Wednesday, July 30, 2008

DEFINITION - Cruel and unusual punishment

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The statement that the government shall not inflict cruel and unusual punishment for crimes is found in the English Bill of Rights signed in 1689 by King William III and Queen Mary II who were then the joint rulers of England following the 'Glorious Revolution' of 1688.

These exact words later appeared in the Eighth Amendment to the United States Constitution (1787). The British Slavery Amelioration Act of 1798 also used the term, forbidding slave owners from using "cruel and unusual punishment" on slaves in the British Caribbean colonies.

Very similar words ('No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment') appear in Article Five of the Universal Declaration of Human Rights adopted by the United Nations General Assembly (A/RES/217, December 10, 1948). The right, under a different formulation ('No one shall be subjected to [...] inhuman or degrading treatment or punishment.') is found in Article Three of the European Convention on Human Rights (1950). The Canadian Charter of Rights and Freedoms (1982) also contains this fundamental right in section 12 and it is to be found again in Article Four (quoting the European Convention verbatim) of the Charter of Fundamental Rights of the European Union (2000). It is also found in Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

What these words mean in practice is the subject of much legal argument.

In general the interpretation of each of the two words is in keeping with the basic legal maxim that the "punishment should fit the crime".

The term "cruel" is necessarily flexible according to the circumstances, since all punishments are inherently cruel to some greater or lesser degree. The "unusual" provision has proven easier to interpret: providing that persons will not be subjected to arbitrary, humorous, or capricious punishment outside the normal course of the law (for example, tarring and feathering). Another way to make the punishment usual is to simply use it more often.

Though it's been a part of the law in the United States of America since its inception, by the twentieth century many people in the U.S. came to consider capital punishment per se to be a cruel and unusual punishment. As of 2006, twelve U.S. states have legislatively abolished the death penalty, and others have specifically prohibited certain methods of execution, e.g. by electrocution, by hanging, etc. The Supreme Court has ruled that the application of the death penalty, in certain circumstances — such as the execution of a minor under the age of 18, or of a mentally handicapped person, is unconstitutional, regardless of the existence of other aggravating circumstances. See also: Eighth Amendment to the United States Constitution. The Court also ruled in 1983 that the imposition of a sentence of life imprisonment without parole for a non-violent felony may constitute cruel and unusual punishment, although a subsequent decision represented a partial retreat from that position.

At the time the Eighth Amendment was written, capital punishment was in common use, in America, in Great Britain, and in Western Europe. There also existed punishments that were generally considered cruel and unusual, such as hanging, drawing, and quartering; burning at the stake; and impalement. These were so cruel that they were rarely inflicted, which was their point: if a punishment was common, it would lose its terrible aspect, but if it was only inflicted a few times a century, on the worst of criminals, their moans and screams would give second thoughts to anyone who might consider repeating their crimes.

In the European Union, on the other hand, prohibition of the death penalty has been made a fundamental condition which must either be passed into the law of states hoping to join, or, as in the case of Latvia, its use be subject to a moratorium. The Charter of Fundamental Rights of the European Union (which currently carries no legal standing) states in its second article that "Everyone has the right to life. No one shall be condemned to the death penalty, or executed."

VT - Barre OKs New Restrictions For Sex Offenders

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Ordinance Takes Effect Mid-August

BARRE CITY - The clock is ticking for registered sex offenders now living in, or considering a move to, Barre.

City leaders unanimously approved a new ordinance Tuesday night, reaffirming last week's vote establishing no-travel zones for paroled offenders. Areas within 1,000 feet of a school, municipal park or recreation area will be off-limits, effectively barring offenders from much of Barre.

"It will provide some measure of protection for children," said Mayor Thomas Lauzon, a two-term Republican who championed the ordinance at City Hall. "But there is no substitute for great parenting."

Forty-five registered sex offenders now live in Barre, the mayor said. He again urged the Vermont Legislature to pass statewide reforms which would supercede what Barre has approved.

