Legal Issues & Court Cases Affecting Sex Offenders & Truthful Recidivism

Legal Issues and Court Cases Affecting Sex Offenders

Topic Report:
The Stalking of Sex Offenders: Whats Wrong With Megan's Law?

Report Summary

This report discusses problems with Megans' laws, and how as implmented, they are a System of Additional Punishment never before found in history.

Legislators and courts claim these were enacted to "Protect the Public," but fail to say who of the public. However, the perception is that, these laws are to protect women and children.

Most all Megans' laws contain a "Warning," that the laws are not to be used to harass or commit criminal acts against the offenders listed in the registries. Those "Warnings" show that Megan's laws were also meant to protect the offenders.

The states which have failed to include "Warnings," deny those offenders equal protection under that law.

This report discusses how Megans' laws, are being used to "Stalk" sex offenders, their families, and those who associate with them.

The report goes on to show who it is that is stalking the sex offenders, and that, there is No Enforcement of the Warnings (when present), and that, coupled together this has become a "System of Further Punishment" from which there is no recourse.

Registered offenders are in fact ostracized from communities and society in general and relegated to isolation or homelessness.

Given courts and legislatures are aware of what this law is doing, and ignore same (fail to enact legislation to stop the stalking, harassment and vigilantism), then they silently align with the violators.

It is true that, "One is either part of the problem or part of the solution," and when you align yourself with the problem as legislators have done by their omissions, then "protect the public" really means "further punish the offenders." Hence violate the Ex Post Facto clauses of state and federal constitutions.

Finally, to interpret that "Protect the Public" means only women and children, and the same law provides no protection for the listed offenders (either no Warnings, or to have Warnings and refuse to enforce them) is to deny the registered sex offender and his or her family and associates, the equal protection of the law, another constitutional violation!

eAdvocate

Privacy Rights
Of Residence

In Olmstead -vs- U.S., 277 U.S. 438 (1928), the U.S. Supreme court pointed out that, every citizen has a "Privacy Right" which is protected by the 4th amendment. This case concerned an illegal wiretap placed by government officers to obtain information about a possible conspiracy. Neither the wiretap nor the conspiracy is relevant to our discussion, however, the case pointed out something that is relevant, the 4th. Amendment establishes a "Privacy Right" which shall not be violated by the government. Study the wording of the 4th amendment: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment.

Justice Brandeis (in his dissent, which became the foundation of many later civil rights decisions) then said, "The right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

Justice Brandeis then quoted "A sufficient answer is found in Boyd v. United States, 116 U.S. 616 , 627-630, 6 S. Ct. 524, a case that will be remembered as long as civil liberty lives in the United States. This court there reviewed the history that lay behind the Fourth and Fifth Amendments. We said with reference to Lord Camden's judgment in Entick v. Carrington, 19 Howell's State Trials, 1030:

'The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach farther than the concrete form of the case there before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employe of the sanctities of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security [277 U.S. 438, 475], personal liberty and private property, where that right has never been forfeited by his conviction of some public offense - it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden's judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence of a crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.'3 "
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Accordingly, constitutionally established Indefeasible Privacy Rights of every person in society, cannot be abrogated by the fact that someone has been convicted of a crime. Constitutional rights are supreme to legislative acts!

Conviction of a crime does not eliminate constitutional rights. For those persons not under the jurisdiction of the government (i.e., parole, probation, etc.,), sex offender registry laws violate their Indefeasible Privacy Rights! A substantive constitutional right which legislatures do not have jurisdiction to revoke!

Do not confuse these rights by calling them "Sex Offender Rights," as they are not established just for sex offenders, they are rights that everyone in society has and flow from the constitution. Privacy rights flow from other parts of the constitution as well, we only mention this one for our Topic discussion!

the
Punishment
System

Todays registry laws violate constitutional rights of only one class of offenders, sex offenders! The question becomes, how is the government actually violating "indefeasible privacy rights" via the registry laws?

Historically, a system has been in use to disclose criminal record information, but the evolution of the system has caused it to slowly become a punishment scheme. No court has reviewed the system in light of its evolution.

Record Creation Phase: Historically the criminal process has been, a person was arrested, arraigned, tried, and sentenced, hence the government's criminal record began. Regardless of a sentence of jail, prison or probation that person's criminal record was maintained in a government data base and updated as needed.

