Sunday, February 11, 2007

Data, not emotions, should form basis of child-abuse law

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Republic columnist Laurie Roberts retold recently the tragic story of Haley Gray, who died of heat stroke while her mother slept off her night of drinking ("Bill may save other kids from little Haley's fate," Jan. 31).

In response to this little girl's death, state Sen. Barbara Leff, R-Paradise Valley, has introduced Senate Bill 1158, which would require Child Protective Services to get records from other states as part of their investigation.

While no one can argue with the value of having additional information from other states when child abuse/neglect is suspected, it is unlikely that such legislation would significantly help abused and neglected children in Arizona.

This bill is just another "feel good" measure that will have little impact. CPS already has a policy to contact other states when investigating suspected child abuse/neglect whenever it is appropriate to do so.

If CPS staffers, already saddled with too many suspected abuse cases and too little time, are required to contact each and every state in which a family has lived, in all suspected cases of abuse/neglect, other more important activities will have to be limited.

While the Adam Walsh Child Protection and Safety Act of 2006 requires that the U.S. Department of Health and Human Services establish a national registry, until this registry is established, it is unlikely that our CPS will be able to routinely obtain such information on each and every case of suspected abuse.

For the past eight years, dedicated volunteers of the Arizona Child Protective Services Citizen Review Panel have prepared an annual report based upon their review of the most serious child abuse cases in our state. See the report at http://www.azdhs.gov/phs/owch/crp.htm.

Unfortunately, this report is read by too few of our legislators and thus the recommendations of this panel, which provide the most unbiased, evidence-based recommendations for decreasing these deaths, are not implemented.

In 2006, the Review Panel examined 25 of the most serious CPS cases. In 18 of these cases, parental substance abuse was a significant risk factor. However, the panel noted that some cases were closed even when parents had failed to comply with substance-abuse treatment plans, including drug screening.

As Haley's case so dramatically demonstrates, parents who are abusing alcohol or drugs cannot adequately supervise their children.

It is this failure to recognize the ongoing risks for a child who is living with a substance-abusing parent, I believe, that is far more likely to be the cause of a tragic outcome than a failure to contact other states regarding past episodes of neglect.

As chairwoman of the Citizen Review Panel, I would urge all our legislators and other policy makers to review the findings of the panel and base future legislative proposals on the findings of the panel. By doing so, I believe, it is more likely that such proposals, if enacted, will truly make a difference in our state's efforts to reduce deaths and serious injuries due to abuse and neglect.


Districts see rise in sex assaults

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SAN ANTONIO – A series of alleged sexual assaults and inappropriate treatment of students in recent weeks has rocked three school districts that teach San Antonio children.

Since late December, nine incidents have surfaced, including allegations of teachers having same-sex encounters with high school students and a janitor accused of improperly touching a student. One teacher fatally shot himself after a claim from a 17-year-old male that they had a sexual relationship.

Now, school district officials are considering tightening their background checks. At one school, a buddy system has been put in place so that students aren't going to the bathroom alone.

"It's very disconcerting because all of this seems to have happened all at once," said Laura Calderon, a spokeswoman for the North East Independent School District.

North East ISD officials are dealing with three allegations that surfaced over three weeks. A male janitor, who has since been fired, was accused of touching a student. A week later, a female high school teacher was suspended after a female student claimed they had a sexual relationship. The teacher has since resigned.

Then, two elementary students said a substitute teacher rubbed their shoulders and then put his hands down their chests.

"Let me be as clear as possible. North East ISD does not tolerate any inappropriate relationship or behavior toward a student by any employee," Superintendent Richard Middleton wrote to district employees. "The district will seek termination if this activity is brought to our attention."

Last month in a San Antonio district elementary school, a 6-year-old boy told administrators that a man tried to hurt him in the bathroom.

Some worry the wave of allegations might be leading to false reports.

Last week at a Northside Independent School District elementary school, a teacher reported that she saw a man taking photos of students. That was followed by reports from a fourth-grader who said she saw two men snapping pictures of students. The student later admitted she made up her story and faces suspension.

The false report happened because children are "highly suggestible," said Ann Eisenberg, an associate professor of psychology at the University of Texas at San Antonio.


Republican calls for email and IM monitoring

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ISPs would have to keep records of emails, IM and website visits.

A bill introduced to the US House of Representatives would require ISPs to record all users' surfing activity, IM conversations and email traffic indefinitely.

The bill, dubbed the Safety Act by sponsor Lamar Smith, a republican congressman from Texas, would impose fines and a prison term of one year on ISPs which failed to keep full records.

"A crime is still a crime, whether it occurs on the street or on the internet," said Congressman Smith.

"In this age of increasing digital and technological sophistication, cyber-crimes and cyber-terrorism pose a serious threat to the US. Law enforcement and the private sector must be prepared to deal with these crimes."

The bill includes a separate clause that would force the owners of sexually explicit websites to include warning labels on their web pages, or face jail.

Also included is a 20-year "jail tariff" for anyone ordering child pornography that crosses state borders, with a US $150,000 fine for the ISP that allowed the transaction to take place.