Lauzon said he's worked on the issue for months, denying it comes in response to the kidnapping and murder of Brooke Bennett, 12, of Randolph in late June. Bennett's abduction, allegedly by a uncle who was a registered sex offended, stunned Vermont. The state Senate Judiciary Committee begins hearings next week on the Bennett case and the state's handling of offenders.

Under the terms of the new Barre ordinance, sex offenders now residing in a prohibited zone will not be forced to move unless they reoffend, Lauzon said. But new arrivals to town may not live - or pass through - a restricted area. Violators face civil penalties of $150 a day, Lauzon said, adding that landlords who fail to inquire of a tenant's criminal history can also be held liable. Multiple violations become criminal offenses.

Lauzon said Barre will host a seminar for concerned parents at the city's Opera House in August. He said nine other Vermont communities have inquired about the ordinance. Rutland City appears ready to pass one of its own next week.

Jason Gibbs, spokesman for Gov. James Douglas (Contact), said Douglas has no objection to these local ordinances but prefers a statewide response that includes longer mandatory sentences and "a real sex offender registry that tell parents where these predators are located."

And the Barre ordinance will likely face a court challenge, said Allen Gilbert, director of the Vermont chapter of the American Civil Liberties Union. Gilbert cites issues a range of potential constitutional issues and said if a Vermonter asks the ACLU to file a legal challenge on their behalf, the group likely would.

- So anybody living in this state and town, contact the ACLU now and get them to file a law suit on your behalf!

"I think we all want to make our kids safe and protect them," Gilbert said. "The problem with residency restriction laws is there's absolutely no evidence they work."

But many Barre parents disagree.

A few steps from the city pool, which becomes a "prohibited zone" next month, Daniel Bellavance applauded the city council's action. "As a father of two children, ages 12 and 5, it relieves me to know proper steps are being taken care of," he said.

For Sheila Jones, the issue is more than an abstraction. She said her Farwell Street home is located one block from an apartment occupied by a registered sex offender. Jones has four young children.

"It's a real thing," Jones said. "I've fought hard for my kids and will continue to keep fighting and hope others will do the same for their children."

Jones doesn't believe a person who sexually abuses a child is ever cured. "They should be in another area of the state, where the kids aren't."

NV - Criminal database - Lawmaker wants to catalog domestic violence offenders


The primary purpose of Nevada's sex offender registry is not the ostracization of felons, although the list certainly does that. First and foremost, law enforcement agencies maintain a Web site of convicted, released predators to alert citizens to the identities and whereabouts of those considered most likely to re-offend.

The registry is supposed to minimize public hysteria by sorting out the worst of the worst, enabling those interested to more accurately measure any safety risks to themselves and their loved ones.

But legislators, anxious to appear tough on crime, know points can be scored playing to the electorate's fears. Last year, the Legislature passed a law that would have reclassfied more than 2,000 low-level offenders as high-risk, flooding the Web database with enough names, addresses and photographs to put a sexual deviant on every street. That law was blocked by the courts pending appeals on its constitutionality.

Now comes Assemblyman James Ohrenschall (Email), D-Las Vegas, with a proposal for an all-new criminal registry. If re-elected this year, Mr. Ohrenschall wants to create the country's first Internet database of domestic violence offenders. The idea, he said, is to let people type in the names of suitors to see whether they have criminal histories of felony abuse.

"I haven't spoken to one woman who doesn't like the idea, and I haven't spoken to one man who has a sister or a daughter who doesn't like the idea," said Mr. Ohrenschall.

But would Mr. Ohrenschall's registry really make the public any safer? Olfelia Monje, a victim advocate for the Metropolitan Police Department, says many domestic abusers are indeed likely to re-offend, but suspects charged with felonies often negotiate guilty pleas on misdemeanors, and that some repeat offenders have no felony convictions on their records.

How many thousands of people would have to report to the state if Mr. Ohrenschall's bill were expanded to identify misdemeanor offenders? Sue Meuschke, executive director of the Nevada Network against Domestic Violence, points out that oftentimes it is the victim who is arrested and winds up with a conviction.