Record Dissemination Phase: The "system" of public dissemination of that criminal record, was on an as-needed basis. If a person, company, entity, etc. needed to know if an applicant had a criminal record, they requested that person's criminal record. Following receipt they made their decision and advised their applicant. They dealt with the applicant on a one-to-one basis.

Note: If there were anything distasteful about the person's criminal record, it was revealed between the applicant and the one reviewing the record.

Today the "creation phase" is virtually the same for anyone convicted of a crime, excepting that when it applies to a sex offender they are registered in a sex offenders' registry (a new government data base) and they must give a DNA sample which is entered in yet another new government data base. In addition, the updating of the government records, is the responsibility of the sex offender who must periodically report to a government agency and update, or verify that no change has taken place. Often there are fees and charges attached to these steps.

While it is acknowledged that, the dissemination phase as described above, still occurs for non-sex offenders, and in certain circumstances for sex offenders depending on the needs of the requestor of the criminal information.

In reality the "dissemination phase" has changed dramatically for Sex Offenders only, the as-needed basis system is eliminated and replaced by a mass-dissemination system. Admittedly each state chooses its own method of dissemination, and all of the following are not used everywhere: the newspaper, community notices where the offender lives works or goes to school, community meetings to notify them about an offender moving in, possibly house-to-house notifications, and in one state forcing the offender to mail notifications to every home within one mile, lists of all offenders in a jurisdiction at the local police station, and in most states the Internet. Often the dissemination is repeated whenever the offender moves or changes any information on his/her registration form.

Accordingly, our legislatures have created a system (Megan's Laws) which places the sex offender under constant worldwide public scrutiny. No other offender type is so scrutinized!

That is the essence of the 4th amendment violation. Megan's laws seize, without probable cause, the societal privacy of the ex-offender and those close to him or her (i.e. families); and sometimes for life!

Home Topic Index

Public Reaction to "Sex Offender Registries"
___"HOW" Megan's Law Causes Stalking___

The sex offender and family members have a privacy right in their residence, as does everyone else in society! The state has an interest in protecting the well-being, tranquility, and privacy of everyone's home, and that is of the highest order in a free and civilized society. Carey -v- Brown 447 US 455, 471 (1980).

Our belief is that, Megans' laws violate the very core of residential privacy rights under the color of law. As a result of these laws registered sex offenders, and often their family members too, suffer vigilante attacks, harassment and many other denials, including some so subtle they are often overlooked; the families and children of sex offenders.

Some sex offender registries contain warnings for the public, as to how the registry should not be used, the San Diego Sex Offender Registry web site contains the following warning:

“It is illegal to use information obtained through this web site to commit a crime against a registered sex offender or to engage in discrimination or harassment against a registered sex offender. A person is authorized to use this information only to protect him/herself or a child who may be at risk." (San Diego Regional Sex Offender Map) Makes one think...

Disclaimers, warnings and cautions, they come in one form or another, and are found on mostly everything distributed by any governmental agency, whether it is their Internet registry, a Public Community Notification notice, and often even by the media in news reports.

OK, lets review exactly how these forms of community notifications, are being used, and who is using the information, and for what purpose the information IS being used?

Articles showing how registry information is being used!
-Notice who is using/mis-using the information-

-- Public Officials --
Sex-offender signs hailed and faulted:..Readers weren't shy in offering opinions of Judge J. Manuel Bañales' decision to order 21 registered sex offenders to place signs in their yards that say "Danger - Registered sex offender lives here" and bumper stickers on their vehicles that say "Danger - Registered sex offender in vehicle." Several readers, particularly those who were victims of sexual abuse or who have relatives who were victims, applauded the judge in Caller-Times Sound-Off responses received Saturday. But more said the ruling was ill-advised. Readers said Bañales' motives were political, that the signs are unconstitutional and unfair unless they are used for all criminals and that the signs would damage the property values of neighbors. (5-20-2001 Caller.com)

Sex offender's suit claims harassment:..The lawsuit, prepared by Ocala lawyer and former Citrus County judge candidate Charles Horn, said Sheriff Jeff Dawsy approached members of the press and told them Couch was convicted of molesting young girls and passed out fliers in the community. Dawsy (Sheriff) could not be reached for comment Thursday. (4-26-2002 St. Petersburg Times)

Sex offender information available:..A newspaper has reported that state Assemblyman George Runner and city officials in Lancaster including Mayor Frank Roberts and Palmdale Mayor Jim Ledford have picketed outside an apartment where Andre Bradford, 41, a registered sex offender, has moved in with relatives. Bradford was released from Atascadero State Prison on Sept. 18 after serving 22 years for rape and burglary. More than a dozen residents have demanded the eviction of Bradford and passed out fliers alerting passersby that he had moved there.(11-16-2000 The Acorn)

