Legal Issues & Court Cases Affecting Sex Offenders & Truthful Recidivism
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Cases Which Have Contested the Constitutionality of Registry Laws
Simply because a state's registry has been declared "Constitutional" does not mean, that under a different set of facts or a different substantive theory, that it would again be declared constitutional. A question of constitutionality, is based upon a set of facts presented by the person bringing the action and the constitutional right claimed!
Notice that some states have had more than one cases testing different theories/issues.

Alaska         Arkansas         California         District of Columbia         Florida         Hawaii         Illinois         Indiana         Iowa         Louisiana         Michigan         Minnesota         Missouri         Montana         Nebraska         New Jersey         Ohio         Oregon         Pennsylvania         Tennessee         Texas         West Virginia

Sex Offender Residency laws (Laws of Illusion):

Virtually all states have some form of these laws, however, they are mostly applied on to offenders on parole, probation or other types of supervision. Lawyers in a few states have taken their state residency law to court and have had varying amounts of success. See Arkansas (12-2004), Iowa (6-2003), and Tennessee (8-2004) below. It does appear that Iowa has done the best job of getting the courts to understand the illusion of these laws, and the long term damage they cause to society. However, on 4-29-2005 the 8th Cir has now overturned the Iowa decision.

All sex offenders, following completion of a sentence, have a fundamental right (substantive due process right) to a place to live in society with their families if they so chose. Residency laws encroach upon those rights, and in many cities, towns and rural areas, residency laws eliminate all possible places for housing. Further, as communities grow in size, residency laws cannot be used to evict former sex offenders and their families from their legally obtained residences, when no further violations of law have occurred. Apartment leases, mortgages and other financial housing agreements are contractual covered by constitutional law.

While the governmental interest (keeping sex offenders away from children) might sound good, residency laws cannot accomplish that goal. Residency laws merely say, the former offender (not the current sex offender) cannot live within xx feet of schools, day cares, or other places, all places where children are UNDER the supervision of qualified employees. Further, many of the former sex offenders that the law tries to separate from children, are children themself, and often need the services of the institution they are prohibited from residing near. The concept of the law is an illusion, it merely sounds good! Residency laws are a hypothetical premise, a pretext for some other gain.

4-10-2001: Alaska: Issue: Sex Offender Registry has been declared unconstitutional as it is applied to anyone convicted before enactment of the Alaska registry laws; an injunction was issue to prevent the state from listing those who were convicted before its enactment. See: Doe -v- Otte, 259 F3d 979 (9th Cir 2001) This case was then appealed to the US Supreme court.

The US Supreme Court issued its decision on 3-5-2003, denying the Ex Post Facto claim. see US Supreme Court decision Alaska (SMITH et al. v. DOE et al., 538 US 84 (2003)), however, that court REMANDED the case back to the 9th cir, to decide other issues which the 9th cir bypassed the first time through.

»3-17-04 : 9th Circuit Appeals Court, on remand from the US Supreme court, upholds Alaska sex registry law! A federal appeals court has upheld a 1994 Alaska law requiring all sex offenders _ even those convicted before 1994 _ to register with authorities as sex offenders. The idea behind sex offender registries is that the location of offenders should be publicly known and easily discovered because they are statistically likely to commit sex offenses again once released from jail. (Associated Press)

The decision: Doe -v- Tandeske, 99-35845 (3-17-04)
March - 1999: Alaska: Issue: Sex Offender Registry Plaintiff, John Doe, seeks a permanent injunction enjoining the Department of Public Safety (DPS) from applying the registration requirements of the Alaska Sex Offender Registration Act (ASORA) [see endnote 1] to him. Plaintiff also seeks a declaratory judgment that the ASORA violates the Alaska Constitution. This Court earlier entered a preliminary injunction by Order dated May 5, 1998, but invited further comment from both Plaintiff and the State. The Court, having reviewed these comments and having further reviewed the authority submitted by both parties on both issues, grants Plaintiff a permanent injunction for the reasons stated in Doe -v- State, Dep't of Public Safety


6-2-2004: Arkansas: Issue: Sex Offender Registration - Residency portion only.

6-2-2004 Arkansas
Arkansas Police Forced to Stop Enforcement Of Law Pending Case

.LITTLE ROCK (AP) -- A federal judge has barred enforcement of a state law designed to keep sex offenders from living too close to schools or day-care centers until a legal challenge is resolved. Last year, the state passed the law requiring high-risk sex offenders to move if they live within 2,000 feet of a school or day-care center. Three men sued the Little Rock and Pine Bluff police departments and the state Department of Correction last month claiming the law violates their civil rights.

On Friday, Chief U.S. District Judge Susan Webber Wright signed an order allowing the plaintiffs - convicted sex offenders Donald Weems, Michael Briggs and Tony Lampkin - to live within 2,000 feet of schools or day-care centers as long as they report their addresses to police. Little Rock City Attorney Tom Carpenter said Tuesday that Wright's order means that officials will have to wait for the lawsuit to reach its conclusion before deciding whether they can enforce the law regulating where the convicts can live.

The three men are seeking class-action status for their lawsuit. "If the class gets extended, this will apply pretty much statewide," Carpenter said. A federal judge in Iowa has already declared a similar law in that state unconstitutional. ..more..

12-3-2004 Arkansas
Judge Dismisses Suit Challenging Sex Offender Law

.LITTLE ROCK (AP) - A federal judge has thrown out a lawsuit that challenged Arkansas' sex offender law. But, U.S. District Judge Susan Weber Wright has left in place an agreement barring enforcement of a provision that would force some sex offenders (those already living within the proscribed distance) to move if they live within two-thousand feet of a school or day-care center. The challenge was filed after three men were told to move after officials learned they lived near schools or child-care centers. The men sued in May. ..more.. Associated Press


7-1-2004: District of Columbia: Issue: Sex Offender Registration - see below.

7-1-2004 District of Columbia
D.C. Sex Offender Registry Upheld by Court: (Remanded for determination on term of registration 10 Years/Life, in one case only)!
Washington (AP) - Sex offenders in D.C. will have to keep police informed of their whereabouts. That's what a Court of Appeals ruling Thursday boils down to. The District's Sex Offender Registry Act was passed by Council in 1999. People convicted or found innocent by reason of insanity must register for ten years or for life, depending on the circumstances of the charges. The offenders who challenged the law were involved in cases occurring before 1986. They argued that registration amounts to enhanced punishment and denies them due process. ..more.. The Associated Press see also Sex Offender Registry Available on Internet

Decision: In re: W.M. et al: District of Columbia Court of Appeals, 6-3-2004 (40 pg PDF)



7-1-2004: California: Issue: Sex Offender Registration - see below.

7-1-2004 California
State Supreme Court upholds sex-offender registration law

The California Supreme Court on Monday upheld the use of the state's lifelong sex-offender registration law against people convicted of misdemeanors. Reversing a 21-year-old legal precedent, the justices unanimously ruled that the California Constitution's ban on "cruel or unusual punishment" and a similar provision in the federal Constitution are not violated by the law because, wrote Justice Marvin Baxter, "the mere registration of convicted sex offenders is not a punitive measure." As Baxter noted, though, the duty may not be literally lifelong. For certain categories of offenses, including Alva's, a Superior Court judge may issue a certificate of rehabilitation, terminating the registration requirement. ..more.. Claire Cooper -- Bee Legal Affairs Writer

Decision: In re Leon Casey Alva S098928 California Supreme Court (6-28-04)


10-10-2003: California: Issue: Sex Offender Registration re: Transients - see below.

» 10-10 California: Transient Sex Offender Registration Requirement Struck Down! A portion of California’s sex offender registration law, dealing with offenders who lack a fixed abode, was held unconstitutionally vague yesterday by the First District Court of Appeal. Div. Three, overturning the conviction of a Northern California parolee sentenced to 25 years to life in prison under the Three Strikes Law, struck down a portion of Penal Code Sec. 290.

The provisions require transient sex offenders to register in the jurisdiction where they are “located” within five working days of changing their “location,” to give police written notice of their new “location,” and to register at every “location” they regularly occupy in a single jurisdiction.

The language does not give fair notice of what the Legislature expects those subject to the statute to do, Justice Joann Parrilli wrote for the court. “Section 290 fails to provide even minimal guidelines for the registering authorities in these regards, thus encouraging arbitrary enforcement,” the justice wrote. (by KENNETH OFGANG, Staff Writer)

The decision: People -v- North, Case No:A097247 (.DOC File) -OR- (.PDF File)

10-10-2003: California: Issue: Sex Offender Registration - see below.

