Thursday, September 9, 2010
By Terence Corcoran
CARMEL — A Putnam County law banning the most serious sex offenders from living near places that children frequent is unconstitutional, a state Supreme Court justice has ruled.
The Aug. 26 decision by Justice Francis A. Nicolai means the county can no longer order Level 2 and 3 sex offenders — considered the most likely to reoffend — to move. It also means that [name withheld], a former Virginia schoolteacher who spent nine years in federal prison on child pornography charges, can continue living in his parents' Southeast home.
[name withheld] had challenged the law, amended in 2009 by the Putnam County Legislature, that created child-safety zones within 1,000 feet of schools, child-care facilities, municipal recreation facilities and open-space areas.
Three sex offenders were ordered to move as a result. One was arrested and served a brief stint in the county jail before relocating, while a second also moved, although authorities later determined that he was only Level 1.
The third was [name withheld], 40, who had moved into his parents' Cobb Road home in 2006. He was no longer on parole or probation and had a job, according to court papers. He received a letter in 2009 from the Sheriff's Department telling him to relocate because the house was close to an open-space area.
[name withheld]'s Mahopac attorney, Francis J. O'Reilly, praised the decision Tuesday.
"The Putnam County sex- offender residency law was an ill-conceived reaction by the Putnam County Legislature to the revelation that persons convicted of sex crimes live among us," O'Reilly said in an e-mailed statement. "The attempt to regulate the residence of sex offenders beyond what is already provided in state law, which already provides a comprehensive plan for the management of sex offenders, was clearly an unconstitutional attempt to infringe on the rights afforded citizens under the Constitution by restricting where they can live."
Nicolai found that the law imposed after-the-fact punishments that violated the state and federal constitutions and that it couldn't be enforced retroactively on sex offenders who had a legal residence before the 2009 amendment.
County Attorney Jennifer S. Bumgarner called the ruling "unfortunate but not wholly unexpected."
"The Legislature knew what it was up against when it adopted the law, but felt that its passage was, nonetheless, in the best interests of the County's residents," she wrote in an e-mail Tuesday.
Bumgarner said she would not recommend an appeal but would do what legislators ask.
Legislator Tony Hay, R-Southeast, called the ruling a "devastating defeat for the people of Putnam County."
"My terrible disappointment is that the entire law has been deemed unconstitutional," Hay said. "I hope that any judge who renders decisions like this experiences the fear the people on Cobb Road felt and, in time, realizes why we proposed the law."
In the beginning (sounds a mite familiar) of Megan’s law, most of the Federal Justices voted the laws as unconstitutional and striking them down on a regular basis, I decided to go back in time and see just where the tides changed and found these little ditties in the NYT archives. During the same time period in which Megan’s law was being torn apart by Federal justices, Clinton made an unprecedented move and totally in the face of judicial independence, threatened a Justice, with his job, although, on a totally different issue than Megan’s, but still sent a strong message throughout the Justice system, “You don’t see it my way or the highway, you’ll lose your jobs!” type of thing. Seems after that the federal Justices began doing a double take (cross) and now were upholding Megan’s issues more than striking them down. Then good ol’ Boy Bush got in he nominated Justice Roberts to the supreme court, Roberts was the Attorney which appealed the Alaska case overruling a lower court’s declaration of unconstitutionality.
This totally flew over my head at the time. Clinton threatened justices with their jobs, Bush nominates “opponents” to the court. How'da hell we ever gonna get anything to go our way. Balderdash!!!
March 23, 1996
Judges as Political Issues
By LINDA GREENHOUSE
WASHINGTON, March 22— The quadrennial judge-bashing season was proceeding nicely, as Republican Presidential challengers outdid one another in their professed eagerness to save the country from liberal judges, when the Clinton Administration suddenly did the unexpected. It stepped on the Republicans' lines.
The White House raised the possibility of asking for the resignation of Judge Harold Baer Jr. of the Southern District of New York if the judge does not see his way clear to overturning an evidentiary ruling that allowed a suspected drug dealer to go free. By making clear its disapproval of the ruling by Judge Baer -- whom President Clinton named to the bench less than two years ago -- the Administration no doubt hoped for a neat pre-emptive strike that would keep the judge from becoming the negative icon of 1996, as Willie Horton was in the 1988 campaign.
The refusal of Michael D. McCurry, the White House press secretary, to rule out the possibility that Mr. Clinton might seek Judge Baer's resignation drew sharp criticism from bar leaders as a threat to judicial independence.
Late today, with the criticism mounting and threatening to engulf the Administration's desired message that it, too, was tough on crime, the White House made public a letter from Jack Quinn, counsel to the President, to Representative Bill McCollum of Florida, one of several House Republicans who earlier this month had asked Mr. Clinton to call for Judge Baer's resignation.