California ships sex offender to Nevada:..Linares, who is living in Reno with friends, registered with police as a sex offender as required by law and notified the INS of his whereabouts, authorities said. Linares, 49, was living with relatives in Monrovia but protesters complained and helped raise $700 to get rid of him. Monrovia police put him on a plane to Reno, where he was found Aug. 31. (9-7-2000 Las Vegas Review-Journal)

Albuquerque, New Mexico (The Full Story):ALBUQUERQUE - They burned David Siebers' house to the ground. The arsonists could have been neighbors. But then again, they could have been almost anybody. The fire certainly came as no surprise to most people here. They have watched Siebers being pursued by police, helicopters, cameras and crowds on their TVs many nights. The mayor of Albuquerque, Martin Chavez, has made Siebers' banishment from the Albuquerque area his mission.(5-4-2003 Denver Post.com)

I've Been Treated Like A Monster':..ABUSE OF A LEGAL PROCESS???After serving 52 weeks in a juvenile facility he has been considered, for a decade, a Level 1 sex offender, the least likely to re-offend. But Island County decided this week, when it was learned Isley was moving to Oak Harbor, that the county considers him a Level 3 sex offender, the most dangerous level indicating a high potential to re-offend. By law, his picture and the street where he was planning to live were published. Note: Only Level 3 offenders receive public notification. Interesting, you decide whether it was an "Abuse of a Legal Process"??? (4-16-2003 KomoNews 1000)

-- The General Public --
Sex Offender To Move Next Door To Preschool:..Parents in one Clackamas neighborhood are fighting mad, upset that a convicted child rapist is planning to move into their neighborhood, right next door to a church preschool. The sex offender's home is near Southeast Thiessen and Johnson roads . Parents picketed outside the house Thursday night. They say their community counts, they want to be safe, and don't want a rapist living next door. "There's about 26 signs here, but we're expecting over 100 people," Nicole Smith said. (2-28-03 KOIN.com)

Neighbours picket outside convicted child molester's home:..Several children and moms picketed outside Wright's new residence in an effort to inform the neighbourhood that they were living near a convicted sex offender. Witnesses at the scene last Wednesday afternoon said the picketers spoke to nearly 200 passers-by.(9-20-01 Richmond News)

Rain dampens protest of sex offender near school:..They said they weren't on a witch hunt. The people that came to Finn Road Saturday to protest a convicted sex offender living near the town schools said they are angry at where he lives, not at him. Seven protesters stood in the rain on Finn Road wearing ponchos and holding umbrellas. They waved signs that read "Keep our Kids Safe," as they stood about 50 feet from the house where the convicted sex offender lives at the end of the dead-end road.(4-27-03 Norwich Bulletin)

Stockton Residents Protest Sex Offender Group Home:.. Stockton residents are up in arms over a group home for juvenile sex offenders that has moved into a quiet neighborhood. Signs are up in front of almost every neighborhood home in protest, warning children, parents and passersby. The group home -- one of 48 in the cit of Stockton came into the neighborhood, without warning, two months ago. Many neighbors say they feel the home poses a threat to them and their children.(4-16-03 KCRAChannel.com )

-- Police and Prosecutors --

Sexual offender to leave county:.."We'll follow him wherever he goes," Cornett said. "Every time he leaves, we're going to go and let the community know about it." Prosecutor Mike Sinacore said the state took no position on whether Cornett and the protesters had gone too far in following Kinder from hotel to hotel. "We don't encourage it, we don't discourage it, as long as she's not breaking any laws," he said. (5-15-02 St Petersburg Times )

Sex offender wants to get on with life. Protesters march outside house:.. Halifax Regional Police officers in a police van and at least two cruisers watched over the protest, which lasted about 40 minutes. The protesters, most of whom Mr. Aucoin said he didn't know, chanted, "Hey hey! Ho ho! Child molester's got to go," as they walked up and down the sidewalk in front of 88 Gaston Rd.(4-25-03 Halifax Herald Limited)

Parents' protests, new laws keep sex offenders on move:.. But once those whereabouts are known, there's no standard for what happens next. Sid Landau, for one, may be an indication of what to expect in the future. The twice-convicted child molester was forced to move repeatedly following protests from neighbors who did not want him nearby. Landau did finally find a place to live that nobody is complaining about. He's back behind bars after allegedly attacking a television news cameraman who was recording his whereabouts.(5-6-97 CNN Interactive )

--- Megan's Law Disclaimers and Warnings ---
Found on State Internet Registries and
Community Notifications

Warnings are supposed to be "the balance" in Megan's laws, the law's police force that is supposed to prevent Megan's laws from becoming a "System of Public Punishment" as it has become.