» 10-10 California: Federal appeals court upholds sex-offender registration law: Registration is not punishment! SAN FRANCISCO (AP) - A federal appeals court said Wednesday that sex offenders can be required to register in their community even if their crimes were committed before the registration law was on the books. The 9th U.S. Circuit Court of Appeals, in a 3-0 decision, upheld the failure-to-register conviction of David Hatton, who was convicted in California of assault with intent to commit oral copulation and sentenced to four years in 1981.

In 1993, the California Legislature added that crime to a host of others requiring registration. In 1996, Hatton moved from Texas to Placer County, where he was arrested for failing to register. The defendant claimed the state could not demand he register because that was equivalent to punishing him again for a crime for which he had already served his sentence, in violation of the federal Constitution. (by The Daily Democrat)

Decision: David Hatton -v- Edward Bonner, No: 02-15586, 10-8-2003.(21-pgs .PDF File)

6-7-2005: Florida: Issue: Sex Offender Registration - see below.

6-7-2005 Florida: Court upholds sex offender registry, DNA test
.TALLAHASSEE, Fla. -- Two Florida laws requiring sex offenders to register with the state after getting out of prison and to submit DNA samples do not violate the U.S. Constitution, a federal appeals court has ruled. Sex offenders suing as a group challenged the laws as violations of five federal constitutional rights, but the 11th U.S. Circuit Court of Appeals disagreed in a 27-page opinion issued Monday.

The registration law covering sex offenders for life after convictions was enacted after the 1994 slaying of Megan Kanka, a 7-year-old New Jersey girl whose kidnap, rape and murder by a convicted sex offender spurred the creation of similar laws nationwide. Writing for a unanimous three-judge panel, Judge Stanley F. Birch Jr. concluded the requirement was "rationally related to a legitimate government interest." : by Associated Press ..more..

Decision: Doe -v- Moore, No.04-10279, 11th Circuit Fed Court of Appeals. (27-pg PDF)


2-3-2005 Florida: Florida High Court Upholds Sexual Predator List (Different from non-predator registry)
.The state Supreme Court upheld Thursday a law that creates a public list of sexual predators, rejecting arguments it violates their rights. Justices voted 4-3 to uphold the Florida Sexual Predator Act, rejecting arguments that it denied due process to those on the list by automatically labeling them as predators based on their convictions and not on individual assessments of the risk they pose. The 3rd District Court of Appeal in Miami had ruled the law unconstitutional two years ago, but a few months later the 2nd District Court of Appeal in Lakeland upheld it.

The majority also rejected an argument that the law violated the separation of powers because it left judges no discretion. "The Act is an exercise of the public-policy-making function of the Legislature to declare that persons who have been convicted of certain offenses should be designated as 'sexual predators' and should be subjected to the registration, public-notification and other requirements of the Act," Bell wrote. In dissent, Anstead wrote that there was a key difference between the Connecticut's law and the Florida law: Connecticut lists sexual "offenders" rather than "predators." The two terms are significantly different, Anstead wrote.

"Because Florida's Act automatically designates them as 'sexual predators,' they must be provided with a fair opportunity to contest that fact, if we are to honor the principles of procedural due process guaranteed by the United State Constitution," Anstead wrote. However, he added, the problem could be easily fixed by striking the word 'predator' from the law and using the word "offender." : by WFTV.com ..more..

Decision: Milks & Espindola -v- Florida, No:SC03-2103, Florida Supreme Court.(23pgs PDF)

2-3-2005: Florida: Issue: Sex Offender Registration - see below.

2-3-2005 Florida: Florida High Court Upholds Sexual Predator List (Different from non-predator registry)
.The state Supreme Court upheld Thursday a law that creates a public list of sexual predators, rejecting arguments it violates their rights. Justices voted 4-3 to uphold the Florida Sexual Predator Act, rejecting arguments that it denied due process to those on the list by automatically labeling them as predators based on their convictions and not on individual assessments of the risk they pose. The 3rd District Court of Appeal in Miami had ruled the law unconstitutional two years ago, but a few months later the 2nd District Court of Appeal in Lakeland upheld it.

The majority also rejected an argument that the law violated the separation of powers because it left judges no discretion. "The Act is an exercise of the public-policy-making function of the Legislature to declare that persons who have been convicted of certain offenses should be designated as 'sexual predators' and should be subjected to the registration, public-notification and other requirements of the Act," Bell wrote. In dissent, Anstead wrote that there was a key difference between the Connecticut's law and the Florida law: Connecticut lists sexual "offenders" rather than "predators." The two terms are significantly different, Anstead wrote.

"Because Florida's Act automatically designates them as 'sexual predators,' they must be provided with a fair opportunity to contest that fact, if we are to honor the principles of procedural due process guaranteed by the United State Constitution," Anstead wrote. However, he added, the problem could be easily fixed by striking the word 'predator' from the law and using the word "offender." : by WFTV.com ..more..

Decision: Milks & Espindola -v- Florida, No:SC03-2103, Florida Supreme Court.(23pgs PDF)

1-17-2003: Florida: Issue: Sex Offender Registry is unconstitutional, only as to "Sexual Predators."

Florida's Sexual Predators Law Tossed Out, Laurie Cunningham [Miami Daily Business Review, 01-17-2003])(www.law.com)

Court Case: 3rd. Dist Florida Court of Appeals, Espindola -v- State The Florida state law requiring sexual predators to register with law enforcement was tossed out Wednesday by a Miami appeals court that ruled it violates the constitution by stigmatizing defendants without due process. In Espindola v. State, a three-judge panel of the 3rd District Court of Appeal unanimously decided that felons convicted of sexual crimes should be granted a hearing before being classified as sexual predators. The Florida Sexual Predator Act sets up no such procedure; instead, convicted felons of certain types of crimes are automatically classified as "sexual predators."

1-24-2003 UPDATE: State files for stay in sexual-predator law. Attorney General Charlie Crist (Newly Elected) asked an appeals court Thursday to stay its decision striking down the state law that publicly identifies "sexual predators." Crist said the state has no plans to take down the FDLE Web site listing the names and addresses of sexual predators..

NOTE:Florida has a separate law which legislatively declares CERTAIN offenders as Sexual Predators. Florida Internet registry includes those legislatively declared sexual predators AND all other sex offenders whose crimes DO NOT fit the criteria of the sexual predator law.

11-21-2001: Hawaii: Issue: Sex Offender Registry has been declared unconstitutional.

See: Sex Offender Registry Violates Due Process, Hawaii High Court Rules, Annie Hsia: The National Law Journal, 11-30-2001 [www.law.com])

State of Hawaii -v- Eto Bani (Hawaii Supreme Court) and it was ordered to be removed from the Internet. Court holding: "For the reasons discussed below, we hold that the public notification provisions of HRS chapter 846E deprive Bani of a protected liberty interest without due process of law. Our conclusion derives from the fact that HRS § 846E-3 authorizes public notification of Bani's status as a convicted sex offender without notice, an opportunity to be heard, or any preliminary determination of whether and to what extent Bani actually represents a danger to society. In our view, the absence of any procedural safeguards in the public notification provision of HRS chapter 846E renders the statute unconstitutional, void, and unenforceable. Our decision today is based solely upon article I, section 5 of the Hawai`i Constitution, and we pass no judgment upon Bani's remaining constitutional claims in this appeal."


9-5-2003: Illinois: Issue: Sex Offender Registration - Privacy issue under state constitution.

9-5-03 Illinois: Judge says part of act is invalid! URBANA – A Champaign County judge has declared a portion of the state's sex offender registration act unconstitutional. It will now be up to the Illinois Supreme Court to decide whether Judge Tom Difanis' rationale is sound.

On Wednesday, Difanis dismissed a charge of failure to register as a sex offender against John Cornelius, 36, of Champaign, maintaining that an amendment to the registration act, which took effect in July 2000, violated Cornelius' right to privacy as guaranteed under the Illinois Constitution.

Cornelius was convicted in 1992 of aggravated criminal sexual abuse for a sex act he committed with a girl under the age of 13. He was sentenced to two years of probation, which he successfully completed. But he was required to register as a sex offender for 10 years, which he did annually up until late 2001, the state's attorney's office alleged in a charge filed in April 2002. "In his ninth year and however many months, he failed to let them know he moved," Martinkus said. (MARY SCHENK, © 2003 THE NEWS-GAZETTE) see also SEX OFFENDER REGISTRY CHALLENGED

12-3-2004 Illinois
Sex-offender database upheld

.Thousands of Illinois sex offenders will continue to have their names and pictures posted on a state-run Web site. In a 25-page decision issued Thursday, the Illinois Supreme Court reversed a Champaign County judge's 2003 ruling that part of the state's sex-offender registration act is unconstitutional because it violates the offenders' right to privacy.

