Sex Offender Registration Removal and a New Florida Case

Posted on August 18, 2009 by Ron Chapman

       Florida law provides that under certain circumstances an individual may have his name removed from the sex offender or sexual predator registry.  However, before that can occur, the judge deciding the matter must determine that removal of the person's name will not conflict with federal law.

 

        In a recent case called Miller v. State of Florida, a judge denied Mr. Miller's request to have his name removed from the sex offender registry because it conflicted with a federal law commonly known as the Adam Walsh Act.  More specifically, the judge found that the Adam Walsh Act permits only persons who have been convicted of consensual sexual activity to be exempt from registering as sex offenders.  Because Mr. Miller was unable to prove that the sexual activity that he was convicted of was consensual, the trial judge refused to order the Florida Department of Law Enforcement to remove Miller's name from the sex offender registry.

 

          In response, Miller made three arguments:  

          1.  The crime that he pled guilty to (lewd or lascivious battery), does not require proof that the sexual act was not consensual;

 

          2.  The Florida law that permits an individual to have his name removed from the sex offender registry does not explicitly require that the crime in question involve consensual conduct; and

 

          3.  The sex act that occurred between Miller and the victim in his case was, in fact, consensual.

 

          On appeal, Florida's Fifth District Court of Appeal rejected each of these arguments.  From now on, therefore, one of the things that a person trying to get his name removed from Florida's sex offender registry will have to prove is that the sexual activity he was convicted of was consensual in nature.

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Registered Sex Offenders: Suing to Find a Place to Live

Posted on July 14, 2009 by Ron Chapman

          It seems that the thorny issue of where registered sex offenders should be allowed to live just won't go away.  In 2007, I wrote an article entitled "Sex Offenders:  Where Can They Live?," and in 2008 I wrote an article entitled "Where Can You Live in Florida if You Are a Registered Sex Offender?"  Palm Beach Post staff writer John Lantigua has now written an article entitled "Registered sex offenders:  Where can they live?"

 

          In his article, Mr. Lantigua reports that just last week the American Civil Liberties Union of Florida sued Miami-Dade County over an ordinance that prohibits individuals convicted of sex crimes involving minors from living within 2,500 feet of such places as schools, playgrounds, and school bus stops.  According to the article, however, the ACLU is not suing out of a concern for the safety of those sex offenders living under a bridge but rather out of a concern for the safety of the general public.

 

          In that regard, the executive director of the ACLU of Florida is quoted as saying that "[p]eople have to realize that making them live under that bridge has created a more dangerous situation.  Because of the conditions, some of these individuals are absconding, evading supervision.  These ordinances interfere with the Department of Corrections' ability to keep track of them.  This is a crisis situation."

 

          Apparently, the Florida Department of Corrections--the agency in charge of supervising sex offenders--agrees.  A spokesperson for that agency is quoted as saying that "[o]ur concern is for public safety.  If they are homeless there is more of a chance they will abscond.  There are already 91 homeless offenders around the state, mostly in South Florida, and the problem is getting bigger."

 

          When two unlikely bedfellows such as the ACLU and the Florida Department of Corrections agree on something as serious as where registered sex offenders should be allowed to live, perhaps it's time to change the law.

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National Law Journal: Challenges Grow Over Sex Offender Laws

Posted on June 16, 2008 by Ron Chapman
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
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