While "the President has made clear that he believes Judge Baer's decision is grievously wrong," the letter said, "the proper way for the executive branch to contest judicial decisions with which it disagrees is to challenge them in the courts, exactly as the Clinton Administration is doing in this case."
"The President supports the independence of the Federal judiciary, which is established by the Constitution," the letter continued. "Although comments in recent press reports may have led some to conclude otherwise, the President believes strongly that the issues now before Judge Baer should be resolved in the courts."
Its brief trajectory not withstanding, this incident could well have an undesired effect: not cooling the politically charged discourse about Federal judges, but rather, helping to enshrine them as the hapless poster children of this election year.
But it is a risk the Administration has evidently decided to take in response to what one White House official called the "tyranny of the anecdote" strategy that has worked well for Republicans in the past who have tried to tar Democrats as soft on crime. The best defense of its own record on judges, the Administration has decided, is to attack the other party's, in a tit for tat that raises the question of whether any judicial nomination can be considered on its merits for the foreseeable future, no matter who wins the election.
In response to reports that Republicans are combing the records of Clinton judicial appointees for any embarrassing, pro-defendant rulings, Administration lawyers are compiling their own lists of judges appointed by Presidents Ronald Reagan and George Bush who have had the temerity to suggest legalizing narcotics, raised questions about the Government's "war on drugs," or blocked the implementation of laws enabling residents of local communities to learn the whereabouts of onetime sex offenders.
The Administration's response comes after months of speeches by candidates for the Republican Presidential nomination, including Patrick J. Buchanan, who has attacked the Federal judiciary as a "dictatorship" and called for ending life tenure for judges, and Senator Bob Dole, who has made the promise to appoint conservative judges a cornerstone of his campaign. "In a Dole administration, liberal judges need not apply," Mr. Dole says in his speeches.
That the Clinton Administration evidently feels itself vulnerable to such campaign speeches strikes some liberal Democrats as highly paradoxical, because they have spent much of the past three years complaining that liberals need not apply for Clinton judgeships, either.
"There's no reason for the Administration to engage in a discussion that is such a threat to judicial independence," one of those liberal critics, Nan Aron, president of the Alliance for Justice, a coalition of public-interest law firms and liberal interest groups, said in an interview today. "This Administration from the beginning has chosen the path of least resistance. They have avoided controversy. They have avoided appointing anyone with a public record. They have stepped away at the slightest criticism."
Indeed, 40 percent of the 53 judges named by the Administration in 1995 are former prosecutors. The Clinton nominees comprise a moderate, mainstream group, highly rated by the American Bar Association (67 percent of the Clinton appointees have received the association's highest rating, compared to 52 percent of the judges named by Mr. Bush, 53 percent of those named by Mr. Reagan, and 57 percent of those named by President Jimmy Carter). All but a handful, in fact, received strong bipartisan support in the Senate.
The chance that Republican record-checkers will find much grist for damaging commercials is slight. Judge Baer, a veteran of the Liberal Party in New York who wrote in his disputed ruling that police brutality and corruption in upper Manhattan made it reasonable for people there to flee the police, is an anomaly.
The United States Attorney in Manhattan, Mary Jo White, a Clinton appointee, has asked Judge Baer to reconsider his ruling that the search by the police that found some $4 million worth of drugs in the trunk of a car in Washington Heights was invalid. The judge agreed to hold a new hearing, which took place last week. A decision is expected shortly.
"We feel the whole issue is a smoke screen put up by people who month in and month out have been voting against our efforts on crime," Mr. Quinn, the White House counsel, said in an interview tonight. "We are not going to take this lying down. We give as good as we get. If they think they're going to fool people with this, they are badly mistaken."
The campaign season is still young, and in Federal courthouses around the country motions to suppress evidence are being argued, defendants are negotiating plea bargains, bail is being set, appeals are being heard -- all the myriad, daily events of a complex justice system that in some as yet unknown but predictable way may yet test the Administration's theory that a strong offense is the best way to neutralize the crime issue.
And beyond Election Day there is the question of the Federal judges themselves, who are both at the center of this debate and, silenced by judicial ethics and traditions, oddly relegated to its sidelines.
Already under budget pressure from Congress, where members are questioning everything from the cost and design of new courthouses to whether courts really need all the judges allotted to them, judges' actions are likely to be scrutinized in ways they never expected when they left their law firms and faculty offices. Whether the job becomes substantially less appealing or more inhibiting remains to be seen. If it is any comfort as the debate swirls around them, Federal judges still possess one benefit that politicians so obviously lack: life tenure.
July 20, 2005
A Career Largely on One Side of the Bench and Involving a Wide Variety of Issues
By ADAM LIPTAK
John G. Roberts has been on the federal bench for two years, but he made his reputation on the other side of it, as one of the great Supreme Court advocates of his generation.
