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*** Sex Offender Registration & Community Notification ***
Term of Registration & Community Notification
The term of registration (which should be based upon the crime committed) should be likened to the penal laws upon which they are based, in that, there should be some system of proportionality in the term of registration.
Current terms of registration, 10 -or- 25 years, or a lifetime, already say something. These legislative choices show there are factors why one should be considered over the other, but we don't know those factors (excepting 1 or more crimes, or being in prison on such an such a date, which bears no relationship to a term). Hence legislatures currently believe in the principle of proportionality built into the penal laws they have already enacted.
However, that leads us to the real question, what should the term be, why is 10 years correct for one group of offenders, and 25 years correct for another group of offenders, and lifetime for yet another group? While these choices show some proportionality, we do not believe they are correct at all, especially lifetime registration! The latter is clearly a bill of pains & penalties ( a lesser form of a Bill of Attainder).
One must never forget that, while current laws may say, such an such is not punishment or is OK, those cases may be based upon laws as they were in the past. Laws governing sex offenders change constantly each becoming more and more onerous.
One prime example of that principle is, see case in footnote (5), which holds, if a defendant does not appeal his sentence following conviction (a sentence in which the judge "included registration as part of the sentence"), then that defendant cannot appeal the term of registration later on. What about those cases where "registration" was not even law yet, or those where the judge did not include "registration" as part of the sentence?
"LifeTime Registration" or "Lifetime Parole" for all sex offenders, would both severely stigmatize, and require sex offenders incur additional costs for the rest of their lives, and ignores all proportionality of penal laws. To say that is not "further punishment" is to pervert the English language. Further, that would require states to have a parole and probation force that boggles the mind.
Recently (Dec 2003, see news article below and our analysis) the West Virginia Supreme Court found "LifeTime Registration constitutional. One only has to read the case to understand, there is no decision by this court, it merely held constitutional by a miscontruction of an earlier U.S. Supreme Court ruling which didn't even address "LifeTime Registration."
Currently, offenders who have a "Lifetime Registration" requirement are automatically denied federally subsidized housing. Generally at a time of their life that they need assistance the most, as disabled and/or aged persons. Why these folks have not yet contested this is beyond me.
Finally, here is the real hypocrisy of registration, while the public -may know- where offenders live, they -do not know- where offenders are at any point in time, further, the presumption behind registration is that crimes will be committed at the offender's home. If true, then how does registration stop the crime? Legislatures have done nothing but give the public -the appearance of safety-, based upon the presumption (without proof of any kind) that ONLY sex offenders (IF THEY HAVE BEEN PREVIOUSLY CONVICTED) are the ONLY threat to society!
For whatever period these folks were in the work force, they paid taxes and these taxes subsidize these programs, accordingly they should be able to access them. Many of these same folks have disabilities as well and can little afford other arrangements. These laws were not in effect then, and have been applied retroactively (Ex Post Facto violation). All this is based purely on their status as a sex offender, and no hearing is allowed to contest or refute anything. Another Bill of Pains and Penalties!
Unless every state is going to hire a parole/probation officer to live with every offender 24/7 for the rest of their lives. There should be some real tangible basis for a law, instead of a hypothetical basis.
DEFINITIONS / UNDERSTANDINGS:
"Term of registration," (1) means the length of time, in years, that a person that is subject to registration must register with the state they live in. Throughout the states it appears that 10 or 25 years, or lifetime are the terms we have encountered.
"Who determines, or how is, the term of registration," (1) generally it is written into the statutes. We feel it should be within the discretion of judges at sentencing to set a term of registration, but so far it is not within their discretion. (5)
"What determines whether the term is 10 years, 25 years or lifetime," (1) each state has developed its own laws, so it is set by each state legislature. One thing has come out in this area, every legislature has a belief that all sex offenders will commit another sex offense (a myth), and that belief underlies all decisions, they never present any evidence(3) whatsoever to support why 10 or 25 or lifetime is appropriate in any one case. (5)
Under the federal suggested guidelines for state sex offender registration programs (Title 42 section USC 14071) it suggests that the minimum state program must be 10 years, and if a second offense then lifetime registration (14071(b)(6)). Given those are only "Guidelines" they have no force of law and states are not mandated to follow them to the letter! However, most all states have begun with those as a minimum. (2)
Arguments About "Judges Setting the Term of Registration:"
At first glance we also felt judges should set the term at sentencing, but there are other arguments which say that may not be a good idea. It is thought that, if a person goes to prison they become hardened and-or if a person refuses to take therapy to reduce their risk of reoffense while in prison.