In its decision, the court noted that information on sex offenders is available to the general public at police stations and courthouses. "The Internet provides for a different kind of accessibility to information that is already publicly available by other means," wrote Chief Justice Mary Ann McMorrow, who authored the opinion. ... ...

Attorney James Martinkus, who represented Cornelius, said his client was disappointed with the ruling and hadn't made a decision on whether to pursue further appeals. ..more.. Kurt Erickson To read Illinois Supreme court decision CLICK

7-30-2004: Indiana: Issue: Punishment for Thoughts of Offending- see below.

NOTE:.Apparently banning a person from a public place is considered punishment, according to this decision. Does it follow that, a residency law that prohibits a person from living in a place is also PUNISHMENT, and if so, does that amount to an ex post facto violation?
7-30-2004 Indiana
Pedophile Can Be Punished for Thoughts, Court Says (Update1)

A convicted child sex offender can be banned from city parks because he thought about having sexual contact with children, a U.S. appeals court ruled. The sex offender told his psychologist and self-help group that he had fantasies about children he observed playing at a Lafayette, Indiana, city park in 2000. After his former probation officer was alerted, Lafayette officials banned the man from entering any city park, including the zoo and a golf course.

The man, identified in court proceedings as John Doe, sued, and U.S. District Judge Allen Sharp ruled in favor of the city. A three-member panel of the 7th U.S. Circuit Court of Appeals reversed Sharp's decision 2-1, finding Doe cannot be punished for what he thinks. The full 7th Circuit in Chicago affirmed the suit's dismissal in an 8-3 decision. ``The inescapable reality is that Mr. Doe did not simply entertain thoughts; he brought himself to the brink of committing sexual molestation,'' Circuit Judge Kenneth F. Ripple wrote. ..more.. Mary Wisniewski

Decision: John Doe -v- City of Lafayette, Indiana No:01-3264 decided 7-30-2004 7th Circuit Federal Court of Appeals.

6-27-2003: Indiana: Issue: Sex Offender Registry - see below.

6-27-03: Indiana Supreme Court OKs sex offender photos. Photographs and addresses of convicted sex offenders can be posted online as soon as next week, following a state Supreme Court ruling Thursday. The Indiana Civil Liberties Union challenged the change, arguing offenders should be able to block the posting of their photos and addresses if they can prove in a court hearing that they are no longer a danger. Supporters of the registry insisted that without photos and addresses, the registry was almost useless. (IndyStar.com)

You can read the full Indiana Supreme court decision Doe -v- O'Connor. NOTE: It is a PDF file, 19 pgs.


6-27-2003: Iowa: Issue: Sex Offender Registry - "Residency Law Provision"

4-29-2005 Iowa: Judges uphold sex offender residence restrictions
.The 8th U.S. Circuit Court of Appeals today upheld a state law that prohibits sex offenders from living within 2,000 feet of a school or day care facility, overturning a lower court ruling. The Constitution does not prevent the state from regulating sex offenders "to protect the health and safety of the citizens of Iowa," the court said. The Iowa Civil Liberties Union had sued on behalf of convicted sex offenders, arguing that the law gave sex offenders too few places to live and prevented them from living with friends or relatives.

Sex offenders said the law either forced them to live in rural areas or restricted them to halfway houses or specific apartment complexes. They argued that the restrictions violated their rights to privacy, to travel and to live where you want. U.S. District Judge Joseph Pratt struck down the law last year, ruling that the law violated their 14th Amendment right to due process.

However, the circuit court said the restriction does not offend the principles of procedural due process because there are no exemptions. The law applies equally to all offenders who have been convicted of certain crimes against minors. The court said sex offenders' privacy rights regarding to marriage and family life were unimpeded by the residency restriction and it noted, citing a U.S. Supreme Court ruling, that the infringement on the sex offenders' choice of resident was "narrowly tailored to serve a compelling interest." : by The Des Moines Register. ..more..
Court Decision: Doe -v- Miller, 8th Cir 04-1568, April 29, 2005


2004 - Iowa's Residency Laws were declared unconstitutional and
the federal court issued a permanent injunction against enforcement of these laws!


Iowa Federal Court Decision: Doe -v- Miller (298 FSupp 2d 844 [SD Iowa 2-9-2004] appeal pending]). The decision, pages 23-36 focus on the hidden issue of therapy and the long term effect on society. The court also considered the only other study related to residency laws and sex offenders: A Minnesota 2003 report to its legislature entitled "Level Three Sex Offenders Residential Placement Issues" (27 pg PDF file heavily laden with maps, very slow loading, 3-5 minutes).

Effective legislation requires understanding the issues including those not so apparent. Residency laws are an encroachment into the very core of life for sex offenders and their families. This was recognized by the Iowa Federal court judge.

The real question was, how much is too much, and is there a negative societal effect from these laws? Even with a good purpose of public safety, did the legislature go too far? Here the court looked at a hidden issue to guide its final decision. The psychological effect of these laws on the offenders and their families; and, ultimately, public safety.

Roughly 13 pages of the court's decision, focused on the possible therapeutic backlash these laws may have on public safety. The court was concerned that, the effect of these laws may cause offenders who have already been through therapy, to relapse into new criminal acts. Expert psychological testimony was heard, and it was concluded that, these laws would likely send offenders into a relapse into crime.

That hidden issue, therapy, was the core reason in the judge's decision, and you'll notice the absence of any mention of therapy from media reports; have they even read the court's decision? The media focusing only on what is readily apparent to the eye, not, whats apparent to the minds' eye. This judge had long term vision at the heart of his reasoned decision.

(eAdvocate)


2-21-2001: Louisiana: Issue: Sex Offender Registry - Ex Post Facto Claim and registry is not a violation of the ex post facto clauses.

Louisiana's Supreme Court, in State Ex Rel. William Olivieri -vs- State of Louisiana , held that the state's sex offender registry laws do not violate the Ex Post Facto clauses.

Justice Kimball, concurring in part and dissenting in part.
Chief Justice Calogero, concurring in part and dissenting in part.

This case also raised issues related to "Residency Laws" (i.e., 2,000 ft rule from schools) which we feel were not properly addressed, being overshadowed by the ex post facto claim. The problem is, the court did address the residency issue, and denied it, leaving registrants with major problems. It is hard to believe that, the entire Louisiana registry law wasn't declared unconstitutional, especially given they require the registrants to personally notify -via letters- their neighbors that they (sex offender) have moved into their neighborhood.


6-5-2002: Michigan: Issue: Sex Offender Registry has been declared unconstitutional.

»6-5-02 Michigan: State shuts online sex offender list after ruling! LANSING -- The Michigan State Police pulled the plug Tuesday on its online registry of sex offenders after a federal judge ruled the list is unconstitutional. Click for decision.

U.S. District Judge Victoria Roberts ruled against the state in a case that mirrors other decisions nationally. She held that the list unfairly includes everyone convicted of sex crimes without considering whether they individually are a danger. Offenders remain on the list for at least 25 years and must update officials four times annually.

Roberts noted that was unfairly burdensome. "No matter how laudable the goals of the Legislature are, there is a right to a fair procedure when the power of the government is to be used to burden and penalize citizens," she wrote. "This is true even when the citizens are convicted sex offenders."

The U.S. Supreme Court agreed to hear arguments in a Connecticut case that last year struck down that state's public listing. Similar cases have cropped up in other states as well. (Ronald J. Hansen / The Detroit News)....more....
»6-26-02 Michigan: Judge bars public from sex offender list! Police in Michigan can keep compiling a registry of sex offenders, but it will only be seen by officers -- not the general public, U.S. District Court Judge Victoria Roberts said in a decision released Tuesday. Click for decision.

But Roberts, in continuing an earlier ruling, forbade the registry from being disseminated on the Internet again unless the U.S. Court of Appeals says otherwise. Roberts reversed her own June 3 decision, which labeled the registry unconstitutional. Roberts had ruled that the registry violated the 14th Amendment right to due process. Had she not amended her position, police would not have been able to use the registry to track the whereabouts of offenders who must register with them four times a year.

