutions all have in place Articles and Sections which, simply, clearly and overtly state that most of these laws are totally Un-Constitutional and violations.
I know politicians are able to commit crimes and get off free as a bird as they have connections. However, how can they get away with passing these laws which are clearly unconstitutional and harm so many children and families.
North Carolina has taken things a step further and not only made sweeping felony consequences for all after conviction and after time served sex law violations, they now have laws that allow them to force ALL offenders to turn over internet accounts and passwords, email accounts and passwords, and social networking accounts and passwords, for search by Law Enforcement, as well as the companies who operate the sites. And the bill says clearly, "so that companies may kick offenders off their sites".
Now I'm the first person to say that what I did was wrong, however, I am not classified as a violent predator, or any other classification other than being on the registry. That gives me some help from the "Jessica's Law" in NC, but this new law is about as bad as segregation, the Nazis, or Communist China, as far as lawful hate crimes go. Most registered sex offenders do time in prison, come out and only go back in as a result of not being able to be hired, so saying that "we need to tighten down on Sex Offenders" is like saying "we need to wet down our water".
I agree with most of those who disagree with a lot of the extra laws that are coming out in most states now, that they are unconstitutional, immoral, and just plain mean. I wouldn't kick you while you were down, and I wouldn't kill you just because I didn't like you; why don't you do the same for the sex offenders who are trying to obey the law and get back to being productive members of society?!
As I read the news, I see parents are afraid of the sex-offender who lives down the street. I'm not going to say that they shouldn't be concerned, but the person to fear is not the RSO who's done his time an dis now trying, just like you, to make a living - the person to fear is one of those who aren't on the registry who make up the 95% of the new sex offenses. The recidivism for an RSO is the second lowest, only slightly higher than a convicted murder and considerably lower than most all other offense.
Yes, be aware that there are sex offenders among us, but the guy down the street isn't the one you need to be afraid' of; more than 90^of all sex offenses are perpetrated by someone whom the victim knows, not the stranger down the street.
more sex offender laws is just more ignorance.The laws now are over board. what people should do is get informed and not allow any more stupid laws be imposed that dont do any good and causes your taxpayer dollars to be wasted.
dept of justice website shows true statistics
not just hype from uneducated ignorants on a witch hunt. what is the next witch hunt you or your family when you molest a kid or pee on a wall and have to register for life? the ignorant people dont realize rediculous knee jerk reaction laws for politicians to gain office only does harm to america. its dirty and vile to protray such ignorance. anyone can be a sex offender with laws the way they are. and what about the people who are supposed to be protecting you like judges and district attourneys who molest children or any law they break and get away with it because they are above the law. look at these men who worked for dept of homeland security being charged with luering children for sex. this has been a social problem for ever and if it wasnt illegal as it isnt in some places it wouldnt be thought as sick. most men we all know look at young girls sexually even at boys. even the people criticizing others because they feel guilty about what they think about. common sence is needed here because until the next ignorant person gets caught for doing it himself and he or his family member to be ostracized as today this whole witch hunt will get stupider by the day. what then when you get caught. The way the laws are now it is worse for someone to do a sex crime than it is to kill a kid and not molest them, they dont have to even register, how does that look? so the hype and sensationalism train everyone flocks to when one more kid killing happens need to be proportionate and focused on that person. the witch hunt has to stop. more and more people are agreeing every day that the witchunt and scarlet letter has to stop and registration put to a halt with offenders addresses bieng put on websites as it does no good and harms the PEOPLE that dont deserve it anymore. or where innocent all together. some offenders where minors themselves or barely adults. i do agree with high risk offenders get the shaft but not all of the people who ever did a sex crime. after all people are people and make mistakes. doesnt god forgive everyone? even sex offenders, yes he does. People need to stop mutating the label pedophile as a pedophile is a offender who preys on little kids. not every one who does a sex offence. when you or a family member is entrapped into a plea bargain for peeing outside lets say then you will be labeled a pedophile. maybe even one of your family members.
My son had just turned 18 and knew a young lady of 15 and they had consensual sex. Now, and according to law, he is taged a sex offender. That was 11 years ago. He is married with a son now. He cannot attend his son's ball games etc. He must report his whereabouts etc. How many men out there have commetted the very same crime and not got cought and they live amoung us. Their wives not knowing that they are merried to a "sex offender," no differant than my son,just didn't get cought, and worried about the "one" down the street?
Each "sex crime" should be examined on it's own marriets. If the real preditors and violent offenders, whitch percentage wise are the real problem, are sorted out it would make it easier for law inforcement to keep track, use less of our resorceses and allow "offenders" who are not a problem (because of the type of crime) there chance to go on to lead useful lives with family and their kids. My son is just as much a victim as the girl and will be for years to come.....