To all of these arguments and others we propose, at sentencing the judge has a pretty good picture of the offender, he has the offender's life history before him, so we feel the judge should set a min and max number of years for registration, if at all (some may be no public threat). Then parole boards could tailor it some based upon the same factors that grant a parole -including therapy in prison-. Following initial parole or probation it could be further tailored by the offender's compliance with parole or probation conditions.
Such a system seems fair as long as there is a right to appeal any interim decision, administrative or otherwise, made by a state person or board.(4) -and- (5)]
Arguments About "Legislatures Setting the Term of Registration:"
There is no doubt that registration and community notification affects the legal status of registrants in the community, and affects them negatively, for 10 years or 25 years, or a lifetime. Courts and legislatures have consistently used wordsmithery to circumvent that, claiming it is a consequence of the conviction, while ignoring other threshold issues like, why didn't offenders before registration laws suffer the same affects/effects to their legal status in the community?
Given the term is set by the legislature, with no possible judicial intervention or appellate process, and the offender's legal status in the community has been so tainted for such a long period, it has been said that this is a "new system of punishment," a bill of pains and penalties.
Such a bill of pains and penalties is within the constitutional prohibition of Bills of Attainder, because in essence they inflict a punishment (less than death - being the effect on the offender's legal status in the community for a long period of time, and what flows from that). Courts and legislatures will argue that, it has already been said and decided by the courts, that legislatures did not intend punishment, therefore it cannot be a bill of pains and penalties.
To that argument we raise the following, two cases decided by the US Supreme court, Cummings -v- State of Missouri (4 Wall 277, 233) and Ex Parte Garland (4 Wall 333) both involved the taking of an oath regarding ones profession, each law being originally enacted by legislatures and not for the purpose of punishment, both of which the US Supreme court struck down as constitutional violations, because they effectively punished those persons.
That established the principle that legislatures can and do create laws that effectively punish even though they did not mean to punish when they enacted the laws. Further, neither of those cases would pass the
KENNEDY v. MENDOZA-MARTINEZ, 372 U.S. 144 (1963) tests either. Unique systems that punish, will not always be proved to be punishment under that testing scheme.
As to legislatures are presumed to know all law and therefore cannot be assumed to have made any error when enacting laws. We present every law that has ever been enacted by any legislature that some court later declared unconstitutional (by requesting judicial notice of the court as to those court decisions)!
For now, this is what we have, and we leave these thoughts for some inspiring lawyer!
-- Term of Registration Violating Prior Agrreements with a State --
In Michigan they have what they call the Holmes Youthful Trainee Act (YTA) (MCL 762.11 through 762.16).
"762.11 Criminal offense by individual between ages 17 and 20; assignment to status of youthful trainee. Sec. 11."
If an individual pleads guilty to a charge of a criminal offense, other than a felony for which the maximum punishment is life imprisonment, a major controlled substance offense, or a traffic offense, committed on or after the individual's seventeenth birthday but before his or her twenty-first birthday, the court of record having jurisdiction of the criminal offense may, without entering a judgment of conviction and with the consent of that individual, consider and assign that individual to the status of youthful trainee.
That act permits those folks to be placed on a form of supervision in the community instead of being convicted of a crime, upon successful completion the court will effectively eliminate all traces of the criminal act. This gives youths a second chance without the stigma of a criminal record. This also permits these youths to complete job applications, contracts, apartment leases, etc., without having to list the crime as a conviction.
However, along comes their sex offender registration act which requires that, IF THE UNDERLYING CRIMINAL ACT WAS A SEX OFFENSE, that youth must register with the sex offender registry, and have his name placed on the Internet registry so that the public knows he has been convicted of a sex crime (no indication it was under a special act i.e., YTA and is really not a conviction). While the left arm of government erases the conviction, the right arm -undoes- the good of the left arm.
A few offenders who were subjected to this -absurdity- appealed, People -v- Stanley, Rahilly, Harns, 7-31-2001. As hard as it is to believe, the courts actually feel they have reconciled these two laws. We feel this is the best description of "Wordsmithery" we have ever read! If you read the decision, especially read the dissenting judges opinion.
The complete effect of the YTA act, which by virtue of the act itself is a state promise, is abrogated by another law that will be effective at the very end of the jurisdiction of the YTA Act for the term of registration. Public safety, hypothetical as to all sex offenders, in theory abrogates law!
"Doctrine of Laches," is based upon the maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to advserse party, operates as bar in court of equity. The neglect for an unreasonable and unexplained length of time under circumstances permitting diligence, to do what in law, should have been done. Conduct of party in a situation where his rights will be imperiled and his defenses embarrassed is basis of laches. Black's Law 6th. Ed.