"Posting names on the Web site has ruined many lives, including juveniles convicted of consensual sex and a young woman in her 20s who was arrested for indecent exposure because she urinated in public," Moss said. (Hawke Fracassa / The Detroit News)....more....
»7-2-02 Michigan: Mich. lawyer hopes other registries may shore up his suit! Attorney Thomas Lazar of Bingham Farms represents a former Michigan corrections officer sentenced to probation and listed on the online registry for having consensual sex with a female prisoner. It is illegal for a corrections officer to have sex with a prisoner. Lazar contends his client isn't a threat and his name shouldn't be listed beside the names of rapists and pedophiles..

Lazar won his argument last month in Detroit. U.S. District Judge Victoria Roberts ruled the list is unconstitutional because convicted sex offenders don't have a chance to prove they're not dangerous and therefore might not belong on the list. Roberts' ruling took Michigan's controversial registry offline. Michigan Attorney General Jennifer Granholm is appealing in federal appeals court.

Lazar said he intends to bolster his argument by explaining that at least 10 other states use individual assessments to determine who to list on sex-offender registries. He lauded the way Iowa handles its registry with individual assessments and hearings that can be appealed. The goal is to weed out offenders who aren't considered dangerous. "Why keep after somebody who isn't dangerous?" Lazar said. "Other states don't. Why should we?"

Granholm's appeal to the U.S. 6th Circuit Court of Appeals in Cincinnati seeks to bring the list back online for public use. "Michigan families can rest a little easier -- knowing that law enforcement once again has all the tools necessary to protect our communities," Granholm said. "We intend to see that Michigan's families have access to those tools, too." (Tony Manolatos / The Detroit News)....more....
»8-22-02 Michigan: Federal appeals ruling overturns a lower court ruling to keep it private! The state police's list of Michigan's 29,000 convicted sex offenders returned to the Internet Wednesday night after being on the shelf for most of the summer. A federal appeals court ruled Wednesday that a U.S. District Court judge erred in ordering the registry off the Web June 3.. Click for decision.

Kary Moss, executive director of the Michigan American Civil Liberties Union, said the appeals court ruling will have consequences. "In some cases it will be a public service," Moss said. "In other cases, it may lead to tragedy -- to suicide, to mob actions, to people being branded forever as pedophiles when in fact they are not."

The 6th U.S. Circuit Court of Appeals in Cincinnati on Wednesday overturned Roberts' ruling, saying the sex list should remain public while it considers the case of a convicted sex offender who wants all references to his name deleted. (Hawke Fracassa / The Detroit News)....more....
The US Supreme Court issued decisions on 3-5-2003, denying both relief on the issues each presented:

CONNECTICUT: Doe -v- Dep't of Public Safety, 538 US 84 (2003)), ALASKA: Smith et al. v. Doe et al., 538 US 84 (2003)), which was REMANDED to the 9th cir, for other issues bypassed the first time through. 9th Circuit finally decided on 3-17-04 see Alaska top of page.


»2-26-04 Michigan: 6th Circuit Court of Appeals court reverses ruling that list unfairly damages people's reputations! Michigan’s 8-year-old sex offender registry is legal after all, says the U.S. 6th District Court of Appeals. Reversing a lower court ruling that said the registry stigmatizes those on the list as dangerous to the public, a unanimous three-judge panel said Wednesday that damage to a person’s reputation is not a good enough reason to strike down Michigan’s law. Click for Decision

“The information on the registry’s Web site makes it clear to anyone accessing the registry that all sex offenders convicted after a certain date are listed, without exception,” they said. “Moreover, there is nothing on the Web site to indicate that the state has made an individual determination as to a registrant’s dangerousness.”

But Wendy Wagenheim, spokeswoman for the American Civil Liberties Union of Michigan, said the list is too broad. “People who are dangerous need to be carefully monitored by law enforcement,” she said. “Unfortunately, this law lumps together the college kid who uses poor judgment and urinates in public along with sexual predators who are truly dangerous to the community.” (Mark Hornbeck, and Charlie Cain / Detroit News Lansing Bureau)....more....
This case began before the US Supreme court had decided either the Alaska or Connecticut cases. The issues raised here, procedural due process, were identical as the issues raised in the Connecticut case, hence the result was the same. As of this point in time, no case has yet to raise a substantive due process issue, which is what the US Supreme court implied (See Connecticut), it may view differently.

In hindsight, the facts of this case, a corrections officer and an inmate in a consenting adult relationship, such is not really the kind of sex crime that registration and community notification sought to reach. In its proper context, it could be argued in court requesting relief from judgment.

Inclusion of this conduct violates the spirit and intent of all Megans' laws. When the legislature criminalized this conduct, forcing registration, they may have violated Michigan's Constitution, Title Object Provision. If this conduct, with registration provisions should be included, then so should adultery be; purely a legal argument.

8-6-2003: Minnesota: Issue: Sex Offender Registration - "Shouldn't have to register because never convicted of a sex offense!"

8-7-2003 Minnesota
Man Loses Fight to Avoid Listing on Sex Offenders' Registry

Minnesota man must register as a sex offender even though he has not been convicted of a sex crime, the federal appeals court in St. Louis ruled yesterday. That ruling "turns reason and fairness on its head," wrote Judge C. Arlen Beam, who nonetheless concurred in the unanimous decision of the three-judge panel of the court.

The case arose from an encounter in a bar in 1998. Brian Gunderson went home with a woman he met there and, according to her, assaulted and raped her. He was charged two days later with sexual assault. But the physical evidence collected by the police did not support the woman's accusation of rape. Judge Beam wrote, "The police investigation clearly established a lack of sexual contact between Mr. Gunderson and the complaining woman."

The original criminal complaint was dropped, and Mr. Gunderson pleaded guilty to a new one charging him with assault. He received a 15-month suspended sentence and three years of probation. State officials later told Mr. Gunderson that he must register as a sex offender under a state law that requires it whenever someone is convicted of a sexual offense "or another offense arising out of the same set of circumstances."

The Eighth Circuit said it was bound by a 1999 decision by the Minnesota Supreme Court in which a defendant charged with a sex crime was required to register after pleading guilty to a lesser charge. The federal court also held that including people who are not sexual predators in a registry of sex offenders does not violate their fundamental constitutional rights. ..more.. ADAM LIPTAK | New York Times

Decision: Brian Gunerson -v- Hvass, & Minnesota Dep't of Corrections, 8th Cir Court of Appeals(8-6-2003)

1-11-2005: Missouri: Issue: Sex Offender Registration - See below

1-11-2005 Missouri: MIssouri Supreme Court: sex offender registry can apply retroactively

.JEFFERSON CITY, Mo. - Missouri's sex offender registration law can apply to people who committed crimes before the law took effect, the state Supreme Court ruled Tuesday. Attorney General Jay Nixon praised the decision, saying "hundreds, if not thousands" of sex offenders could have avoided registration requirements had the court not upheld the current practice of applying the law retroactively. "This is an important step toward guaranteeing a higher level of public knowledge and public safety toward sex offenders," Nixon said in an interview. "Information is power here."

The state's sex offender list is available to the public and, under a 2003 law, is now posted on the Missouri State Highway Patrol's Internet site. Tuesday's unanimous Supreme Court ruling was prompted by an appeal from a convicted sex offender who refused to register with the Jackson County sheriff's office. The offender argued he should not be subject to the law because he was charged with sodomy and first-degree sexual assault in February 1994 - nearly a year before the law took effect. The offender was not identified in court documents. The U.S. and Missouri constitutions both prohibit "ex post facto" laws, which impose punishment for acts that weren't illegal at the time. The state Supreme Court said Missouri's law constitutes only a civil regulation - not a punishment.

The ruling follows a March 2003 U.S. Supreme Court decision upholding Alaska's sex offender registry. The nation's highest court ruled the registry was not punitive and so did not violate constitutional protections against retroactive laws. Thirty-three other state courts also have upheld the retroactive application of the sex offender registry laws, the Missouri Supreme Court said. In determining the Missouri registry wasn't punitive, the state Supreme Court said the registry didn't intentionally subject sex offenders to shame or humiliation and didn't restrict their travel. The court said the list also serves a regulatory purpose by helping authorities investigate sex crimes and a public safety purpose by protecting children from sex offenders.

The appeal also had argued that the sex offender should be exempt from registering because he had received a suspended imposition of his sentence. But the court noted the offender had pleaded guilty and the law applies to everyone convicted or pleading guilty to a sex crime, no matter the sentence. : by David A. Leib, Associated Press ..more..