WiFi Turns Internet Into Hideout for Criminals

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Detectives arrived last summer at a high-rise apartment building in Arlington County, warrant in hand, to nab a suspected pedophile who had traded child pornography online. It was to be a routine, mostly effortless arrest.

But when they pounded on the door, detectives found an elderly woman who, they quickly concluded, had nothing to do with the crime. The real problem was her computer's wireless router, a device sending a signal through her 10-story building and allowing savvy neighbors a free path to the Internet from the privacy of their homes.

Perhaps one of those neighbors, authorities said, was stealthily uploading photographs of nude children. Doing so essentially rendered him or her untraceable.

With nearly 46,000 public access points across the country -- many of them free -- hundreds of thousands of computer users are logging on every day to wireless networks at cafes, hotels, airports and even while sitting on park benches. And although the majority of those people are simply checking their e-mail and surfing the Web, authorities said an increasing number of criminals are taking advantage of the anonymity offered by the wireless signals to commit a raft of serious crimes -- from identity theft to the sexual solicitation of children.

"We're not sure yet how to combat that," said Kevin R. West, a federal agent who oversees the computer crimes unit in North Carolina's State Bureau of Investigation. "Free wireless spots are everywhere, and it makes it easy for people . . . to sit there and do their nefarious acts. The fear is that if we talk about it, people will learn about it and say, 'I can go to a parking lot, and no one will catch me.' But we need to talk about it so that we can figure out how to solve it."

The way it works is simple: Anyone who has a wireless card installed in his or her computer -- and most new computers are equipped with one -- can access the Internet from any of the public WiFi "hotspots," as they're known. In an age of portability and instant gratification, getting online has never been easier -- for law-abiding folks and those with bad intentions.

And in especially dense areas such as the Washington region, some neighborhoods might offer users a dozen or more open wireless signals from which to choose.

"Unsecured networks are a treasure trove for neighbors," said John Sheehan, program manager of the CyberTipline at the National Center for Missing and Exploited Children. "Those looking to access illegal content obviously feel they have anonymity" and can get away with it.

They most often do, authorities said.

"It's frustrating for officers," said Todd Shipley, director of training services at the National Consortium for Justice Information and Statistics. "If a suspect is going from coffee shop to coffee shop and using free signals to commit crimes, the police probably aren't going to catch him. That's the reality."

Open wireless signals are akin to leaving your front door wide open all day -- and returning home to find that someone has stolen your belongings and left a mess that needs cleaning.

One way to combat it is for people to secure their wireless networks by making them password-protected. But, authorities said, businesses and cities that offer free connections need some way to track the users, such as filtering measures that could scan to see who is accessing the network.

Locally, Alexandria recently announced plans to expand its wireless network. The Internet service provider EarthLink will build a citywide network for a 16-square-mile area, with free wireless connections available in more than two dozen public locations. The provider also has worked on municipal WiFi in cities including Philadelphia and New Orleans. Alexandria officials said EarthLink will decide whether to implement security measures on the network, which will be accessible to anyone passing through the city.

In one recent case, West said, a truck driver used free wireless signals at motels across the country to post and view pornographic images of children at a Web site. By pure luck, the man was caught, West said. When the suspect got online from his home computer, authorities were able to trace his computer's Internet Protocol address, or the unique set of numbers assigned to every computer that uses the Internet. That number, which serves as a virtual street address, often leads authorities to the offender's physical residence.

"Otherwise he would've slipped through the cracks," West said. "We wouldn't have been able to identify him."

These days, the Internet is as indispensable to an officer's arsenal as his gun and handcuffs. Indeed, a growing number of officers are being assigned to patrol cyberspace.

Across the nation, 46 multi-jurisdictional Internet Crimes Against Children task forces have been created to carry out online sting operations aimed at ensnaring sex offenders because a man tapping away on a computer in Rockville might very well be soliciting a child in California. Every week, federal and local authorities cast their nets.

And although most sex crimes against underage boys and girls involve victims and suspects who know each other, an increasing number involve online interactions between strangers. Online solicitations -- in which pedophiles cultivate relationships with children and then arrange to meet them in public places -- are becoming more common, federal authorities said.

And even in those cases in which the suspect is brought to police attention by a neighbor or friend or relative, computers are often rich sources of evidence, West said.

"Technology just makes the park no longer the only place where the pervert goes," West said.

The Northern Virginia-D.C. task force has officers from 23 local, state and federal agencies. It was established in November 2004 through a grant from the Office of Juvenile Justice and Delinquency Prevention at the Justice Department. Since its creation, dozens of cases have been opened and more than three dozen arrests have been made.

Those assigned to the task forces patrol the virtual streets for pedophiles and others who want to commit crimes against children. Using software and other tracking devices, the officers trace a suspect's IP address. But as technology improves, so too do the tactics of criminals. Closing cases is more difficult if the IP address originated from a wireless signal because it often leads back to the owner of the network instead of the criminal.

The problem is going to get worse, authorities said. Every day, more homes, businesses and entire jurisdictions are outfitted with wireless networks, creating an almost seamless patchwork of available Internet connections to anyone with a laptop and the desire to get online.