In essense, the "Doctrine of Laches" bars any new issue raised as the result of a prior conviction. The state cannot simply come along at any time and declare that previously convicted sex offenders must be monitored in any fashion (10 years, 25 years or a lifetime) when said issue could have been raised at the point of the conviction. Especially when monitoring (registration & community notification) is clearly detrimental to the sex offender and his or her family.
Too often today we hear states claim, that sex offenders received all the due process needed at their trial (or conviction). Actually courts have held that too, and allowed the states to raise new issues to control sex offenders way past the date of the conviction. This violates the "Doctrine of Laches" a maxim of law that has ruled many a case. Its egregious to say, the offender cannot assert rights after the conviction, but the state is permitted to do what it denies the offender!
There must be finality in judgement, which states also assert, but violate by these new laws that circumvent "finality-in-judgement" and "the doctrine-of-laches." Without these principles all law is meaningless!
(1)-- These statements are with respect to "TODAY - Oct 2003." Now, because registration laws change, in some respect, with every coffee break legislatures take; you never know whats coming next. There seems to be very little, if any, research done before laws are enacted.
It seems that, someone from the community comes forth saying, "hey this will protect our children - make the offender do or restrict them by xx yy zz," so therefore it should be a law and is proposed as a bill. Sounds good -feel good- legislation!
A prime example are the "residency laws," what do they protect? When children are at school, day cares and the like they are being monitored by an facility employee, so what good are the residency laws? Final note, the crimes against children who attend these facilities, have been by employees of the facility, not registered sex offenders living with xx miles/feet of the facility.
(2)--States do not want to lose federal funding for not following the guidelines. That is what causes knee-jerk legislation that is not thought out. States fear the loss of federal funds, and enact anything, be it right or wrong.
(3)--The lack of evidence may someday be contested by someone, but for today that is the way it is. NOTE: Michigan initially started with 25 years and later added the 10 year provision, again someone may contest this unequal application of the laws at some point.
(4)--It was brought to our attention that the entire system of "registration" is likened to the system of "driver's licenses." By "system" it means the paperwork system, driver's licenses merely keep track of the person's personal information -AND- current address. Likewise is "sex offender registration."
Drivers are permitted an appellate process for any step in their system when something is ruled against the driver. Especially when there are DWI or DUI convictions where that person is considered a threat to society and may have had their license revoked, they have an appellate process. Given sex offenders are not permitted an appellate process it seems an unequal application of similar laws.
(5)--There is an interesting case which came out of the state of Arizona (Veronica Jeanne Fisher -v- State of Arizona, Court of Appeals, Division One. This court held that, if a person is sentenced to sex offender registration and fails to appeal the "term of registration" (Lifetime in this case), then the person is barred from contesting the state mandated "Term of Registration." The key in this case, and all should recognize is, this person was sentenced to registration, unlike most folks subject to registration!
Flowing from this case are a few good issues or unanswered questions for courts to come:
a) Can the "Term of Registration" be appealed? If so, then the answer cannot be "Yes/No," but must be, "for how many years," because, since the legislature sets the term at "xx," to say it is not applicable is to say that registration itself is not applicable.
b) Given the court held that the "Term of Registration" cannot be appealed after-the-fact, the court is supporting that the "Doctrine of Laches" is applicable, in that, one party cannot after-the-fact change their prior position to the detriment of the other party.
(6)--Many lay persons and professionals believe that child sexual abuse (CSA) causes intense harm, regardless of gender, pervasively in the general population. The authors examined this belief by reviewing 59 studies based on college samples. Meta-analyses revealed that students with CSA were, on average, slightly less well adjusted than controls. However, this poorer adjustment could not be attributed to CSA because family environment (FE) was consistently confounded with CSA, FE explained considerably more adjustment variance than CSA, and CSA-adjustment relations generally became nonsignificant when studies controlled for FE. Self-reported reactions to and effects from CSA indicated that negative effects were neither pervasive nor typically intense, and that men reacted much less negatively than women. The college data were completely consistent with data from national samples. Basic beliefs about CSA in the general population were not supported.
See A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples, by
Bruce Rind - Department of Psychology Temple University; Philip Tromovitch - Graduate School of Education University of Pennsylvania; Robert Bauserman - Department of Psychology, University of Michigan.
--- News Articles on Term of Registration ---
» 12-6 West Virginia: Court Upholds Sex Offender Registry!
The West Virginia Supreme Court says the state can continue to put its sex offender registry on the Internet and keep publicizing the information as long as the offender lives.