Decision: In re: R.W., Appellant v. Michael Sanders, et al., Respondents., SC85652 Missouri Supreme Court

02-20-2004: Montana: Issue: Sex Offender Registration - "Lifetime Registration"

» 02-20 Montana: State Supreme Court upholds sex offender registration law again! HELENA - A law requiring sexual and violent offenders to register with authorities after serving their prison sentences has survived a second constitutional challenge. The Montana Supreme Court has rejected a claim that the lifetime registration mandate deprives a person of rights that the [Montana] constitution says are restored when state supervision ends.

The five-judge panel unanimously said the rights referred to in the constitution are "civil and political rights incidental to citizenship," such as voting, holding elective office and having jobs that require state licensing. It does not include the rights claimed by Clifford Wagner, the justices said.

Wagner contended the state's demand that he register his whereabouts with authorities for the rest of his life violated his rights to exist free from state regulation, to travel and to pursue employment. He said his release from prison, after serving about 15 years for rape, kidnapping, burglary and robbery in Cascade County, should have restored all his rights. He cited a Montana constitutional provision that says: "Full rights are restored by termination of state supervision for any offense against the state." (by The Billings Gazette)

Decision: Clifford Wagner -v- State of Montana, No: 02-571, 2004 MT 31.(7-pgs .PDF File)

10-10-2003: Montana: Issue: Sex Offender Registration - see below.

» 10-10 Montana: Supreme court upholds sex offender registration! HELENA (AP) -- Montana's law requiring sexual and violent offenders to keep authorities informed of their whereabouts is not unconstitutional, the Montana Supreme Court has ruled. The registration mandate does not violate either the constitutional ban on increasing the penalty for past crimes or a convicted felons' right to privacy, the justices said in a 5-1 ruling Tuesday. Retroactive application of the law is not improper because it is not a form of punishment, but instead is a legitimate effort to protect the public from dangerous people who often repeat their crimes, the court held. (by The Billings Gazette)

Decision are: State of Montana -v- John Murphy, No: 02-222, 2003 MT 276.(5-pgs .DOC File) which points to their holding in: State of Montana -v- John Murphy, No: 02-222, 2003 MT 275. (29-pgs .DOC File)

7-16-2004: Nebraska: Issue: Sex Offender Registration - Various Issues, see below.

7-17-2004 Nebraska
State Supreme court upholds sex-offender registry

Nebraska's law requiring public notice when a high-risk sex offender moves into a neighborhood was upheld Friday by the Nebraska Supreme Court. Although it is humiliating for the sex offender, notification serves a fundamental public purpose, said Judge John Gerrard, writing for a unanimous court. "It allows persons who have been notified to take action to protect themselves and their families," he wrote.

Terle Slansky of Kearney and Gerald G. Welvaert Jr. of Bellevue argued that registration amounts to an after-the-fact penalty increase for crimes committed years ago. They said that violates the Ninth Amendment's ban on ex post facto punishment. They also argued that the law violates the Fifth Amendment's ban on double jeopardy and that the risk assessment instrument developed by the Nebraska State Patrol was too punitive.

Both men had scored as Level 3 sex offenders, the highest level of risk. Level 1 sex offenders, the lowest risk, are identified only to police. Level 2 sex offenders also are identified to schools, day-care centers, church and youth organizations. Level 3 offenders also are publicly named in press releases to the news media, and their names are included in a list of sex offenders on the State Patrol's Web site. Police are authorized to inform neighbors.

He argued that the publication of his status as a sex offender would cause him and his family emotional stress - and could threaten his job and that of his wife. Welvaert, convicted of four felony charges relating to having sexual contact with underage girls between 1994 and 1996, made similar arguments in a separate case. He said offenders aren't allowed to offer mitigating factors in the classification process and that some factors get double-counted in different sections of the risk assessment.

Mario Scalora, a University of Nebraska-Lincoln associate professor of psychology, developed the risk assessment instrument, which is a sort of questionnaire that assigns scores to various components of an offender's crime and his background in an attempt to objectively quantify risk. The Supreme Court rejected the challenges, saying offenders have adequate opportunity to persuade investigators to depart from the instrument's score. ..more.. LESLIE REED | WORLD-HERALD BUREAU
Click to read decisions:
Slansky v. Nebraska State Patrol, 268 Neb. 360, Filed July 16, 2004. No. S-03-747 --AND--
Welvaert v. Nebraska State Patrol, 268 Neb. 400, Filed July 16, 2004. No. S-03-1006.


06-01-2004: Nebraska: Issue: Sex Offender Registration - LifeTime Registration.

» 06-01-2004 Nebraska: State Supreme Court affirms Lincoln sex offender's sentence! A unanimous Nebraska Supreme Court on Friday upheld the sentence of a Lincoln man convicted of sexually assaulting a child, ruling that the sentence was not excessive for the crime. The court also said changes made in the state's Sex Offender Registration Act after James R. Worm, 32, committed the crime nevertheless applied to his case. The changes required people convicted of certain child sex offenses to register for life.

Prosecutors charged Worm in April 2002 with first-degree sexual assault of a child in connection with the assault that March of the 7-year-old daughter of the woman Worm was dating. The charge was later amended to attempted first-degree sexual assault. At his sentencing that November, Worm argued changes made in the Registration Law in April should not apply to his case.

The changes included an amendment that required people who committed "aggravated offenses" that involve penetration of a victim younger than 12 to register for life. Lancaster County District Judge Jeffre Cheuvront ruled later the amendment applied to Worm because its intent was regulatory and not punitive.

Worm argued on appeal that application of the amendment to his case violated the U.S. and Nebraska constitutions, which prohibit laws from being applied to events that happened before the laws existed. On Friday, Supreme Court Judge William M. Connolly said the prohibition applied to retroactive criminal punishment and not to civil sanctions.

Connolly said courts have generally held "that registration statutes do not promote the traditional aims of punishment: retribution and deterrence." In addition, he said the intent of the Registration Act was to protect the public and to aid law enforcement in investigating sex offenses. "We conclude that Nebraska's registration provisions do not impose an affirmative disability or restraint on the registrant," he wrote. (Butch Mabin)

Click to read the State of Nebraska, appellee, v. James R. Worm, appellant; State v. Worm, 268 Neb. 74; Filed May 28, 2004. No. S-02-1506., Decision!

10-10-2003: New Jersey: Issue: Sex Offender Registration - see below.

» 10-10 New Jersey: Vigilantes warned to obey the law! A federal court ruling to permit street addresses of some sexual predators to be published on the Internet has raised concerns among law enforcement and civil liberties groups.

The 3rd U.S. Circuit Court of Appeals on Monday, Aug. 18, dismissed a challenge to the Internet posting that had been filed by the state Public Defender and the American Civil Liberties Union.

Mendham Township Chief Thomas Costanza said he supports publication of the addresses as a way to alert the public of sex offenders in the community. However, Costanza said he is concerned with the potential for reprisals "against people who have done nothing beyond what they were convicted of."

"My message was that the gentleman had served his time and was abiding by the laws in place but that you (school officials) were bordering on harassment," Costanza said. (by PHIL GARBER , Managing Editor)

Click to read the A.A. -v- New Jersey, US Court of Appeals, 3rd Cir, Decision 2003!

10-7-2004 New Jersey: Sex offenders aim to shut down state's online registry: Lawsuit filed on behalf of 3,500 listed on Jersey's Internet page cites increased reprisals
.One night in June 1998, just days after police went door to door through a Linden neighborhood handing out fliers listing the address of a sex offender, someone fired five bullets into the house where he lived. The shooter was arrested within two weeks and later sentenced to 10 years in prison. Then-Attorney General Peter Verniero said that demonstrated "the resolve of the law enforcement community to bring vigilantes to justice."

But harassment of that sex offender, who still lives in the same house, did not stop, according to a lawsuit that seeks to shut down the state's Internet sex offender registry. It claims that since his picture went up on the Internet two years ago, his car windshield and house windows have been smashed with rocks and his life has been threatened, making him afraid to pick up his mail or take out his garbage during daylight hours.

The lawsuit, filed by the state Public Defender on behalf of more than 3,500 sex offenders listed on the Internet registry, blames it for subjecting them to increased reprisals by an angry public. It cites more than 100 cases of sex offenders or their relatives who have been beaten, threatened, harassed, fired, evicted or ostracized. Several, it claims, have attempted suicide and one succeeded.