He last appeared before the Supreme Court in November 2002, six months before the Senate confirmed his nomination to the United States Court of Appeals for the District of Columbia Circuit.
The case concerned Alaska's law that required convicted sex offenders to register with the state, a requirement that the federal appeals court in San Francisco had struck down as punitive.
At the argument, Judge Roberts made a crisp and convincing argument that the lower court was wrong.
"The purpose of the historic shaming penalties was not to inform, because everyone in the colonial village already knew," he told the Supreme Court. "The purpose was to shame. Here, the purpose is to inform."
He won the case, by a vote of 6 to 3.
Judge Roberts was just as direct in presenting his argument in a complex standing case known as Lujan v. National Wildlife Federation, decided in 1990. The federal appeals court in Washington had allowed an environmental organization to challenge land-use decisions affecting millions of acres of public land based on sworn statements from two people saying they had been injured.
At the argument, Judge Roberts focused on one of those two, Peggy Kay Peterson.
"Federal courts are courts of limited jurisdiction," he said. "The presumption is that they are without jurisdiction, and the plaintiff must affirmatively prove that he has standing to invoke the power of the court."
"What Peterson said," he continued, "is that she was in the vicinity of this two-million-acre area, not even within the two million acres, just in the vicinity."
In a 5-to-4 decision, the court agreed.
Unlike his briefs and arguments, only a few of Judge Roberts's decisions on the appeals court have tackled controversial issues, and they will give potential opponents little ammunition. But in his few notable judicial decisions, Judge Roberts has shown keen analytical skill and a relatively light touch.
Not long after he joined the court, the full court was asked to reconsider a decision by a three-judge panel. The panel had upheld a federal regulation protecting arroyo toads as an endangered species.
The full court declined to rehear the case, and Judge Roberts filed a dissent. He said that the federal government was powerless to enforce the regulation because its impact was purely local.
"The panel's approach in this case," he wrote, "leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California" nonetheless satisfies the constitutional requirement that Congressional power be used to regulate interstate commerce.
The decision may have betrayed hostility to a certain form of environmentalism, a conservative view of federal power and a dash of humor.
Before joining the appeals court, Judge Roberts argued 39 cases before the Supreme Court in private practice and as one of the elite lawyers who represents the government in the Supreme Court in the solicitor general's office. It may not be fair to hold a lawyer accountable for positions he took on behalf of clients, legal experts said, but that will not stop interest groups from trying.
"When the most controversial thing you've written as a judge is a Commerce Clause case," said Patrick J. Schiltz, a law professor at the University of St. Thomas, "you're going to have to look at the briefs. The attacks on him will all be focused on the briefs he signed on for."
One of the briefs people will now be reading closely was filed by the government in 1990, in the administration of the first President George Bush, in the case Rust v. Sullivan. It bore the names of nine government lawyers, including Judge Roberts.
"We continue to believe that Roe was wrongly decided and should be overruled," it said. "The court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure or history of the Constitution."
The case was argued by Judge Roberts's boss at the time, Solicitor General Kenneth W. Starr.
The case itself involved the question of whether federal regulations that bar employees of federally financed family planning clinics from all discussion of abortion with their patients were constitutional. By a vote of 5 to 4, the court upheld the position advanced in the brief Judge Roberts signed. It did not, however, take up the brief's invitation to overrule Roe itself.
The Rust case did not figure in Judge Roberts's responses to a Senate questionnaire asking him to list his 10 most significant cases. The cases he noted were mostly in the Supreme Court and mostly for private clients. They represented an extraordinary mix of complex and important subjects, including criminal law, the environment, railroads, college athletics, Native Hawaiians, automobile recalls, arbitrations and patents.
Judge Roberts represented the State of Hawaii in a case decided in 2000 on whether a Hawaiian law that allowed only Native Hawaiians to vote in certain elections was constitutional. Opponents of the law said it amounted to race discrimination.
Judge Roberts made technical arguments concerning the trusts established on behalf of Native Hawaiians and, more broadly, said Native Hawaiians were an indigenous people worthy of protection.
In that case, he lost, 7 to 2, attracting the votes only of Justices John Paul Stevens and Ruth Bader Ginsburg, two of the court's most liberal members.
In 1998, while he was in private practice, the court appointed Judge Roberts to file a brief in support of a criminal defendant, Irwin Halper, who had been representing himself. Such appointments are an honor reserved for lawyers highly regarded by the court. Judge Roberts did not charge a fee.
The case raised a question under the double-jeopardy clause of the Constitution. After Mr. Halper served a criminal sentence for Medicaid fraud, the government sought to impose civil penalties on him for the same crime. While most cases suggested that the double-jeopardy clause applied only in the criminal context, Judge Roberts argued that the clause applied to later civil punishments as well.