Mr. Ohrenschall's plan does nothing to segregate repeat offenders from first-timers, creating a huge new class of lifetime criminals who might lose more than a second or third date -- they could lose their livelihoods as well, even though they pose no legitimate public safety threat.

If, on the other hand, lawmakers are serious about protecting productive, law-abiding citizens from predators likely to re-offend, why not create a database of financial and property crime offenders -- the career car thieves and burglars who only need a few seconds to steal possessions purchased through months and years of diligent, honorable work?

- This is what I have been saying for years now.  If we must have a sex offender registry, then to not discriminate, put ALL CRIMINALS on a similar registry and have them obide by similar laws sex offenders are faced with, then lets see how many start screaming about their rights being violated!  If it saved one person, isn't it worth it?  Wouldn't you like to know about the psycho killer living next door, or the gang member or mafia boss?  I would.

Why play the political game of alerting us to certain types of offenders, but sending us to the courthouse or the police substation to search for others? Why not create a database of public records that lets us learn everything about everyone, from speeding tickets to bar fights?

The answer is that the creation of lists for every offense would move us even closer to a police state, where every citizen wears a scarlet letter around his neck.

- Well, I am all for it.  If I must wear a scarlett letter, so should all other criminals.

In addition, such endeavors are extremely expensive to create and require the establishment of all-new bureaucracies to coordinate and manage them for very little overall public benefit. If a particular record is important enough to a taxpayer -- such as whether a new beau has a domestic violence conviction -- it's not overly burdensome to require her to make a phone call or a trip to a government office to request it.

Yes, domestic violence causes a great deal of pain in neighborhoods everywhere and warrants sufficient attention from authorities and charities. But especially in today's economy, state resources are best spent on services that have a record of results, not feel-good experiments in political pandering.

- Well so does drug dealers, users, DUI offenders, theives, gang members, and many other crimes.  So we cannot pick out a few, we need all criminals on a registry, then we are all on equal ground.

NH - Sex offender seeks ordinance exemption in Dover

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DOVER — Registered sex offender Richard Jennings is asking a judge to exempt him from the city's sex offender ordinance while his legal case against the ordinance is being resolved.

Under the city's ordinance, registered sex offenders can't reside within 2,500 feet of a school or day care center and Jennings' Locust Street address is located about 1,200 feet from My School Kindergarten at 118 Locust St.

District Court Judge Stephen Morrison took Jennings' motion under advisement following a hearing at Dover District Court on Tuesday afternoon, but said before he left the bench that he was unlikely to rule in favor of it.

Jennings attorney, Barbara Keshen of the New Hampshire Civil Liberties Union, filed the motion last week asking the court to allow Jennings to live at 175 Locust St. upon his release from prison on Friday.

The NHCLU is asking the district court to throw away the ordinance and rule it unconstitutional. A hearing on that matter is scheduled for Nov 10 at 9 a.m.

Keshen said during Tuesday's hearing that moving to another location would create a severe financial hardship to Jennings, his fiance and her daughter.

"Mr. Jennings' offense didn't involve young children, it involved an individual just under the legal age," Keshen said. Keshen also referenced the fact that Jennings and his fiance, Janice Sessler, have been together for eight years.

Jennings, 41, was convicted in May 2000 on a charge of felonious sexual assault on a minor.

Keshen also argued that Jennings is considered a low-risk sex offender and it would be a waste of time for him to move, claiming the city's ordinance is likely to be found invalid.

"Cases have come down since I filed the original motion that seem to indicate that we're standing on very solid ground and that Mr. Jennings will prevail," Keshen said.

Keshen referred to a recent case in New Jersey where similar ordinances were struck down on the grounds they were pre-empted by state law.

Dover City Attorney Allan Krans said allowing Jennings to live on Locust Street would be ruling against the ordinance before the hearing to determine its constitutionality even took place and would open Dover up to an onslaught of sexual offenders who would move to the city looking to take advantage of that.

"They're (Jennings and Keshen) right, there will be a severe hardship, they're absolutely right, but it's not on Mr. Jennings. Its on the children and the citizens of Dover," Krans said. "The children will have a sex offender within 2,500 feet from their schools, without a hearing."