"This is part of the future . . . and we're working to catch up and educate the public," said Capt. Tommy Turner of the Virginia State Police.


Georgia Fairness Legislative Update (02/11/2007)

Fairness for Prisoners’ Families

Legislative Update

February 10, 2007, Legislative Days 15-17

In this message:

* Spotlight On...
* This Week in Criminal Justice at the Georgia General Assembly
* New criminal justice bills
* Bills of Interest

SPOTLIGHT ON...

House Bill 308, the Eyewitness Identification Accuracy Enhancement Act was introduced this week by Rep. Stephanie Stuckey Benfield (D-Dekalb) HB 308 will reform Georgia's Eyewitness Identification Procedures: Willie O. "Pete" Williams' recent exoneration after more than 21 years in prison on a wrongful rape conviction has raised the issue of eyewitness error for the second year. All six of the men whose convictions have been thrown out by DNA evidence in Georgia were prosecuted based on eyewitness testimony.

Please take a moment to write to Rep. Benfield and thank her for her leadership on this important legislation. Contact her at:

Representative Stephanie Stuckey Benfield
Suite 512 Coverdell Legislative Office Building
Atlanta, GA 30334
stuckey@mindspring.com

This Week in Criminal Justice at the Georgia General Assembly

The House of Representatives passes the following bill this week:

HB 51: Sheriffs' duties; security plans; change frequency

The Senate passed:

SB 34: Penal Institutions; possession of photograph of victims by certain persons confined; prohibit. SB 34 was heard in Senate Judiciary passed the committee unanimously.
SB 54: Offenses; incest; provide for gender neutrality. SB 54 was heard in Senate Judiciary passed the committee unanimously.

New Criminal Justice Bills:

We will update you weekly about the progress of criminal justice legislation or you can click on the link provided below to learn more about the bill’s status, sponsor, committee(s) , and votes. To access any bill, click on the bill number below or go to the following address and type in the bill number in the top right corner: http://www.legis.state.ga.us/

House Bills

HB 308 Eyewitness Identification Accuracy Enhancement Act; enact
HB 313 Georgia Correctional Industries Administration; certain inmate work programs; clarify
HB 314 Persons convicted of certain sex offenses; probation; DNA analysis; provide
HB 326 Sheriffs; candidates; certified peace officers; require
HB 333 Weapons; crime or delinquent act; provisions
HB 334 Associate juvenile court judges; hearing in certain cases; change provisions
HB 336 Driving under the influence; mandatory sentences; increase

Senate Bills

SB 117 Bail; sexual offenses; certain additional conditions
SB 119 Criminal Procedure; victim/members of immediate family with rights

Bills of interest:

Corrections Bills

HB 37: Prisoners; await trial in mental health facility; provide
SB 34: Penal Institutions; possession of photograph of victims by certain persons confined; prohibit

Sex Offense Bills

HB 226 Obscenity crimes; distribution of obscene materials; insert new provisions
SB 1: Sexual Offenders; unlawful to photograph minors; provide penalties
SB 20: Sexual Offenses; carnal knowledge with disabled person incapable of granting consent; unlawful; provide penalties
SB 54: Offenses; incest; provide for gender neutrality

Juvenile Justice Bills

HB 50: The Interstate Compact for Juveniles; enact; repeal previous compact
HB 52: Juvenile proceedings; arrest and detention of accused children; change provisions
HB 270: Juvenile proceedings; appointment of guardian ad litem; change provisions

Criminal Procedure, Sentencing, and Death Penalty Bills

HB 126: Criminal procedure; verdict in felony case; jurors; provisions
HB 185: Death penalty; jury findings; aggravating circumstance; change provisions
HB 197: Imprisonment sentence reviews; more than 12 years; three-judge panel; repeal
HB 276: Biometric Information Protection Act; enact
HB 280: Controlled substances; sale of marijuana flavored products to minors; ban
HB 281: Controlled substances; child care learning centers; create drug-free zone
SB 21: Crimes; person convicted of murder against peace officer, corrections employee, or firefighter; official duties; change punishment
SB 23: Criminal Sentencing Procedure; probation/suspensio n; court may inquire/consider the legality of prisoner's presence in United States
SB 37: Criminal Procedures; allow a change of sentence under certain circumstances
SB 48: Penal Institutions; transmittal information on convicted persons; provide notice to the attorney of record for the convicted persons
SB 62: Georgia Crime Information Center; provide certain conditions for requesting criminal history records
SB 79: Criminal Attempt; increase maximum punishment for convictions; felonies punishable by death/life imprisonment
SB 91: Traffic Offenses; fleeing/attempting to elude a pursuing police vehicle; punishment; change provisions
SB 97: Criminal Trial Proceedings; require parties to raise specific objections to jury charges prior to jury retiring to deliberate
SB 98: Crimes/Offenses; Georgia Bureau of Investigation investigate certain offenses against minors, including subpoena power
SB 100: Crime; knowingly manufacturing, selling, or distributing false identification documents; increase certain penalties

Probation and Parole System Bills

HB 64: Division of Probation/Parole Community Based Supervision; create
HB 65: Department of Probation/Parole Community Based Supervision; create

County Bills

SB 22: Detentions; counties housing state inmates; increase the minimum reimbursement rate

Police Bills

HB 51: Sheriffs' duties; security plans; change frequency
HB 74: Local governments; peace officers; authorize power of arrest; provisions
HB 75: Serious traffic offenses; felony fleeing; attempt to elude police; provisions
HB 149: Law enforcement officers; stop motorists; race or ethnicity; prohibit

If you have any questions or concerns, please don’t hesitate to contact me.