"This is a civil case," he told the court, "and it can be brought, but only so long as you don't impose punishment a second time. If you seek a recovery beyond the damages and costs, that's punishment, and since the defendant has already been punished, he can't be punished a second time."
The Supreme Court accepted the argument, unanimously.
Ron Book, lobbyist, who lobbied for the cruel, harsh and unconstitutional sex offender laws, helped create the Julia Tuttle Causeway leper colony, that at one time, was home to over 100 ex-sex offenders.
Well, when the fire got hot, to help save Miami and his own image, he used tax payer money and grant money to help house ex-offenders in hotels and motels around the county.
Well, months later, they are homeless again, after the money ran out, like predicted, and the leper colony has just moved to the department of corrections.
Now the law states that ex-offenders cannot live 2,500 feet from a day care, school, etc, but, the DOC has a day care around the corner. So, is the law the law, or is it okay to be broken if it's the DOC?
Also, two new ex-offenders, just released from prison, were told to go live in the parking lot of the DOC, which is illegal, if the law is the law.
So Ron's "Bookville" is not gone, it's just moved!
By Matthew T. Hall
Measure sets longer prison sentences, tougher parole conditions and targeted treatment for sex offenders
When Doug Lambell remembers searching for Chelsea King six months ago, he feels anew the sad invigoration of a community coming together to stop a family from falling apart.
The 49-year-old banker and father of two from Scripps Ranch remembers showing up in Rancho Bernardo to search for a teenager he didn’t know. He remembers seeing more than 1,000 people standing in the rain and being bowled over by the shared purpose of wanting to bring Chelsea home.
He still cries about it.
“The desire we had to go out there and make something happen for that family climbed every day,” Lambell said.
While the search didn’t end well, the desire didn’t wane. It contributed Thursday to the creation of Chelsea’s Law, which establishes longer prison sentences, tougher parole conditions and targeted treatment for sex offenders like the one who killed Chelsea.
- This is just another feel-good law that will do nothing to prevent crime nor protect kids. And the people who kill another human being, IMO, should be in prison until the day they die, no treatment needed.
Before signing the legislation alongside Chelsea’s parents in a ceremony at Balboa Park, Gov. Arnold Schwarzenegger said this to more than 200 people in front of him: “Because of Chelsea, California’s children will be safer. Because of Chelsea, this never has to happen again, and I hope that it offers some comfort to all of you here today. My heart goes out to each of you.”
- Just the usual disinformation. How is this law going to prevent another child from being murdered? It's just more punishment after the fact, and a law, humanized by naming it after some child, so Nathan Fletcher can help his own career while pretending to be "for the children! "
The bill’s main sponsor, Assemblyman Nathan Fletcher, R-San Diego, added this: “An unspeakable tragedy, a powerful voice, a community demanding action, a Legislature that responded, a governor about to make history. This is due to Chelsea King. Today is her day.”
The crowd gave standing ovations to Fletcher and Brent and Kelly King, Chelsea’s parents.
“Thank you, California,” Brent King said. “From the moment our daughter went missing, you have showed your true spirit and you haven’t stopped since... We as a community have all learned the value of involvement.”
After Kelly King thanked everyone for their support, Jenna Belknap, president of peer counseling at Poway High School where Chelsea attended, spoke last.
“We had to find a new sense of normal without Chelsea physically in our lives,” she said. “Chelsea King is not a past-tense kind of girl.”
As February bled into March, at least 1,000 volunteers gathered each day for four days in a business park on Bernardo Plaza Court. The spot was about two miles from where Chelsea, a 17-year-old from Poway, went missing while on a run near Lake Hodges on Thursday, Feb. 25.
Details of her abduction are now known nationally. Registered sex offender John Albert Gardner III, 31, raped and killed her, a year after sexually assaulting and fatally stabbing 14-year-old Amber Dubois of Escondido.
Gardner pleaded guilty to the crimes in April and will live his days in prison. Chelsea’s and Amber’s legacies likely will live on in several laws bearing their names.
Moe Dubois, Amber’s father, championed three bills that Schwarzenegger intends to sign. They would establish guidelines for handling missing-persons investigations, require law enforcement to notify national databases two hours after a child abduction — instead of the current four — and create a missing-persons position within the California Department of Justice to help authorities find abducted children.
Tommy Sablan, 46, producer of the Jeff and Jer radio show and a parent of two teenagers from Rancho Peñasquitos, joined the search for Chelsea the day her body was found and said she and Amber are forever linked.
“I think of them as one and the same,” he said.
Sablan and others who combed parts of North County for Chelsea said one of the reasons so many people turned out so quickly to help was Amber’s then-unsolved disappearance.
They also said the area has a history of unity in the wake of tragedy, a reputation it earned during the 2003 and 2007 wildfires and the 2002 abduction and murder of 7-year-old Danielle Van Dam from Sabre Springs.
