Friday, May 31, 2013

NY - Sex offender law not punitive: appeals court

Original Article

We are willing to bet that the people who continually say these laws are not punitive had criminal records, and years later more stipulations were added onto them to obey, then they'd find them unconstitutional, but as long as the laws don't affect them, then they are fine, but wait until one of their own children get hit with the same label.

05/30/2013

By Joseph Ax

NEW YORK (Reuters) - The state's sex offender registration law is remedial, not punitive, and therefore does not violate the U.S. Constitution's ex post facto clause or double jeopardy when applied retroactively, a New York state appeals court ruled on Thursday.

The Appellate Division, First Department, said the 1996 Sex Offender Registration Act, or SORA, is not a punitive statute, even though several amendments have imposed stricter registration and notification requirements.

"It may be true that subjecting sex offenders to lifetime registration and notification requirements ... increases the difficulties and embarrassment a sex offender may endure," wrote Justice Richard Andrias for a unanimous four-judge panel. "However ... the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional."

SORA requires defendants convicted of certain sex crimes to register as sex offenders with the state, with more stringent reporting for those designated as higher risk.

The underlying case involved [first name withheld] Parilla, a Bronx man who pleaded guilty in 1996 to attempted murder, admitting that in 1993 he raped a woman and stabbed her repeatedly, according to the decision. In 2003, after DNA evidence linked him to another rape, he pleaded guilty to rape and sodomy.

A Bronx Supreme Court judge designated him a level three sexually violent offender, and he appealed, claiming the statute had become punitive after a series of changes made the law stricter, such as lifetime registration and online posting of information.

Parilla argued that the law violated the Constitution's ex post facto clause, which prohibits laws that seek to increase the punishment for crimes committed before their enactment. He also said that it violated the state constitution's prohibition against double jeopardy, since it amounted to a second punishment for the same crime.

The First Department, however, found that the amendments to the law were not enough to transform it from a remedial statute to a punitive one.

Andrias cited a 1997 2nd U.S. Circuit Court of Appeals decision, Doe v. Pataki, that found SORA does not violate the ex post facto clause when applied retroactively because the law was intended to protect the public and enhance law enforcement's ability to investigate future sex crimes, not to punish convicted offenders.

Parilla had claimed the changes to the law since Doe v. Pataki made that decision obsolete, but Andrias disagreed.

"The post-Doe v. Pataki amendments on which defendant relies were aimed at improving the strength, efficiency and effectiveness of SORA as a civil statute, not at punishing sex offenders, and are not so punitive in effect as to negate the legislature's intent," Andrias wrote.

Andrias noted that numerous courts in New York and elsewhere have found statutes like SORA are not punitive, including the U.S. Supreme Court and the New York Court of Appeals.

The court also rejected Parilla's double jeopardy argument, since it found that the statute is not punitive.

Both the Third and Fourth Departments have also ruled that SORA does not violate the double jeopardy prohibition.

Lorca Morello of the Legal Aid Society, who represented Parilla on appeal, was not immediately available for comment. The Bronx district attorney's office, which prosecuted Parilla, did not immediately respond to a request for comment.

The panel also included Justices Peter Tom, David Saxe and Judith Gische.

The case is People v. Parilla, New York State Supreme Court, First Department, No. 9708.

For Parilla: Lorca Morello of the Legal Aid Society.

For the prosecution: Ravi Kantha and Joseph Ferdenzi of the Bronx district attorney's office.



3 comments :

tom said...

"It may be true that subjecting sex offenders to lifetime
registration and notification requirements ... increases the
difficulties and embarrassment a sex offender may endure," wrote Justice Richard Andrias for a unanimous four-judge panel. "However ... the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional."


Really? So just when does it become Unconstitutional then? At what point does it become punishment? WOW these are the people that make laws and uphold the constitution? Really these people are? WOW. No wonder there is NO HOPE AT ALL.

Mark said...

To Tom: NOW YOU ARE CATCHING ON TO IT MY FRIEND! The line to becoming unconstitutional has been so blurred no one know where the line in the sand is any longer. And the courts just do not want to set precedent with sex offender laws.

Daver said...

This country has lost track of the constitution. Not just with regard to the sex offender laws. They support the first ammendment when it suits them. If someone makes too much noise about what the government is up to they get investigated for domestic terrorism. The second ammendment is being destroyed. In Illinois they are trying to pass a law that would require PSO's that can't afford the $100.00 extorsion have to do 100 hours of community service. The Illinois ACLU does nothing. There goes the 13th ammendment. Folks believe me WE ARE LIVING IN A POLICE STATE ALREADY!