With hope and solidarity,

Sara J. Totonchi
Public Policy Director
Southern Center for Human Rights
83 Poplar Street, N.W.
Atlanta, Georgia 30303
404/688-1202 voice
404/688-9440 fax
stotonchi@schr.org


Legislators try to ease laws for sex crimes by youths

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They have raging hormones, backward social skills and, at best, poor judgment. Most have confessed their sexual crimes to family members, clergy or school counselors. Many of the teenagers — who are often younger than 15 — are prosecuted as adults.

They plead guilty to lesser charges to avoid a trial and the possibility of a lifetime in prison, and so they become registered sex offenders for the rest of their lives.

Most of these teens have committed a sexual crime against a family member. A few had sex with a younger girlfriend. Some were connected to child pornography.

Now, a group of conservative Republican lawmakers, responding to years of tearful appeals from the teens’ families, wants to ease the laws governing young sex offenders and give judges back some of the power they lost a decade ago to decide the fate of the teens.

“These boys are having the book thrown at them,” said Sen. Karen Johnson, R-Mesa.

“These are immature children, and they made some pretty dumb decisions. There’s no way I’m saying they shouldn’t have consequences. But they need to be appropriate consequences.”

The legislators acknowledge that appearing to be soft on sex offenders will be a hard sell, and may not win points among voters. But they say teens, primarily boys, who make one mistake should not pay for it the rest of their lives.

Three of five bills on the issue are scheduled for legislative hearings this week, including measures to allow judges to decide whether firsttime, nonviolent sex offenses should be tried in adult court and lower the age of consent to 13 from 15 years old.

In addition to dozens of families, supporters include adult and juvenile probation officers, judges, treatment providers and police. But not the Maricopa County Attorney’s Office.

Last month, lobbyist Mark Faull told a special legislative committee, of which Johnson was co-chairwoman, that the panel’s efforts were misguided and lacked input from victims. During earlier hearings, Faull defended the county attorney’s prosecution of teen sex offenders and said most of the criticism appeared to focus on probation.

Under the terms of their probation, the teens likely cannot live at home or even visit there because of the presence of younger siblings. Some of them are living in homeless shelters or transitional housing like the East Valley Men’s Center.

They cannot be anywhere children are, including movie theaters, parks, shopping malls, fast-food restaurants and their old schools.

They must attend group therapy, which can include grown men convicted of rape and other violent sex offenses, and discuss their crimes and fantasies as part of their treatment.

They must continue their education or go to work, keep regular appointments with their probation officer, take periodic polygraphs and DNA tests.

Rep. Linda Gray, R-Glendale, was skeptical about the need for reform until she heard the stories of some of the young offenders. Now, she’s sponsoring a bill to require annual probation reviews for sex offenders under 25 years old.

“How is this going to help the young person adjust and get back into society if they can’t have contact with family and they’re put in a homeless shelter?” Gray said.

“I’m not sure what we’ve gained if not pushing them further into behavior that they normally would not continue in,” she said. “We need to bring them back into normal behavior, instead of sticking them out there with the wolves.”

In addition to anecdotal evidence, proponents cite research showing that juvenile sex offenders generally outgrow their behavior and are less likely to reoffend than those who commit sex crimes as adults.

They also note a variety of neurological studies showing that the brain’s frontal lobe, which among other things controls impulse and judgment, is still developing throughout adolescence.

And they note that more teens — and younger teens — are becoming sexually active. About 28 percent of Arizona ninth-graders and twothirds of high school seniors say they’ve had sex, according to the Centers for Disease Control and Prevention’s 2006 Youth Risk Behavior Survey.

“We are creating our own group of homeless, sex-offending youth,” said Chris Phillis, juvenile division chief for the county public defender’s office.

“I think we’re creating a crime that really doesn’t exist. We’ve labeled a 15-year-old for a relationship. And we’ve basically taken his future.”

In testimony last fall before the Joint Legislative Committee on Youthful Sex Offenders, which ultimately recommended the bills, sex crimes prosecutor Rachel Mitchell said the county attorney’s office doesn’t go after youngsters who have consensual sex. The teens they prosecute, she said, are predatory and deviant.

But some East Valley family members say that’s not so, citing cases of young men who are registered sex offenders on lifetime probation for having sex with underage girlfriends who did not want them arrested.

Voters in 1996 allowed juveniles over 14 years old to be prosecuted as adults for various violent crimes. The next year the Legislature broadened the law to include additional crimes, and give prosecutors the power to transfer teens 14 and older to the adult system.

Since then, thousands of teens have been “direct filed” to the adult court system without a juvenile court hearing. Last year, 140 Maricopa County teens were prosecuted as adults, including about one-third who had no juvenile record.