And they said that unlike Amber’s case, it was instantly clear, by the discovery of Chelsea’s car along running trails at Lake Hodges, that something was wrong.
Chelsea disappeared late Thursday and word spread quickly Friday — right before the weekend when many residents were available to help. Those people then began to learn about Chelsea.
She was pretty and popular. She read Tolstoy for fun. She played the French horn, loved to run, quoted Virgil.
She could have been your daughter, people said. She could have been mine.
The Texas-based Laura Recovery Center, which assists in searches for children nationwide, helped organize the local one. Two helpers flew in, and a third, Fiona Oberrick, a 46-year-old mother from Carmel Mountain Ranch whose association with the Texas group dates to Danielle Van Dam’s murder, volunteered as director of the Chelsea King Search Center.
It opened in the offices of RB United, an organization formed in response to the 2007 fires. Searchers said everyone checked their egos at the door to help.
People and businesses donated coffee, food, office supplies, even printers and photocopying machines. Fliers went up as far away as Nevada and Tijuana. Maps were made available. A Facebook page was created to connect everyone, dispel rumors and sustain faith.
“It was just get the job done,” said Valerie Brown, executive director of RB United. “Everybody was just holding out hope and we didn’t have any room for doubt.”
Poway country singer Steve Vaus, who had won a Grammy a month before, volunteered to empty bathroom trash cans and restock toilet paper each day at the search center.
“Those are the times that test the bonds of a community,” he said. “We just have a share-the-load mentality here in Poway because it’s our town, we’re part of it and when we all share the load, the load’s lighter.”
Boundaries in the area, already blurred by school, youth and church groups, essentially ceased to exist, Vaus and others said.
De Le, 29, arrived from Clairemont Mesa to help. He became a team leader responsible for a group of 20 people who would go on to search two to three areas a day for four days, armed with maps and orders not to touch potential evidence.
Le said a core group of eight people returned each day to his team. This group remains close. They gather at least once a month at the beach or each other’s houses for food and conversation.
The afternoon of March 2, after word spread that Chelsea’s body had been found, volunteers returned to the search center one last time.
“It was a very, very sad moment,” Le said. “We all broke down and we were just lingering around, passing condolences to each other and saying goodbye to the center, which was kind of hard because we’d all been so involved. We helped clean up the center, exchanged information with everyone and said goodbye.”
Like Le, Lambell is glad to have helped in any way he could during the search.
He said volunteers brimmed with earnestness, anxiety and passion. He said the search was a catalyst for change.
“I think it did an amazing job at a necessary time of making people aware that the community is what we make it.”
By SHEILA MARIKAR
Britney Spears' Reps Say Lawsuit 'Another Unfortunate Situation' of Someone Trying to Cash In
Britney Spears just can't catch a break.
On Wednesday, a former bodyguard of Spears' filed a sexual harassment lawsuit against the 28-year-old pop star, claiming she repeatedly made unwanted sexual advances toward him.
Fernando Flores, who worked for Spears from February to July of 2010, also claims the singer had sex in front of him and summoned him to her bedroom while she was naked.
In papers filed in Los Angeles Superior Court Wednesday and obtained by TMZ.com, Flores describes instances in which Spears allegedly displayed her naked body to him. One time after allegedly exposing herself, the suit claims Britney said, "You know you liked it."
The court documents also claim Spears engaged in explosive fights with her ex-husband, Kevin Federline, and brought Flores into the argument as well. Spears and Federline have two children together, Sean Preston, 4, and Jayden James, 3.
"On several occassions, with her children present, [Flores] witnessed Defendant Spears having violent quarrels with her boyfriend, during which Defendant Spears would yell 'F*** you!' 'Get the f*** outta my house etc. at [Flores.]"
One of Flores' allegations is more shocking than the rest. His lawsuit claims that on one occasion Spears allegedly demanded his belt then walked in the house and allegedly twice "savagely hit the small child [Sean Preston]" with the belt.
Though a dollar amount isn't named in the suit, Flores is seeking damages based around the sexual harassment incidents and for "intentional infliction of emotional distress."
Spears' publicist responded to the lawsuit with a statement on the singer's Web site.
"This lawsuit is another unfortunate situation where someone is trying to take advantage of the Spears family and make a name for himself," the statement said. "The Department of Children and Family Services conducted a proper investigation surrounding Mr. Flores' accusations and have closed the case without any further action. Ms. Spears and her attorneys have every expectation that this matter will be dismissed by the courts."
KISSIMMEE - An Orlando mother was arrested after disembarking from a cruise ship, mistaken for a suspected prostitute wanted in Central Florida.