Jennings also never legally lived at 175 Locust St., so why should he be allowed to live at the residence, Krans argued.

"At best he had a technical residence is Dover, at worst he comes to court with his hands so unclean, it boggles the mind," he said.

Jennings moved to the city from Portsmouth at the end of 2007 and was arrested in November and charged with felony-level failure to register as a sexual offender for not notifying police that he moved from Portsmouth to Dover. That's also when police charged him with the ordinance violation.

He was arrested again in April for also living at the Locust Street address and not registering with city police. Jennings had claimed he was living with his parents in Epping, but several neighbors tipped police off about Jennings still living at the address, which led to police performing surveillance in the area.

As a result of the latter charge, he was sentenced to six-months at the Strafford County House of Corrections, which expires Friday.

Sessler, 47, was also charged in April for allegedly harboring Jennings while police tried to arrest him. She recently agreed to plea guilty to a charge of hindering apprehension.

While leaving the bench, Morrison said he would consider all factors but admitted that it's unlikely he could rule against the ordinance because currently there is no presumption that it's unconstitutional.

A decision on Jennings' living arrangements is expected later this week.

FL - If Deltona prosecutes sex offenders, city would have to pay for their defense

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Deltona must pay for the legal defense of three sex offenders it wants to force out, a three-judge panel ruled Tuesday.
The city is responsible for paying defense attorney Rob Sanders, who represents the indigent men cited for violating a city rule on where they can live.

Sanders hasn't sent a bill yet but said he has found legal problems and could argue the ordinance is unconstitutional. Such a trial could be costly.

"If the city continues to prosecute, in this current posture, it will cost the city thousands of dollars," said Sanders, who thought the city might end up dropping these cases.

City Attorney George Trovato said he had not yet read the ruling but would ask commissioners next week for a closed-door meeting to discuss the city's next step.

The three men -- Ricardo Maldonado, Charles Ambrose and Robert Bisson -- had been prosecuted under the city's old restrictions, which barred sex offenders from moving within 2,500 feet of a school, bus stop, park or day-care center.

Although Deltona has removed the extra-large buffer around bus stops, the city hadn't dropped the cases against the men.

Deltona also hasn't tried to prosecute new cases against other offenders living in the prohibited zones.

In a ruling issued Tuesday, three circuit judges agreed that if Deltona wants to prosecute the men, the city is responsible for paying their legal defense if the men can't hire attorneys.

The Public Defender's Office represents indigent clients in criminal cases but not in city violations, unless there is an agreement for the public defender to do so.

An appellate-court ruling from Fort Lauderdale made it clear that a Florida city is obligated to pay the legal defense, if there is no contract with the public defender.

Denise-Marie Balona of the Sentinel staff contributed to this report. Ludmilla Lelis can be reached at or 386-253-0964.

Fine-Tuning Megan’s Law

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These people need to see this link, and then they would see the number of vigilante tactics carried out against sex offenders.  Sounds like they are sort of glossing over the issue to me.


Megan’s Law, which requires public notification when a convicted sex offender moves into a community, is named for Megan Kanka, a 7-year-old New Jersey girl who was killed by a released sex offender near her home in Hamilton Township in 1994. However useful, the law has always carried great potential for danger, and now a New Jersey court has taken a step toward making it a more sophisticated instrument of public safety.

One danger has always been vigilantism. Child molesters living peaceably in a community after serving their time — and even some people mistaken for child molesters — have been beaten up or fired upon.

A disturbing new development is the proliferation of local ordinances that go beyond the reporting requirements of legislation like Megan’s Law by restricting where sex offenders may live. In some New Jersey towns, offenders cannot live within 2,500 feet of a school or playground. Often, the banned areas are so large as to effectively prohibit a sex offender from living anywhere in town.

These bans can do more harm than good. They will not deter a determined predator. Many law enforcement officials, including parole officers, have observed that they tend to bunch sex offenders in drug-infested, rundown neighborhoods that are poorly suited for anyone trying to turn around a life.