Earlier example:“It is illegal to use information obtained through this web site to commit a crime against a registered sex offender or to engage in discrimination or harassment against a registered sex offender. A person is authorized to use this information only to protect him/herself or a child who may be at risk.”

You can view every state's Disclaimers and Warnings by "Clicking Here." I am sure you noticed, if you reviewed the state-by-state listing, that -far too many- states have completely ignored the need for this "Megan's law Police Force" and have no Warnings; callous disregard by public officials, furthering punishment even more there! Hats off to legislatures that remembered to include these in the law! To states that have ignored this principle, the constitutionality of their Meg's law is questionable!

The US Supreme Court in the Connecticut case decided that case based, in part, upon what was found in Disclaimer / Warning statement. True it was also found in the state's law as well.

Given registries, and community notification instruments, contain "Warnings" who monitors (enforces) whether these are being violated (police, prosecutors, the legislature)?

--- Megan's Law Violations ---

A few points about these news articles. Notice that each focuses on a specific sex offender, an individual. One or more persons are stalking these sex offenders. They are pursuing the offenders following them from place to place, each time forcing them to move. In some cases the offender is being physically hurt. Are these acts legal? The police seem to be doing nothing to stop these actions, in spite of the Warnings that appear on their Megan's laws!

Who is it that is doing all this that appears to be against the law???

The Media: Notice that there no articles, and we have found none, that show the media initiating any form of action such as the other articles show, against a specific sex offender.

The media is generally smarter than that, they only report on the registry and those that maintain it. (Example: 5-19-2003 Iowa WHO.TV) They know they cannot as the result of obtaining information from a sex offender registry, initiate a attack, a protest, or initiate direct confrontation with a specific sex offender as all the articles above show others doing. Remember the warning found on registries and other notification instruments: We are sure that the legal personnel behind the media has informed them, if they violate those "Disclaimer/Warnings" it is distinctly likely they will lose in a court action, if one is brought.

Remember, there is a difference between -initiating *and* reporting when someone else initiated-, carefully study all articles by the media. If you find one, study -what precipitated the story and the focus of the story-. Yes, there are articles out there which say, the news XXX reporter verified xx sex offender addresses, but that article is focused on the registry not a specific sex offender (although 1 or 2 registrants who are in compliance may be mentioned) (offenders not in compliance lose privacy rights). Accordingly, the media cannot be accused of misusing registry information, or stalking or harassing a sex offender.

In defense of the media, they do face ethical questions regularly (1996 Article: Megan's Law: "Naming" a New Ethical Dilemma) especially given they know what could happen to sex offenders given the societal climate about them today.

However, this is what keyed us, the media's voice is just as loud by what it does not do while everyone else jumps on the bandwagon!

OK, what about all the other folks in the above articles, guess what, they are violating laws (plural). First we will start with this, where did they get the information to initiate their action (i.e., protest, signs, posters, etc.,), they got it from a government notification instrument about a specific sex offender. i.e., the Internet, a poster posted by the sheriff, a community notification or meeting about a specific sex offender. To them Megan's Law WARNINGS mean nothing, verified by their actions!

What laws are they violating???This writer does not know a single state that doesn't have anti-stalking laws, anti-harassment laws, or something similar like permissible and illegal picketing laws. Residential picketing of a private residence for the purpose of harassment of the occupants, is not constitutionally protected! Further, Megan's laws contain Warnings which in essence say, "do not use the information found in the registry to ...., (A warning about violating rights of registrants) need we cite more???

The Prosecutor in above article, "We don't encourage it, we don't discourage it, as long as she's not breaking any laws." All I can say to that is, "Did he graduate from LAW SCHOOL?" Prosecutors' certainly have an affinity to misconstrue facts to obtain a conviction, why not here simply recognize the facts and enforce the law as it exists?

"Police officers in a police van and at least two cruisers watched over the protest,..." at least in Canada they send a cruiser to watch over the protest. Here in our country the police either, participate in the action (see earlier articles) or never show up! Funny, they show up and arrest sex offender if they look the wrong way, or "attack a news reporter" when the news reporter is violating the law by stalking the sex offender. The meaning and interpretation of "the law" changes based upon whether one is or isn't a sex offender.