Thirty-one-year-old [name withheld] spent more than 36 hours in a South Florida jail before her attorney could persuade a judge to let her out. She had been mistaken for a woman with the same name, but who was seven years younger, five inches taller and looked completely different.
The Osceola County Sheriff's Office says dispatchers relied on incorrect information when Broward County investigators called to confirm they had the right suspect.
[name withheld] was returning from a Caribbean cruise with her family, the Orlando Sentinel reported.
The real suspect faces charges of prostitution, child abuse and possession of heroin and drug paraphernalia.
Criminally Innocent - How can you be exonerated of a crime that never happened?
Please email this reporter and thank her for this most excellent article. You can leave a comment on the article itself, by clicking the link above, or email Jordan by clicking her name below. Also visit "Texas Voices" and thank them for everything they are doing. Email these fine folks, even if you do not live in this state. If a law is reformed in any state, it will probably be changed elsewhere, so any help in any state is good for us all!
By JORDAN SMITH
Sex offender laws are supposed to punish ‘predators’ and promote public safety. Critics argue that they increasingly produce precisely the opposite effects.
Henry met Sarah in the summer of 1994, when he was 19 years old. They lived in the same small New Jersey town but hadn't met until Henry was two years out of high school, living with a friend's family. "It was a transitional period," he recalled recently. "I was trying to figure out what I wanted to do with my life." Henry (fearing retaliation, he asked that we not use his real name) met Sarah (also not her real name) through a friend at Sarah's family home, which Henry says was a "social center. A lot of kids hung out there." He met Sarah's siblings and parents, and before long the two were dating; Sarah was 16, he says he was told. Henry didn't think much of the age difference and neither did her parents. They saw each other regularly, and her family included Henry in their outings – including a trip to Six Flags Great Adventure. That summer day, they'd piled into the family van for the trip to the amusement park; on the ride Henry and Sarah held hands. They'd kissed and touched but never took their affections any further, he says.
Then Sarah ran away from home; it wasn't the first time. "There were domestic problems," Henry recalls, "and she ran away a lot." Looking for the girl, the local cops contacted Henry. They asked Henry's age and peppered him with questions about their relationship. "We didn't have a sexual relationship; that was my saving grace," he said. Yet in the end, that "didn't matter." As a result of that investigation, Henry was charged with "sexual contact" with a minor for "fondling outside of the clothes," he said. As it turned out, Sarah was just 14 – a fact that surprised Henry. He had no idea she was that young; he had no reason to think she was not as old as she'd said.
The charge was a fourth-degree misdemeanor in New Jersey, and as a result of a plea bargain – Henry took the deal because he'd been told if he didn't he would get jail time – he was given 18 months probation and was required to register with the police as a sex offender for 10 years. Notably, under New Jersey law he was registered on a database of offenders that was private and used only by police. Henry completed his probation and complied with the registry requirement – updating his personal information and address at designated intervals. His case didn't get through the system "until 1997, so I didn't start the list until 1997," he said. "In 2007, it would've been 10 years, and it would've been over."
And then, in 2004, he moved to Texas.
When he was preparing to move south to be closer to his new wife's family, he checked in with police. They told him that because his charge was so minor they weren't sure he'd have to be listed on Texas' sex offender registry, and that even if he did have to register, his information would remain on a list compiled for police eyes only. "The police told me that it would be private," he says. "They lied." Not only are Henry's name and addresses – including that of his employer – now listed on the wildly expanding Texas sex offender registry, but even though New Jersey considered his offense a low-level misdemeanor, under Texas law the charge is considered a felony offense of "indecency with a child." As a result, he would have to have his personal information listed, publicly, for life. When he balked about the arbitrary change in terms, he says he was told that if he didn't like it he should "feel free to leave Texas."
Henry's story is not an uncommon one, says Mary Sue Molnar, founder of the nascent sex offender law reform group Texas Voices. Molnar's son is in prison for what she says was a consensual sexual relationship with a girl six years his junior. In the wake of her son's conviction, Molnar began doing research on sex offender laws, about which she then knew nothing; what she found she calls "unbelievable." Indeed, in Texas and across the nation in the late Eighties and early Nineties, lawmakers expanded the number of crimes considered sexual in nature, increased the consequent punishments, created onerous probation and parole restrictions and requirements for sex offender treatment, and vastly expanded the number of people who would also be required to register publicly as "sex offenders."
The original idea for increasing penalties and restrictions, and for creating the public registry, was that harsh punishment and the public branding of offenders would enhance public safety – saving children, especially, from falling victim to sexual predators. In practice, however, the rapid expansion of crime and punishment in this area of the law has created a clumsy system that has diluted those original intentions beyond recognition. As of March 1, there were nearly 63,000 persons on Texas' public database administered by the state's Department of Public Safety, which adds roughly 100 new names to the list each week. The database includes not only serial rapists and pedophiles but also thousands of offenders like Henry and like Molnar's son, whose conduct, while considered criminal because the girls involved were younger than the legal age of consent (in Texas, that's 17), is hardly as alarming as that of a middle-aged man with a demonstrable sexual penchant for prepubescent girls – the sort of predator that in theory the laws target.