A juvenile who’s been prosecuted in adult court can still receive treatment and services with other teens. But that stops on his 18th birthday, when he’s thrown into adultonly programs.

“You turn 18 and it’s like your whole world changes,” said Therese Wagner, a division director overseeing sex offenders for the county’s adult probation department. “There’s such a range of offenders within that population.”

The department is working on separating first-time, nonviolent offenders, under 25, from older ones in treatment programs. One of Johnson’s bills would require it.

Defense attorney Dan Raynak said he’s seeing a growing number of young sex offender cases cross his desk, kids as young as 14 with no prior records and just one alleged misstep. One boy has been in detention since May.

“It’s good for business,” Raynak said, “but I don’t think it’s good for society.”

Public hearing
What: Senate Judiciary Committee meeting
When: 1:30 p.m. Monday
Where: Hearing Room 1, State Senate, 1700 W. Washington St., Phoenix
Information: Call Sen. Karen Johnson, R-Mesa, (602) 926-3160, Sen. Linda Gray, R-Glendale, (602) 926-3376, or Rep. Rick Murphy, RGlendale, (602) 926-3255.

Youthful sex offender bills

SB1425: Lowers the age of consent to 13, as a defense for certain sex offenses if the defendant is less than two years older, and 15 if the defendant is no more than three years older.

SB1426: Defines a “youthful sex offender,” and exempts them from mandatory sentencing, registration and community notification.

SB1628: Requires juvenile sex offenders who are in treatment to be with similar offenders, including age and maturity level.

HB2777: Requires annual probation review for all juvenile sex offenders prosecuted as adults.

HB2778: Allows juvenile court judges to sentence teens to probation until they’re 25 years old, with the option of transferring the case to adult court if the youth violates probation after he turns 18.


Critics: Sex predator act flawed

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Last year, Gov. John Lynch lobbied vigorously for the passage of the Sexual Predators Act, urging lawmakers repeatedly to crack down on the "people who prey on children."

The bill, the governor's top priority in a year without a budget and with an election, earned the strong support of House and Senate leaders from both parties. Written by the attorney general with input from prosecutors and police chiefs, the legislation carried the stamp of the law-enforcement community and passed by a wide margin.

Now that the law has taken effect, though, even those who championed it acknowledge that it needs adjustment. Meanwhile, defense attorneys are questioning the constitutionality of some provisions in the law, which they say was unnecessary and capitalized on public fear about sex offenders. And at least one veteran lawmaker who worked on the bill last year believes it was rushed to passage without full review.

"I've never seen a law work that was put through so fast," said Rep. Laura Pantelakos, a Democrat who serves as vice chairwoman of the House Criminal Justice and Public Safety Committee, which reviewed the bill last year. "I don't feel it can be said that we did it right."

Pantelakos, a 15th-term lawmaker from Portsmouth, said she and other committee colleagues wanted to hold the bill for a year of study and development but were overruled by the governor, legislative leaders and others who wanted to pass it in 2006. "They were hell-bent to get it out," she said.

The legislation's two sponsors disagree. "It's probably going to have a few tweaks here and there, but overall I think the bill is in there as what I had hoped for," said Rep. Peter Batula, a Merrimack Republican and the main sponsor.

Senate Majority Leader Joe Foster, a Nashua Democrat and the bill's cosponsor, said he thinks the Sexual Predators Act is experiencing the minor "growing pains" associated with any comprehensive new law.

"It's a piece of legislation dealing with a lot of specific matters, and it doesn't surprise me that we may have to look (again) at certain things to get it right," he said. Moreover, Foster said, the act as written will protect children. "It's a good piece of legislation that I suspect other states will look at and model theirs on."

Multiple provisions

The Sexual Predators Act contains more than two dozen provisions that supporters hope will act in concert to make children safer. Lynch - who said he started the process in mid-2005 by asking the attorney general to work with prosecutors, law enforcement and victims' advocates to study New Hampshire's laws and compare them with those elsewhere - has said repeatedly that the act gives the state "some of the toughest and most comprehensive child protection laws in the nation."

The attorney general's office modeled the law on statutes adopted elsewhere, including a Florida package known as Jessica's Law, named for the young girl whose kidnapping, rape and murder prompted lawmakers there to adopt 25-year minimum sentences and lifetime electronic monitoring of sex offenders.

Critics of New Hampshire's law are careful to note that they abhor sex crimes and assault on children. At the same time, they see it as legislation that addresses problems - the predator who lurks near schoolyards or on the internet; the repeat offender - that exist as much in perception as in reality.

Critics also saw it as an unusual move for New Hampshire legislators - where limited-government proponents talk often about not passing legislation for legislation's sake - to adopt a bill that germinated elsewhere. The state should not have looked far south for sex-offender legislation, Pantelakos said.

"We should never follow a Florida law," she said. "Sometimes I think their brains are burnt out down there."

Batula disagrees. He perceived a growing problem in New Hampshire "simply by what you're reading in the paper, that all these kids were victims. And then you were also reading that some of these penalties by the judicial system, some of them were just a slap on the wrist," he said. "We wanted to make sure that was not the case in New Hampshire."