Two weeks ago, in a unanimous decision, a New Jersey appeals court ruled that such ordinances conflicted with the state’s Megan’s Law because they interfered with the broad discretion given to parole officers to decide where a sex offender may live. By arbitrarily ruling out certain areas, the judges suggested, the ordinances could deny offenders access to public transportation, treatment programs and employment.

Several state legislators now say they will try to amend the law to allow for residency limits. The courts in New York have upheld such bans and other states, including Oklahoma and Iowa, have adopted them.

There’s no reason for New Jersey to make the same mistake. We have long supported the registration requirement. But we also believe that officials should be aware that in the wrong hands, this information can lead to harassment or worse. And the decision about where a sex offender should live properly resides with law enforcement agencies.

AL - TCAP back on the streets tracking clues on wanted sex offenders

This is what media vigilantism (HARASSMENT) is all about. Instead of letting the police do their job, the media does it for ratings...  And their calling their so called show "To Catch A Predator!"  Must be hard up for viewers?  See the video at the site above.


For two days, the WAFF 48 To Catch a Predator team has been on the streets, tracking three wanted sex offenders.

All are convicted of sexual crimes against children and all were wanted for violating terms of their release from prison.

We recently introduced you to them by airing their mug shots on our WAFF 48 To Catch a Predator segment.

One, you've seen several times before on our segment.

He was featured multiple times in 2007 for not complying with sex offender notification aws.

But we took it a step further and wanted to get out in those communties to see what we could find on these men.

Beginning Monday morning, we covered Madison and Marshall Counties, traveling to businesses, knocking on doors, asking many questions.

Here's where our investigation led us.

Jeffery Allen Smith is wanted by the Madison County Sheriff's Office.

Investigators say he moved without giving notice.

We went to his old neigbhorhood in Gurley.

We were led to this home, a cabin off Shooting Star Trail, that neighbors say Smith built, but Smith was nowhere to be found.

We showed his picture to a neighbor who said Smith used to live in that cabin, but he's been gone about three years.

We were told he has family in Cullman, but Smith could be anywhere and it's important to call authorities if you've seen him.

On Monday, we were also on a mission to find Robert Earl Little, a frequent offender featured on our segment.

Madison County Investigator Shawn McClure says, "We've arrested him several times for violation of the Community Notification Act."

The last address he gave McClure was Mt. Lebanon Rd. in Toney.

But McClure is on top of his game when it comes to checking on sex offenders in his county, and a random, home visit to that address had the investigator issuing a warrant.

We knocked on several doors and chatted with many different neighbors in the area.

No one knew him.

We got a tip little was working at the Country Inn and Suites on University Dr. in Huntsville.

The general manager confirmed he was doing maintenance work for them through a contractor.

But after four days of work, Little was asked not to come back after employees recently saw he was wanted on television.

When Little was MIA twice in 2007, we went to a relative's house.

We stopped by Monday morning, afternoon, and once again Tuesday morning.

After a little waiting, three people came out and told us little turned himself the night before.

Madison County Investigators confirmed he was booked into the Madison County Jail late Monday night.

Monday we also traveled to Marshall County where Douglas Olechowski was wanted.

No one was at his last known address on Brown's Valley Rd. in Guntersville.

During our interview Sheriff Scott Walls said, "He typically does construction work... We got a phone call actually in the last couple of hours from Mr. Olechowski here at the jail, said he would turn himself in, but he was going to turn himself in on his own time."

Walls said he was likely doing construction work in the Florence/Muscle Shoals area.

He was asking people to call them if they had seen him.

Guess what?

Tuesday afternoon we got a follow-up call from the Marshall County Sheriff's Office.

Olechowski turned himself into the Marshall County Jail.

That's two off the streets and also great work by law enforcement.

The Madison and Marshall County Sheriff Offices are doing an excellent job informing the public and keeping track of these offenders.

But remember, Jeffery Allen Smith is still wanted.

We'd also like to add that Orlando Timmons, featured on last week's WAFF 48 To Catch a Predator, turned himself in after he saw his mug on our broadcast.