The registry now includes not only these "Romeo and Juliet " cases – youthful, consensual relationships – but others caught in the criminal justice web for things such as indecent exposure (which also includes the "poor drunk" popped by police while urinating behind a 7-Eleven in the middle of the night, says attorney Bill Habern, a veteran Texas pardon and parole specialist); it has never been retooled to differentiate among offenders and their offenses. So the crimes of serial rapists and pedophiles have been conflated with much more minor offenses under the catch-all term "sex offender," leading many to believe that everyone listed on the registry is in fact worthy of continuing public scorn and fear. "The public in general only hears, 'He's a registered sex offender.' Through ignorance, they believe that is synonymous with 'sexual predator,'" says Austin Police Department Lt. Greg Moss. "Registered sex offenders are not only sexual predators."
An expert on the enforcement of the state's sex offender laws, Moss is the former supervisor over the APD's Sex Offender Apprehension and Registration Unit, a three-detective squad tasked with keeping track of more than 1,500 sexual offenders registered as living in the city of Austin – including Henry. Of those on Austin's list, Moss estimates that just 10% are "your sexually violent predators," those folks who "we should be proactively monitoring, to ensure they're abiding by probation and parole." But APD is responsible for monitoring everyone on the list – a task that is expensive and time-consuming and has very little, if any, positive impact on public safety.
Instead, a growing body of research on the effect of broad sex offender laws reflects that requiring thousands of individuals to register for increasingly long periods of time actually undermines public safety. "That's what the current science is telling us," says Liles Arnold, a sex offender treatment provider and chair of the state's Council on Sex Offender Treatment. Moreover, research also reflects that the restrictions placed on individuals by the municipalities in which they live – such as barring individuals from living near schools, parks, or in a home with young children, even if they're the offender's own children or siblings – create extensive collateral damage. "There are a growing number of registrants, not just in Texas but across the country," says Arnold. But there's no "delineation of who is dangerous or not."
While neither Molnar nor Henry, who is also a member of Texas Voices, argue that the state shouldn't be tracking individuals who are high-risk sexual predators, they do argue that current laws trap too many people and do much more harm than good. In short, the state should make sure that it stays true to the original intent of the registry and other sex-offense-related laws – such as by creating viable ways for some to earn a way off the registry. But the ability of the state to actually create a path to deregister people is currently stalled. At issue instead is whether the state will move in 2011 to implement the Adam Walsh Child Protection and Safety Act, a federal law passed four years ago that would, in essence, require the state to again expand its registry while making it even more difficult for low-risk offenders, like Henry and hundreds of others who are among the ranks of Texas Voices, to earn a chance to escape the list.
The political tide may finally be turning. There were once very few voices at the Capitol decrying the extremely punitive consequences of sex offender laws, and even fewer were the voices of former offenders whose lives have been permanently damaged. That's now changing, says Huntsville attorney Habern, as advocacy groups established by former sex offenders are beginning to appear. One is Texas Voices, which Molnar started in 2007. What began with just a handful of participants has grown to include 600 active members and more than 1,800 who have signed on to a petition to support reforming Texas law. "This tells me that there are hundreds of families out there suffering," says Molnar. "There are hundreds that don't know what else to do to deal with the mess that's been created."
Photo by Jana Birchum
Estell's murder prompted Texas lawmakers to get tough on those who would harm children and, although there was no evidence that Estell was sexually abused, to focus that toughness on laws aimed at punishing "sex offenders." At the time of Estell's disappearance, Blair, who'd previously been convicted of burglary and indecency with a child, was on parole. The facts surrounding Estell's disappearance and death combined with the facts of Blair's criminal history prompted state Sen. Florence Shapiro, R-Plano, to call for swift and strong action against sexual predators. "So that we may never forget the life that was lost and certainly the tragedy that occurred in Plano, I plan to call these Ashley's Laws," Shapiro told the Fort Worth Star-Telegram in 1994. "No community is safe while we have a broken criminal justice system. We always wait for the big tragedy before anything is done. Michael Blair should never have been free to roam that park."
In the years since Estell's death, Texas laws relating to sexual offenses and sexual offenders expanded dramatically. They now include more than 20 offenses considered sexual in nature, many of which will land a convicted person on the state's sex offender registry for life – indeed, one of Shapiro's successful bills made registration retroactive for individuals convicted of crimes dating as far back as 1970.