Despite the length of the bill, nearly all of the debate in the Legislature centered on one component: mandatory minimum sentences. The governor, the attorney general and others wanted to scrap the maximum 10- to 20-year sentences for first-offense sexual assault on children and first-offense physical abuse to children that leaves permanent damage; they wanted to raise the mandatory minimum sentence to at least 25 years. They also wanted to replace the 20- to 40-year maximums for second offenses with life without parole.

The House - where Rep. David Welch, then the chairman of the criminal justice committee, warned against legislating by "emotion over logic" - removed the minimum sentences, but Lynch and others lobbied to restore them in the Senate. The two bodies ultimately compromised with a provision to create minimum mandatory sentences but also allow a judge some discretion to deviate, provided the judge provides a detailed written explanation.

A shorter debate occurred over a provision to keep sex offenders from living near schools and parks, which lawmakers deleted - some said it would force sex offenders to move from urban to rural areas, and others said it would not improve public safety. Otherwise, most aspects of the law received little or no debate in the Legislature, where few lawmakers were fully versed in the intricacies.

Among other aspects, the law increased the frequency with which released sex offenders must register their whereabouts and toughened the penalties for failing to do so; it gave law enforcement and parents more information about sex offenders living in their communities, in part by expanding the list of sex crimes that lead to inclusion on the public database of offenders; and it created a "civil commitment" process for keeping some violent sex offenders off the streets even after they've finished their prison sentences.

Civil commitments

Because the law took effect Jan. 1, lawmakers and observers say it's too early to tell how most aspects of the law are working. But the last component - civil commitments - has generated some early complications and yielded a test that could prompt judicial review, adjustments by lawmakers, or both. It has also prompted a debate between commissioners of two of the largest state departments, and it has given critics of the overall law an opportunity to question whether the entire package was reviewed sufficiently before passage.

The Sexual Predators Act added a new form of involuntary confinement to cover "a small but extremely dangerous number of sexually violent predators," in the language of the law. Those predators do not have mental defects that qualify under previous commitment laws but instead have "antisocial personality features" that render them unfit to return to society after prison because they are likely to commit additional violent sex offenses. The laws says it could be the result of a "mental abnormality or personality disorder."

Enter William Decato, 50, as a test case. Decato went to prison in 1999 after pleading guilty to raping one exotic dancer and kidnapping and attempting to rape a second dancer at his home. He served all eight years of his sentence, partly because he refused to participate in the prison's sex offender treatment program, according to court records.

Just before Decato's scheduled release last month, Merrimack County Attorney Dan St. Hilaire - one of several county attorneys who participated in the drafting of the new law - petitioned to keep Decato off the streets through the civil-commitment statute.

The law allows prosecutors to seek additional confinement in five-year increments for the most violent sex offenders, provided they can prove the offenders suffer from personality disorders that make it difficult for them to control their violent sexual behavior. The law established a three-person "multidisciplinary team," including two trained psychiatric or psychological consultants, through the Department of Health and Human Services, to evaluate the convicts.

The convicts are entitled to judge or jury trials in superior court to determine their fate. Nearly all superior court proceedings are open to the public. However, traditional civil commitment cases are heard in probate court, where proceedings are closed. In the Decato case, both the prosecutor and the defense asked for most of the court file and the proceedings - dealing with Decato's mental state - to be sealed for Decato's privacy.

The Monitor and the New Hampshire Union Leader petitioned for full access on the grounds that court proceedings are presumed open in New Hampshire and that the public has a right to know how the new law is working. Mangones opted for what he called a balance; he sealed most of the records and held nearly all of the court hearings in the matter behind closed doors.

Last week, Mangones found probable cause that Decato remains a violent sexual predator and ordered him held in prison until an April trial.

Lawmakers did not address the public-access question in establishing the civil commitments last year. Also, they created the commitment process with the intention of treating retained convicts through the Department of Health and Human Services - though no facility exists to house them at New Hampshire Hospital and offenders would be forced to remain after their sentences at the state prison, albeit in a segregated unit.

David Hirsch, Decato's public defender, said that's a significant difference between New Hampshire's new civil commitment law and laws elsewhere to confine and treat sex offenders beyond their sentences, a concept that has passed muster with the U.S. Supreme Court. About one-third of states now have such statutes.

Further prison confinement amounts to a second sentence and violates the constitutional prohibition on "double jeopardy," said Hirsch, who has defended convicts in civil commitment cases elsewhere and was recently hired to lead a new office of the New Hampshire Public Defender to handle such defenses here.

Hirsch said the Legislature was also too vague in creating its "antisocial personality features" standard for determining which sex offenders can be civilly committed. The Supreme Court established a test to distinguish between ordinary inmates with antisocial traits and those who are dangerous sex offenders likely to recommit, Hirsch said.

"Virtually all criminals have antisocial personality features. That's what makes them criminals!" Hirsch wrote, in an e-mail interview. "Our law doesn't pass the test."

If the prosecutor succeeds in securing additional confinement for Decato, Hirsch will almost certainly contest the law, he said.