The state Attorney General's Office argues the incidents cited in the lawsuit, while "regrettable if true," are no reason to shut down a Web site that serves "the compelling public safety purpose" of enabling people to protect themselves and their children against known sex offenders. "There's nothing I'm aware of that shows any difference in how these people are able to live their lives as a result of their names being published on the Internet," said Assistant Attorney General B. Stephan Finkel, who is handling the case for the state.

Accessed through the New Jersey State Police Web site, it features a prominent warning that "any person who uses the information contained herein to threaten, intimidate or harass another" faces criminal prosecution. But Michael Buncher, the deputy public defender handling the case on behalf of the sex offenders, said the Internet registry has made harassment of sex offenders worse. "Because it goes out to so many more people, the risk of something happening increases, especially when it goes out anonymously," Buncher said.

Buncher's office collected statements from 102 registered sex offenders or their relatives describing various harms they said they have suffered since Megan's Law took effect in 1994. Buncher said 55 statements relate specifically to Internet notification. For the Linden sex offender whose house was shot at, "Internet notice has made an already intolerable situation much worse," the lawsuit says. "I try not to make myself visible," the man said in a telephone interview. "I go out early in the morning, come back in the evening. I don't want to stir people up."

The lawsuit says that in 1997, a man identified in court papers as S. K. was sentenced to probation for criminal sexual contact and a Megan's Law notice was sent to nearby schools. "Over the next five years," it claims, "he experienced no problems in community." But when his name and picture were posted on the Internet in March 2002, "he began receiving five or six threatening telephone calls daily" and was beaten one night by a group of men, the lawsuit claims. Assistant Union County Prosecutor Maureen O'Brien, who heads the Megan's Law unit, said released sex offenders should report harassment to the police. O'Brien said she has not had a complaint of vigilantism against a sex offender in the past five years, adding, "I don't think it's a problem, not a big problem."

State officials anticipated the Internet Sex Offender Registry would spark a lawsuit and tried to head it off. In November 2000, they asked voters to approve an amendment to the state constitution to prevent sex offenders from attacking the proposed Internet registry in state court. It passed overwhelmingly. But that also gave the Public Defender's Office a new legal challenge, claiming the 2000 amendment, by "stripping a select group of citizens of rights others continue to enjoy," violates the U.S. Constitution's guarantee of equal protection. ..more.. ROBERT SCHWANEBERG Star-Ledger Staff


7-24-2004: Ohio: Issue: Sex Offender Registration - see below.

7-24-2004 Ohio
Sex offenders won't register: Ohio Appeals court ruling nullifies part of Megan's law

Convicted felons designated as sexually oriented offenders in Hamilton County courts will no longer be required to register their addresses with the sheriff's office in the county where they live. That determination came Friday in a ruling by the Ohio 1st District Court of Appeals.

Under Ohio law, there are three legal designations of sexual offender. The worst is sexual predator - a person considered the most likely to commit another sex crime. The middle classification is habitual sexual offender. The third and lowest classification is sexually oriented offender. Everyone convicted of any sex offense is automatically classified a sexually oriented offender.

The state requires all sex offenders to register their addresses. And depending on their classification, police are required to notify schools, day-care centers and neighbors when such an offender moves. But the court of appeals ruled that when a judge designates a person a sexually oriented offender, it means the offender is not likely to commit another sex crime.

So, the court said, requiring sexually oriented offenders to register their addresses bears no connection to the state's interest, which is to prevent future sex offenses. The decision was written by Appeals Judge Ralph Winkler. Judges Rupert A. Doan and Mark Painter concurred. The ruling overturns part of Megan's law, which requires sex offenders to register when they move into a new community.

Common Pleas Judge Fred Nelson sentenced Anthony to 40 days in jail and five years' probation, and designated Anthony a sexually oriented offender. Anthony appealed, arguing that forcing him to register as a sexual oriented offender violated his constitutional rights. The court agreed. It upheld Anthony's conviction and designation as a sexually oriented offender. But, the court said Anthony does not have to register his address with the sheriff's office. The ruling does not affect anyone previously ordered to register. ..more.. Sharon Coolidge | Enquirer staff writer

Decision: State of Ohio -v- Marc Anthony Ohio Court of Appeals, FIRST APPELLATE DISTRICT OF OHIO, HAMILTON COUNTY, OHIO 7-23-2004

8-28-2002: Ohio: Issue: Sex Offender Registry - Labeling/Classifying Ohio's Supreme Court, in State -vs- Hayden , "ruled yesterday that a court may label a defendant a "sexually oriented offender" without having a hearing on the matter."

Note: In a newspaper article, the article tended to mislead the public, wherein it stated, "Court says sex offender law requires no hearing," that is not true. Referring to the Supreme Court Case, under Ohio registry laws an offender can be classified one of the following, a "habitual sex offender," or a "sexual predator," both of those REQUIRE A HEARING before labeling the offender as such. If an offender is neither of those then a default label attaches being a "sexually oriented offender" simply as the result of a sex crime conviction. Ohio has a tiered registry, and under those circumstances mentioned requires a hearing, unlike many states.


2-11-2005: Oregon: Issue: Parole Board Designation as a "Predator" - See Below

2-11-2005 Oregon: Court finds sex offender designation process flawed
.The state Parole Board is illegally designating some convicts as predatory sex offenders because they are not allowed a hearing by the board, the Oregon Supreme Court ruled Thursday. ... The court unanimously said the board's practice of automatically designating some convicts as predators because of their serious past criminal records ignores their right to give new evidence in their favor.

"Any party facing such a designation, whatever the reasons for that designation, must be accorded the basics of due process," court said in an opinion by Justice Michael Gillette. "Those basics, at a minimum, include notice and the opportunity to be heard as to all factual questions," he said. Kevin Neely, spokesman for Attorney General Hardy Myers, said the state will oppose any effort to make the ruling retroactively apply to past board decisions.

"We're disappointed with the ruling, but it does give us clear direction on the requirements imposed on the board," he said. "The court has determined all of these offenders are entitled to some form of hearing and opportunity to present their case." The 1993 law says the Parole Board must classify a person as a predatory sex offender if he or she is convicted of a particular crime and "exhibits characteristics showing a tendency to victimize or injure others."

While the board has leeway in deciding what criteria to use, the Supreme Court said a predatory designation cannot be made without providing offenders a chance to give evidence about their current characteristics and behavior. ... The Parole Board uses a state Corrections Department scoring scale that ranks chances that offenders will repeat their crimes.

The scale uses such factors such as history of sex offenses, whether weapons were used in the crimes and whether the victims were strangers. Parole Board rules require it to designate offenders as predators if they reach the highest-risk scores. Those offenders can file written objections but aren't allowed to have a hearing to challenge the potential designations, although offenders with lower risk scores are allowed to request hearings. : by Associated Press ..more..

Decision: V.L.Y., -v- BOARD OF PAROLE AND POST-PRISON SUPERVISION, (CA A108068; Supreme Court S51000) (2-10-2005)
8-15-2002: Oregon: Issue: Sex Offender Registry - Ex Post Facto Claim and registry is not ex post facto.

Oregon's Supreme Court, in State -vs- Macnab (OREGON JUDICIAL DEPARTMENT,Appellate Court Opinions), held that the state's sex offender registry laws do not violate the Ex Post Facto clauses. The issue presented in this criminal case is whether the ex post facto clauses of the Oregon or the United States Constitutions prohibit defendant's criminal conviction for failure to register as a sex offender.

9-26-2003: Pennsylvania: Issue: Sex Offender Registry - Main Megan's Law decision

9-26-03 Pennsylvania: The Pennsylvania Supreme Court on Thursday (9-25-2003) upheld provisions of the state's "Megan's Law" requiring some sex offenders to register their addresses with police and get counseling, but the court struck down as unconstitutional penalties of up to life in prison for not complying with those provisions! (by NEPA News)
Williams -v- Commonwealth of Pennsylvania (Pennsylvania Supreme Court). NOTE: It is a PDF file, 41 pgs.
» 12-23-03 Pennsylvania: Court upholds Megan's Law! HARRISBURG -- State Superior Court has upheld Pennsylvania's Megan's Law by turning down a challenge from a convicted child molester who had argued, among other things, that the law violated his constitutional due-process rights.

In a 21-page ruling issued Friday, the three-judge panel described as "meritless" the claims made by Robert J. Kopicz, 58, of Hamburg, who pleaded guilty in 2001 in Berks County to charges involving five child victims.