A group of convicted sex offenders had asked the court to limit the way West Virginia publicizes personal information they must give State Police after their release. They appealed a ruling by Wood County Circuit Judge Jeffrey Reed that the public's right to safety outweighs any privacy concerns of the offenders.
The opinion also says the registry does not violate anyone's due process rights even though there is no mechanism for a person convicted of a sex crime to prove he or she is no longer dangerous to the public.
(by WTAP, Associated Press)
*** Main Issue: Life Time Registration ***
This decision is instructive for other offenders yet to come, with new lawyers, and there are reasons why the courts holding is flawed. OUR ANALYSIS
» 10-5 Illinois: HEARINGS TO DISCUSS SEX OFFENDER LIFETIME SUPERVISION!
Registered sex offenders should be required to have lifetime supervision once they are released from prison. That's the opinion of Illinois Attorney General Lisa Madigan.
Madigan and Illinois House Judiciary Committee Chairwoman Mary K. O'Brien, D-Reddick, will hold a public hearing to solicit input from victim advocates, law enforcement, criminal justice experts and treatment providers on Madigan's proposal. The hearing is scheduled at 1 p.m. in the Batteau Room at John A. Logan College. State Sen. Gary Forby, D-Benton, and State Rep. John Bradley, D-Marion, are also scheduled to attend.
(by HAROLD G. DOWNS, THE SOUTHERN)
» 10-10 Illinois: Madigan holds hearing on sex offenders!
Beverly Clark, a woman from Clarksville, Ill., was one of 20 witnesses who testified at the Lifetime Supervision of Sex Offenders Hearing Tuesday at John A. Logan College in Carterville.
Attorney General Lisa Madigan, along with state Sen. Gary Forby and Representatives Mike Bost, John Bradley, Ron Stephens, Brandon Phelps and Mary Kay O'Brien, listened to Clark's testimony with somber faces.
"We're here to gather information, in order to put together the best possible piece of legislation we can. We want to find something that works and we also want to know how best we can treat the sex offenders," O'Brien said.
Williamson County State's Attorney Chuck Garnati spoke before the panel of politicians. "I have three basic issues I'd like to bring up. First, I highly support new legislation that would make sex offenders register their locations for the duration of their natural lives. It's needed. My common sense tells me that these people are dangerous and probably will be for the rest of their lives," Garnati said. "Second, I believe that these hearings are necessary to inform the public, even law enforcement and judges, that when sex offenders fail to register and give their new address it is a big deal and should be taken seriously."
Garnati asked how Madigan plans on being able to pay for the legislation, as well as treatment for the sex offenders. "Treatment is something we need and I think it'd be helpful. How are we going to pay for that though? Williamson County is the same as any other county in Illinois; we're struggling to make ends meet," he said.
Madigan said that the sex offenders themselves would most likely pay for sex offender legislation and treatment, by paying an increase in their registration fees. "We'll find a way to pay for it," she said. "We'll find a way."
(by Metro Armstrong)
» 9-8-03 New Jersey: Unforeseen problems arise with sex offender supervision!
The Community Supervision for Life portion of the law also has led to a lawsuit challenging restrictions that prevent offenders from leaving New Jersey if other states refuse to oversee them.
The state has more than 1,530 sex offenders on community supervision, which all paroled sex offenders in New Jersey must serve for at least 15 years. Officials say enrollment is rising by 30 per month, and growth is expected to continue. Thirty of the state's 316 parole officers are assigned to the supervision program. Thomas James, director of board's parole division, predicted that staffing level will be soon be insufficient.
(by The Associated Press)
» 9-26 West Virginia: State court to hear sex offender registration challenge !
CHARLESTON - The West Virginia Supreme Court will consider a challenge, filed by several Wood County convicted sex offenders, to the West Virginia Sexual Offender Registration Act. Hearing in the case is scheduled for Oct. 7, as the fifth case that day. The hearings begin at 10 a.m.
The defendants had challenged the issue of unlimited publication of their personal information in an effort to keep it off the registry and from being publicly released at town meetings. The petitioners challenged the legality of being required to continue to update their registry for the rest of their lives and contended publishing the information was a violation of their right to privacy.
Parkersburg attorney William Richardson Jr., who represented several of the defendants, asked the court for a stay on the ruling to allow time for an appeal to be filed with the Supreme Court. In April, the high court agreed to hear the appeal. Richardson said each case should be considered separately.
"It needs to be tailored to the level of dangerousness. Everyone shouldn't be lumped together as one; they should not all be required to register for the rest of their life. We need to recognize that people can change, some can be rehabilitated and they should be entitled to a hearing to determine the level of any danger to the community," Richardson said.
(by PAMELA BRUST)