Claire Ebel, executive director of the New Hampshire Civil Liberties Union, shares Hirsch's disdain for the civil commitment, especially because it relies on a "clear and convincing" standard of proof instead of the "beyond a reasonable doubt" standard.

"Predicting likely future behavior is at best an educated guess. Deprivation of liberty based on that projection ought to scare the hell out of everyone," she said. But unlike Hirsch, Ebel believes the proceedings should be open. "People need to know why someone is being deprived of his or her liberty based on an assumption that some professional makes," she said.

A short bill

Foster, one of the co-sponsors, submitted a short bill this session to clean up some of the language in the civil commitment statutes. The bill clarifies that the Department of Health and Human Services is supposed to adopt rules for the psychological analysis by the multidisciplinary team, while the Department of Corrections is supposed to adopt rules to provide for the housing and basic treatment of convicts who are civilly committed.

Foster considered the bill to be merely "a housekeeping measure." But Health and Human Services Commissioner John Stephen and Corrections Commissioner William Wrenn disagreed over the rule's authority. And each used a committee hearing on the bill last week to raise a series of concerns about the law.

Stephen said he has two issues with the civil commitments. First, he wants lawmakers to clarify the law to provide public access to the civil commitment proceedings. He also wants them to clarify whether they intend to define "mental abnormality or personality disorder" themselves or intend to leave it up to the multidisciplinary evaluation teams.

Lynch and the Executive Council recently approved an authorization of $100,000 to hire psychiatrists and psychologists for the multidisciplinary teams, at a rate of $200 an hour. That's a footnote in the costs associated with the Sexual Predator Act. The myriad expenses - to prosecute and defend the civil commitment cases, to treat and house those committed, to increase the monitoring of sex offenders in the community, among other costs - are likely to run in the millions.

Stephen and Wrenn agree that lawmakers should approve a $24 million proposal for the capital budget to build a facility at the New Hampshire Hospital to treat and house people who are civilly committed, to remove them from the prison.

If that happened, the Department of Corrections would be free of the responsibility to house - and write rules associated with the housing of - civilly committed individuals. But assigning rulemaking authority to corrections even for the time being should be seriously reviewed, said Wrenn, who believes that's more than a housekeeping measure. Wrenn, who thinks it would be a mistake to give his department civil-commitment authority, said the rulemaking question gets at the essence of the commitment law.

"We have to determine, first of all, if in fact the intent of this law is for further treatment of the sexual offenders, or is it incarceration?" he said.

New viewpoint

Wrenn's perspective has changed on the law since his days as Hampton police chief, when he participated in the drafting of the legislation through his leadership role with the state Association of Chiefs of Police. A little over a year ago, Lynch named Wrenn corrections commissioner.

Wrenn said he thinks lawmakers should give more attention to what they expect to accomplish by civilly committing those who have served prison time. Providing for a transitional period at the end of the five-year commitment term - such as halfway housing - would signify that it's intended to be treatment, not a perpetually renewable incarceration, he said.

Overall, though, the Sexual Predators Act is a good law, Wrenn said. "We just need to work with it, and we need to grow with it, and we need to adjust and modify it where we find in a practical sense that it may not be working quite the way we had intended it," he said.

Welch, who was Republican chairman of the House criminal justice committee last session, said lawmakers on the committee - which was charged with reviewing the legislation and making a recommendation to the full House - didn't spend much time debating the civil commitments.

Sensing the inevitability of passage, lawmakers who wanted to question an aspect of the bill picked a portion that would affect more cases: mandatory minimums.

"I think what we accomplished last year was to make the bill more reasonable," said Welch, of his committee's work, adding "I think we'll likely revisit this bill several times."

Lynch, a second-term Democrat, said last week that he understood some aspects of the bill may need to be reviewed or clarified. But he said the same underlying goal would continue to drive any work related to the act: "The protection of our children, the safety of our children, drove the discussion with regard to every provision of the Sexual Predators Act, and I think it will continue to drive the discussion," he said.

But Pantelakos isn't sure the law will accomplish its goal as written. "I don't think it's going to make anybody any safer," she said.

Defense attorneys share that view. Michael Iacopino, president of the New Hampshire Association of Criminal Defense Lawyers, said the Sexual Predators Act "makes for good politics, but it makes for bad policy," he said, adding that it relied on "popular myths about sex offenders" preying on random children.

Iacopino and Hirsch both said the cost of trying or housing the expected handful of civil commitment cases a year would be better spent expanding treatment and transition programs for sex offenders who committed less severe crimes and will be re-entering society from prison. The same goes for the money being spent to monitor those sex offenders on the outside, they said.

Each side in the debate cites statistics to make its case. Recent studies by the federal Department of Justice's Bureau of Justice Statistics found that 93 percent of children who were victims of sexual assault were victimized by family members or people they knew. Another federal study found that sex offenders had lower recidivism rates than other criminals, and that three years after their release from prison, only 3.3 percent had been arrested for another sex crime against a child.

On the other hand, a long-term Canadian study, which tracked offenders for 25 years, found that nearly 74 percent of those who sexually abused children outside their family were reconvicted for a second offense.

Ebel, the executive director of the NHCLU, said it was inevitable that a bill of this nature would have passed without debate about each component.