Kopicz's appeal said he was being improperly subjected to an increased penalty without a jury hearing, that the term "sexually violent predator" is too vague and that a mandatory assessment hearing did not protect him from self-incrimination. He also argued the law violated his right to privacy, his right to be free from cruel and unusual punishment, the separation of powers doctrine, double jeopardy prohibitions and the state constitution. (Mark Scolforo, The Associated Press) See: Commonwealth of Pennsylvania -v- Robert Kopicz, Pennsylvania Supreme court (12-19-2003)
» 10-19-03 Pennsylvania: Judge dismisses charges in Megan’s Law case: A Montgomery County judge determined Friday that there was insufficient evidence to show that an Upper Gwynedd man had received proper notice that he was supposed to register as a sex offender with police when he moved to Pennsylvania from New York!
In August 2001‚ Upper Gwynedd police charged McCracken with failing to register his address with local authorities when he moved to his mother’s township home from New York. Authorities alleged that‚ as a convicted sex offender‚ McCracken was required by Megan’s Law to notify authorities of his whereabouts.

Authorities maintained that McCracken had received proper notification of the registration requirement‚ but prosecutors had hoped to receive additional evidence from New York officials when the hearing resumed Friday. “Without them‚ we couldn’t show that he was told he had to register in another state. Their cooperation was essential‚” Assistant District Attorney Todd Stephens said after Friday’s hearing. (by Carl Hessler Jr. , For The Reporter)
» 10-4-2003 Pennsylvania: Judge makes it harder to find registered sex offenders! A decision by the state Supreme Court last month has forced the Pennsylvania State Police to make it more difficult for people to find the names and addresses of registered sex offenders on the Web.

Pennsylvania's so-called Megan's Law grants everyone the right to know where registered sex offenders live. But the court recently mandated that you have to ask for the information first. Before the court's Sept. 25 decision, the state police made a map of Pennsylvania readily available on their Web site. Clicking on a county in the map produced a list of sex offenders living there. But the court decided that transmitting the information electronically should only happen through fax or e-mail.

Now, instead of a link to the map, at the bottom of the Web page ... there's a button that sets up an e-mail message from the user's computer to a state police server. Simply sending the e-mail -- even without a message -- prompts an automatic reply, and that contains a link to the map.

The ruling was in response to an Erie County judge's contention that posting convicted sex offenders' names and addresses on the Web was unconstitutional because it made the information available to people so far away that the convict posed no danger. But Justice Thomas Sayles, who wrote the high court opinion, said the information could still be useful to people wanting to move to Pennsylvania.

Anderson said that the way it's set up now, the page complies with the new state law, even though the only change is the automated e-mail system. The user can re-use the link. That doesn't violate the law, said Chris Carusone, a lawyer for the state police. "Who they share it with after they get it is out of our control," Carusone said. "You can hand it out at the county fair or mass e-mail it to 100,000 people." (by Mike Wereschagin)

10-6-1998: Pennsylvania: Issue: Sex Offender Registry - see below.

STATE LAW: Governor Tom Ridge sought to address this issue during the 1995 Special Session on Crime. During this session, legislation was introduced that would IDENTIFY those sexually violent offenders who are truly predators and allow the sentencing court to impose a life sentence on those offenders; REGISTER with the Pennsylvania State Police both sex offenders and sexually violent predators; and NOTIFY the communities when those persons, identified as sexually violent predators, move into their neighborhood.

On October 21, 1995, Governor Ridge signed into law Act 24 of 1995, which became effective on April 21, 1996. Act 46 of 1996 amended Act 24 of 1995 and became effective on May 22, 1996.

In a decision filed October 6, 1998 in the Superior Court of Pennsylvania, Appellee v. Edward James Hayle, the Superior Court found portions of "Megan's Law" to be unconstitutional.

On June 30, 1998, the Pennsylvania Supreme Court in Commonwealth v. Williams, (Revised: 11-12-98 Jay Paul Koller) struck down all relevant provisions of the Act relating to sexually violent predators, with one dissenting opinion. In a second ruling also released on June 30, the Pennsylvania Supreme Court in Commonwealth v. Gaffney, unanimously upheld the Pennsylvania Superior Court's ruling that the registration portion of the Act was constitutional.

The Pennsylvania Legislature unanimously reenacted Megan's Law and on May 10, 2000, the Governor signed into law Act 18 of 2000. Pursuant to statute, the law became effective July 8, 2000. Act 113 of 2000 amended Act 18 of 2000 by adding a new offense, sexual exploitation of children. Pursuant to statute, this amendment became effective February 18, 2001.



8-20-2004: Tennessee: Issue: Sex Offender Registration - Residency laws.

8-20-2004 Tennessee: Judge limits scope of new sex-offender registry law: Law applies only to those convicted after it went into effect
.A federal judge yesterday ordered the state not to enforce its new sex-offender registry law against those convicted before the statute went on the books. U.S. District Court Judge Todd J. Campbell's order arises out of a constitutional challenge posed by a Nashville man known in court as ''John Doe.'' He was convicted of sexual battery in 2000 but has since been living in a house and working at an office that are both within the restricted 1,000-foot zone proscribed by the new state law.

The statute, which went into effect Aug. 1, forbids sex offenders from living or working within 1,000 feet of a school or day care. Tennessee's sex-offender registry law was passed this year by the legislature and signed by Gov. Phil Bredesen, despite a warning from state Attorney General Paul Summers that if enacted, the statute was highly likely to be challenged as unconstitutional.

Campbell's preliminary injunction applies only to those who were convicted in Tennessee before the new law went into effect. He did not address the law as it applies to those convicted after its effective date. The plaintiff's attorney, Brent Horst, filed his federal complaint the day after the law went on the books. Horst argues that in banishing his client from a certain area, the law is twice punishing Doe, which constitutes an improper ''double jeopardy.''

Horst says the law improperly criminalizes a past action that was legal at the time. His client did nothing illegal in 2000 when he chose to buy a house within 1,000 feet of a Nashville school, Horst argues; furthermore, his client was doing nothing wrong when his employer set up its offices at a site that is also close to a school. Now that the law has gone into effect, Doe is required to report his whereabouts to the state — which would expose him to prosecution. Horst argues that requirement violates the Fifth Amendment right against self-incrimination.

The plaintiff asked to proceed under a pseudonym because if he were to identify himself in court as someone who lives and works within now-prohibited zones, he would be exposing himself to potential prosecution — or self-incrimination — even though the law may be unconstitutional. He cited further potential harm if, in filing the suit under his real name, the community reaction might force him to move — something he's specifically trying to avoid by filing the suit in the first place. Campbell has granted that request.

Soon after the suit was filed, Campbell issued a temporary restraining order instructing the state not to attempt to prosecute the plaintiff. That temporary restraining order expires today, but now the injunction is in effect as the case proceeds. During a lively hearing in Campbell's courtroom yesterday, Assistant Attorney General Michael Meyers refused to address the law's constitutionality, despite Campbell's repeated requests that he do so. ''I want to know if the state attorney general is going to come through this door and argue that this law is constitutional,'' Campbell said, his voice rising. ''I'm not going to let you keep dodging it.''

Instead, Meyers chose to argue only that Doe's claim was improperly raised and that the federal court should not rule on the constitutionality of the statute. Because Doe has not been arrested for violating the new law, Meyers said, the plaintiff's claims that he had been harmed were ''only speculative.'' He repeatedly tried to assure Campbell that the Davidson County district attorney general's office had no immediate plans to begin prosecuting sex offenders for living too close to a school. Campbell wondered aloud whether one had to wait to be handcuffed, placed in a squad car, paraded before the press and thrown in jail before claiming he had been harmed enough to warrant a federal lawsuit.

Campbell found that in Doe's case, the new state law ''goes beyond any intent to craft a civil regulatory scheme and is, in fact, punitive.'' Therefore, he wrote, the law ''constitutes a retroactive punishment'' that is unconstitutional. In motions filed before the hearing, Horst wrote that his client must live now while constantly wondering if and when the authorities are going to come arrest him, despite the district attorney general's current reluctance to prosecute violations of the statute.

Even if a district attorney quietly acknowledges the constitutional problems and declines to prosecute, Horst wrote, what happens when a neighbor finds a name on the registry and demands that the sex offender be arrested? ''The general public has a right to expect that laws, especially criminal laws, are constitutional, and that they will be enforced not only vigorously but uniformly,'' Horst wrote. ''A law that is neither is not in the public interest.''

