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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.
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
Issue: Sex Offender Registration - Residency portion only.
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..
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
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)
Issue: Sex Offender Registration - see below.
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)
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.
Issue: Sex Offender Registration - see below.
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.
1-17-2003: Florida: Issue: Sex Offender Registry is unconstitutional, only as to "Sexual Predators."
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."
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
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
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.
Issue: Sex Offender Registry - "Residency Law Provision"
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
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.
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.
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.
Issue: Sex Offender Registration - "Shouldn't have to register because never convicted of a sex offense!"
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)
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
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)
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)
Issue: Sex Offender Registration - Various Issues, see below.
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.
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
Issue: Sex Offender Registration - see below.
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."
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.
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.» 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.» 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.
10-6-1998: Pennsylvania: Issue: Sex Offender Registry - see below.
Issue: Sex Offender Registration - Residency laws.
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.
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..
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
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
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)
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!
LifeTime Registration is CONSTITUTIONAL, for these defendants!!!!!!!
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.