"It would have taken a politician of almost unimaginable courage. I mean, who speaks well of sexual predators?" she said. But there's a chance now for lawmakers to monitor it in practice: "We have an opportunity to create a more civil discourse, an opportunity to talk about these things and to right some of the wrongs that occurred last year," she said.

Though Welch didn't succeed in wiping out the mandatory minimums, he said the legislation is important and necessary.

"We tried to craft the bill as carefully as we could. Nothing is perfect," he said. "The proof of the pudding is in the eating it - and I think the meal won't be over until at least the end of the year."


WY - Raft of sex offender bills aim to keep criminals out of Wyoming

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CHEYENNE -- Bob Brackett says part of his job is fielding some disturbing phone calls.

Brackett, program manager for the Wyoming sex offender registry, has had to tell registered sex offenders from other states that life will be easier for them if they move to Wyoming.

"A Florida registrant contacted this office to discuss the Wyoming Sex Offender Registration Act," Brackett said. "He subsequently moved to Wyoming. A short time later he called our office to ask a question, indicated that it was much easier to live here, and that he was going to call a buddy of his, another registrant in Florida, to get him to move here."

There are roughly 1,200 active sex offender files in Wyoming. That number itself is not shocking, but law enforcement officials and legislators are concerned about something else the numbers say.

According to Brackett roughly 56 percent of the state's registered sex offenders were not convicted in Wyoming. And it's a growing trend: Brackett says 62 percent of the last 100 registered sex offenders did not actually commit their crimes in the state. They chose to move to Wyoming post-conviction.

"We don't want to become the playground for sex offenders," Attorney General Pat Crank said. "But there must be something that sex offenders are seeing (in our policies), otherwise they wouldn't be moving here in the kind of numbers that we seem to be seeing."

And so Wyoming lawmakers are pushing at least six different bills this session that aim to make Wyoming a less-welcoming place for convicted sex offenders:

-- Senate File 36 would punish people who harbor unregistered sex offenders;

-- Senate File 101 would create a pilot project in Natrona County requiring that those convicted of sex crimes against minors wear GPS monitoring devices;

-- House Bill 19 would create stiffer penalties for incest, while Senate File 104 would rewrite the state's statutes for sex offenses against minors;

-- House Bill 157 would institute two-strikes-and-you're-out sentencing that could result in life imprisonment for those convicted of a second sex offense against minors;

-- House Bill 120 would require all sex offenders, regardless of their assessed risk of re-offense, to be listed on an internet database.

The bills, on the whole, are quite popular with Wyoming legislators. Few legislators vote against them.

Rep. Jane Warren, D-Laramie, is one who has. She opposed the measure that would require all sex offenders to be listed in an online database.

"I don't think all sex offenders are the same," Warren said. "The media is pushing, 'You gotta do something or else you're pro-sex-offender,' ... but we need to be cautious and not cast bills based on emotional reactivity."

Warren acknowledges that many of the sex offenders seen on television have committed heinous crimes, but says "there is a whole gamut of people who have problems and have made bad choices. I think we need to deal with each person individually, find out what went wrong."

Warren says she's familiar with the statistics about sex offenders moving to Wyoming. But she's not sure they are being accurately interpreted: "Do we really know that it's because of the way our laws are, that is the reason people are moving into the state? Do we really know that? Or is it because we've had a lot of people moving into the state because of jobs, because we've got a transitory work force?"

Brackett believes it's because of the state's policies.

"Some of our requirements are lower than other states," Brackett said. "For example, there are certain crimes in other states that individuals must register for, that they don't have to register for here."

Brackett says the state is attractive to some sex offenders from California in particular because California requires registration for offenders convicted of indecent exposure, but Wyoming doesn't. He also says Wyoming does not require people convicted of sexual battery to register themselves, while many other states do.

Crank said as other states beef up their sex offender policies, offenders hunt for new places to live.

"They look around for states that do not have the strongest laws, because if you can go someplace and you don't have to be a registered sex offender, you don't have to check in with authorities, obviously from their perspective that's a better situation," Crank said.

The result is a sort of national race in which no state wants to be seen as a destination for convicted sex offenders. States from Virginia and Vermont to New Mexico and Washington state have moved to strengthen sex offender laws recently.

"I think it's a hot topic because of some of the more spectacular cases we've seen throughout the country that get a lot of press," Sen. Bruce Burns, R-Sheridan, said.

High-profile cases like that of Jessica Lunsford's, the 9-year-old Homosassa, Fla., girl who was kidnapped, raped and buried alive, have grabbed the public's attention. John Evander Couey, a convicted sex offender, is scheduled for trial this week on charges of murder, sexual battery on a child, kidnapping and burglary.

And then there's the Adam Walsh Act, passed by Congress last summer which would create the first national online listing of sex offenders, searchable by ZIP code. Crank said the state could lose some $60,000 a year in federal funding if it fails to comply with the act's requirements.

"We're strengthening every aspect of the reporting and that's gonna discourage them from coming," House Judiciary Committee Chairman Rep. Ed Buchanan, R-Torrington, said. "We're gonna make it so there's no place for them to hide."