Horst has indicated that he intends to seek that the ongoing case be certified as a class-action suit on behalf of all Tennessee sex offenders, who, like the plaintiff, found themselves afoul of the law only after the new statute took effect.

Case timeline:
1996 — ''John Doe'' begins contract work for a Davidson County firm, which now employs him. That company is within 1,000 feet of a school.

January 2000 — John Doe is convicted of sexual battery in Davidson County Circuit Court and receives a sentence of six years on probation.

Later in 2000 — Doe purchases a home in Davidson County within 1,000 feet of a school.

July 1, 2003 — Tennessee's sex offender registry law — TCA 40-39-111 — becomes effective. It prohibits a sexual offender from ''knowingly establishing a residence or accepting employment within 1,000 feet of a school, day care facility or other child-care facility.'' Violating this law is a misdemeanor.

Aug. 1, 2004 — Tennessee replaces the law with TCA 40-39-211, which changes the language to ''reside or work within 1,000 feet'' of a school or child-care facility. A violation constitutes a felony, with a maximum penalty of six years in prison and a $3,000 fine.

Aug. 6, 2004 — U.S. District Court Judge Todd J. Campbell issues a temporary restraining order allowing convicted sex offender ''John Doe'' to live and work within 1,000 feet of a school while a broader hearing in the case was pending. : by ROB JOHNSON, Staff Writer ..more..

8-8-2004 Tennessee
Sex offender can live and work near school for now, judge rules: Only this one offender!

He's also allowed to sue as 'John Doe': For now, one Nashville sex offender living and working within 1,000 feet of a school won't be subject to criminal prosecution, after a U.S. District Court judge issued a temporary restraining order yesterday arising from a legal challenge to a new Tennessee law.

He has filed a federal suit under a pseudonym because he believes that identifying himself would open himself to state prosecution — under a law that he contends is unconstitutional. The plaintiff also fears retribution from his employer and the community if his name were to become known, court records show. For the purposes of yesterday's hearing, U.S. District Judge Todd Campbell allowed the plaintiff to continue to be known publicly as ''John Doe.'' Campbell, however, has in hand a sealed affidavit that discloses the plaintiff's identity only to the judge.

Because the lawsuit has not been certified as a class action, Campbell's temporary restraining order applies only to the plaintiff in this case. In his filings, Horst argues that the new statute is unconstitutional on a variety of grounds. Among his arguments:

The law improperly criminalizes a past action that at the time was legal — in this case, living in a house and holding job within 1,000 feet of a school; In being banished from a certain area, Doe is being twice punished, which constitutes ''double jeopardy.''; The new law ''significantly infringes upon the offender's right to seek employment, especially in metropolitan areas,'' where there are scores of schools and child-care centers.

He says that, literally applied, the law would prevent sex offenders from becoming truck drivers, construction workers or delivery men, because it would prohibit them from working in many areas of the state, even if they are just passing through as part of their jobs; The state's conclusions in passing the law are ''irrational'' because many sex offenders were not convicted of crimes involving children and because many offenders ''have never shown any sexual or dangerous predilection toward children.'' ..more..ROB JOHNSON Staff Writer

8-4-2004 Tennessee
Offender sues over sex (residency) law

Within a day of taking effect, the state’s tougher sexual offender registry law has come under legal attack over a provision that restricts where offenders may live. A Davidson County resident, named only as John Doe, filed a lawsuit in U.S. District Court in Nashville Monday, claiming the law is violating not only his constitutional rights but those of all sex offenders covered by the law.

The new law left intact the school-zone restrictions, which ”violates a number of constitutional provisions,” said the plaintiff’s attorney, Brent Horst of Nashville. Horst is asking the federal court to block enforcement of the law and grant class-action status to an estimated 7,000 sexual offenders, who would have very few choices in where they could live.

He also said the law doesn’t take into consideration the severity of the criminal conviction and whether the sexual crime was against a child. “For example, you can have a 19-year old kid who has sex with his 16-year-old girlfriend. Technically, that’s statutory rape, and now for the rest of his life he can’t live in a significant part of the community,” Horst said. A federal judge in Iowa last year struck down a similar law there that limits residency within 2,000 feet of a school, Horst said. ..more.. Chris Lewis | Nashville City Paper.com

10-10-2003: Texas: Issue: Sex Offender Registration - see below.

» 10-10 Texas: EX PARTE ROBINSON (10/01/03 - No. 1294-02)Texas Criminal Court of Appeals! Texas's sex offender registration statutes do not violate, procedural due process and are not cruel and unusual punishment. (by Findlaw.com)

12-5-2003: West Virginia: Issue: Sex Offender Registration - see below.

WEST VIRGINIA: Haislop and Reed v. Gary Edgell, Supt., WV Dept. of Public Safety, et al. , No. 31261
State Court: West Virginia Supreme Court, Decided 12-5-2003 decision below!
  • This West Virginia Supreme Court, Case No:31261.
    • Question Presented:This appeal involves certain constitutional challenges to the West Virginia Sexual Offender Registration Act. The defendants, who were convicted of sexual offenses, filed an injunction in the Circuit Court of Wood County attempting to prohibit publication of their names as sex offenders, for a "LifeTime," as provided under the Act.

    • Lawyer is: William B. Richardson, Richardson, Richardson & Campbell, Parkersburg, WV.
    • However, is Attorney Richardson the correct attorney to present this issue? 4-13-2003 The Intelligencer, Wheeling News-Register: A lawyer for one of the three men who want the West Virginia Supreme Court to limit distribution of information on convicted sex offenders has made an excellent argument against his client. We're confident state Supreme Court justices will uphold use of the State Police sex offender registry as a needed measure to safeguard the public. As the attorney himself made clear (unwittingly, we're certain), there's a need for the law.
West Virginia Supreme Court of Appeals 12-5-2003, decision:
LifeTime Registration is CONSTITUTIONAL, for these defendants!!!!!!!

**** Our Analysis of West Virginia Decision ****
The West Virginia court upheld "LifeTime Registration" based upon the fact that, the U.S. Supreme court recently upheld both the Conneticut and Alaska cases; and in those cases, each of those states had a "LifeTime Registration" element in their state registry law. The West Virginia court then concluded, because the U.S. Supreme court did not declare either the Conneticut or Alaska cases unconstitutional, they also did not declare "LifeTime Registration" unconstitutional, hence "LifeTime Registration" is constitutional.

That logic is seriously flawed, the question of whether or not "LifeTime Registration" is constitutional or not, was not before the U.S. Supreme court in either case. The lawyers never presented that question, and courts do not address any question that is not before the court, unless it is a threshold question necessary to the question they are deciding upon. (e.g. the U.S. Supreme court did say, in Connecticut & Alaska cases, that "defendants may have a substantive due process claim but it is not before the court, so we do not decide that question.) Clear proof that the West Virginia court erred in their decision on "LifeTime Registration."

Further, the West Virginia court raised the question of sex offender recidivism again stating it is high and quoted what the U. S. Supreme court said on that issue in the Connecticut and Alaska cases. The U.S. Supreme court made that statement based upon what it held in McKune -v- Lile (536 US 24) (a case about whether or not the state has an interest in rehabilitating sex offenders by providing therapy).

The question of whether or not to provide therapy to those incarcerated in prison, is a far cry from, whether or not to require that sex offenders register for a LifeTime in society! There is no correlation between the two issues, in fact, the latter issues is based upon a question of recidivism!

None of the courts mentioned above, had the opportunity to review "sex offender recidivism" based upon the 2003 (latest) statistical studies on "recidivism". The latest studies show, not only that earlier studies were flawed, but also that sex offender recidivism is very low, lower than most all other offender groups. The courts were also denied the opportunity to review the Department of Justice statistical proof of the harm being done to offenders and their "Zone of Associations" which supports that, registration is a new "System of Punishment."

Finally, while the West Virginia court recognized the issue of "offenders proving rehabilitation" (also recognized by the U.S. Supreme court in the context of being able to be excluded from registration) it said, since the current defendants provided no evidence of "proof of rehabilitation," therefore, we have no choice but to uphold the lower court opinion. Our question is, why did the court not remand the case to the lower court on that issue??

Again we have a case in which the lawyer failed to present the necessary evidence to support the claims of the sex offenders contesting the registry law.

In this West Virginia case, in the news media prior to the court's decision, the lawyer, made a statement against his clients interests, that made us feel he may not be the correct lawyer for this case. See news report above. Now we wait for another defendant to raise the issue again with appropriate evidence.




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