Legislators, at very least those mentioned in articles above, have held in state legislatures, and set forth in findings that said or implied, that registry laws were not enacted to further punish sex offenders, but instead, to protect the public -which courts have held as well-. Actions speak much louder than words! Did these legislators feel their state's registry law was insufficient?

Judges, well its true that a judge has discretion to conform a sentence to fit the crime and the offender, so in that light they are fine. Yes, they also have a duty to protect the public. However, that duty and discretion ends when their acts run contrary to promoting public peace as these signs did!

--- Unequal Treatment and Unequal Protection ---
of Sex Offenders & their Families & Friends
Under Megan's Laws

We need to digress for a minute, many folks will view the articles above as "sex offender discrimination." Possibly in error!

Yes, that could be error, the term "discrimination in a constitutional sense" usually embodies a legal basis for the alleged "discrimination," and as we know today, being a sex offender is not one of them, and race, religion, sex (gender), sexual orientation (in some states), marital status, etc., are.

Yet, the law uses the word "discrimination" with respect to sex offenders? Discrimination has both, a technical meaning in a constitutional sense (requiring a certain basis), and a more generalized meaning a sense of PREJUDICE (bias, intolerance, narrow-mindedness, unfairness, inequity, favouritism, one-sidedness) these taking it away from the constitutional sense, and away from government. The very presence of Megans' laws, being laws governing interactions between people of society, necessitates understanding "discrimination" in the latter sense.

However, what the above news articles do show is, "unequal treatment under the law, AND, unequal protection of the law," and in some respects under the color of law which may form the basis for a civil suit. This too is a constitutional right, applicable to everyone in society, not just sex offenders!

Society feels "it has a right to know where sex offenders live!" i.e., that Megan's Laws gives society that right. Therein is the problem, that broad statement, "society feels," while it is technically true it doesn't explain who in society Megan's Law is to be used for, and this is no small point.

Megan's law is designed to protect an individual or a child. (Use is supposed to be personal, for personal safety!).

Hence the warnings, in essence they say, do not misuse Megan's Law, do not harass or discriminate against the sex offender. Megan's law confers no authority to initiate protests, signs, or anything else against the sex offenders listed.

An analogy is, the very need for a Megan's law is recognition of a societal tragedy, the Warnings are a saying, do not further the tragedy even if there is good purpose in your cause!

When courts have held that, "Megan's law is meant to protect the public and not to punish the sex offender," their intended meaning is twofold, Megan's law is meant to protect yourself and a child, and not meant to be used to further punish the sex offender, which is exactly how the public is using Megan's law.

When criminal justice agencies, i.e. police, prosecutors, and even the legislatures, fail to quell protests and other forms of actions against sex offenders, then these agencies violate the principle of Megan's law.

Further, when they fail to recognize or enforce other provisions of law, i.e. stalking and harassment type laws, to protect the sex offender, or the legislature -enacting provisions to protect sex offenders & families-, these governmental agencies become part of the problem, not the resolution to a peaceful society.

Inaction is action, and in this case causes "further punishment." Megan's law doesn't go far enough to stop punishment by design.

There is no valid argument to assert that, sex offenders in society are not entitled to the same protections of the law as everyone else in society. What is happening to sex offenders in society is not hypothetical, true it is not happening to every single one, but the potential for violence against sex offenders & their families, is designed into the law! The fault is, what is missing from Megan's law!

--- Conclusions ---

This report clearly outlines "The Overall System of Punishment by Design through Inaction" that sex offenders face today. For anyone, including legislatures, to say that "it is not punishment because we didn't intend it to be punishment," and fail to recognize how this dissemination system has evolved into a "Punishment Scheme," is to ignore that we even have a Constitution!

Oh yes, read the paper again, thinking of "Privacy Rights" of those in society who are the family and friends of sex offenders, are their "Privacy Rights" being violated by the same "System of Punishment??"

Recognizing that what is right for one person may not be right for another person, what are sex offenders to do?? If faced with circumstances that deny them a meaningful life, and given that Megan's law has already placed them in the public light, maybe the criminal justice system needs to be remined of its responsibility under Megan's law, as well as legislatures, and if they fail to react (i.e., Harassment which law enforcement knows about) , then court actions may be initiated as a proper course of action. Some are in progress today.