Have these laws made the public safer? The answer from a growing number of experts is a very firm "no." In fact, many researchers are now suggesting that these registration and public notification laws might actually harm public safety. In a recent study, Jill Levenson, a professor at Lynn University in Florida, and Richard Tewksbury, a professor at the University of Louisville, found that public disclosure also negatively impacts the families of sex offenders. "The public disclosure to which sex offenders are exposed is unprecedented, and therefore [registration and notification] is unique in the degree to which invisible sanctions are inadvertently imposed upon and experienced by the loved ones of offenders," they wrote. As such, these laws create "impacts that are broad, and ... deep and lasting. Family members, even those who do not live with [registered sex offenders], experience harassment, threats, violence, economic hardships, difficulties with housing, and psychological stresses simply because they are related to a sex offender," continues the study. "Whether intended or not, the criminal justice system, via [registration and notification] policies, extends punishments to a wide swath of society beyond sex offenders."
Many of these laws were rushed onto the books with little thought to their consequences and without the benefit of scientific research. What we thought might have been a good idea hasn't turned out that way – not unlike the way the Estell case turned out. Blair was exonerated in 2008 after new genetic testing proved that the hair from the crime scene was not his. Estell's real killer remains at large; the laws rushed onto the books in the wake of her murder remain – and, many argue, they pose a mounting problem for the state's criminal justice system.
For the June 10 Texas Senate Committee on Criminal Justice meeting, the room was packed. On the agenda was the committee's first interim charge, to study the "efficiency and fairness" of the sex offender registry system and make recommendations for improving it "if necessary" and to consider whether Texas should implement the Adam Walsh Act. Among the more than 100 people in attendance were dozens from Texas Voices – so many that the committee had to open up an overflow room to accommodate the crowd. It was the best turnout so far for the fledgling group, which only started working Capitol halls during the 2009 session. Molnar, a gregarious 52-year-old mother of two from San Antonio, now spends her days fielding dozens of calls and letters and coordinating with Jan Fewell (a member from Williamson County, who joined after a friend of her daughter landed in prison for a "Romeo and Juliet" teen romance), who works tirelessly to investigate the veracity of the stories offenders share with the group.
Molnar recalls talking with attorney Habern when she was just beginning to get the group together. Don't be surprised, he told her, if this project never gets off the ground. It's a population of offenders so marginalized that they're unlikely to want to go public with their stories, he advised. Instead, the opposite occurred. "Once they find out that there are other people that understand, then they feel like it's OK and that people will understand what they're going through," Molnar said recently. "They start telling their stories, and they'll say, 'I've never told anyone this before.' And then they're inspired."
The ranks of Texas Voices have swelled in just two years to include some 600 active members – folks who come to meetings (now held in cities across the state), who call and write lawmakers to lobby for a more sober approach to sex offender laws, and who are willing to attend meetings at the Capitol and publicly share their stories. In a short period of time, Molnar says, she's learned a lot – including that many of these cases are not what they seem. "We know there are tons of falsely accused people out there," she says. And there are countless other cases "where it looks like one thing and then," when you hear the underlying facts of the case, "you find out it's something else."
Photo by Jana Birchum
Peter took a plea bargain for five years probation and lifetime registration. He was doing fine to begin with, attending the weekly sex offender treatment sessions. But then, three years later, he got a DWI; he was sent to prison, where he spent four years and eight months. Since then, it's been tough for Kelley and Peter, who now have twin toddler sons. The onerous terms of probation – and the specter of being labeled for life as a sex offender – have really taken a toll on the family. Peter has a hard time finding any work; Kelley, who is disabled, cannot work. They've found few places where they can afford to live. And since getting out of prison, Peter has continued to struggle.
Peter completed his sentence on the original charge of sexual assault of a child but has since been popped for assault for defending his dad in a bar fight. Even though his latest trouble does not involve any sexual offense, as part of his current probation he must again attend sex offender treatment classes. He's now behind in paying for his treatment ($25 per week), and Kelley fears he's dancing dangerously close to having his probation revoked again. Although the U.S. Supreme Court has said that a person cannot be kicked back to prison strictly for falling behind in such payments, that doesn't seem to apply in Williamson County, say Molnar, Kelley, and others. All it takes, they note, is a single violation – including missing a treatment session – to trigger the revocation process. And some counties are more prone to take action. "When you're on sex offender probation they can always find a violation if they want to," says Molnar. Indeed, she says she was recently notified that one Harris County Texas Voices member is facing revocation for TV channel surfing and for sending an e-mail to a member of his Alcoholics Anonymous group; under the terms of his treatment contract he is only allowed to watch TV if he knows what channel he wants to watch, and he is banned from sending e-mails not work-related. "Come on; it's ridiculous," says Molnar.
The restrictions placed on many offenders take a toll. Kelley is convinced that Peter's subsequent troubles are a direct result of the burden of being branded a sexual offender. "Losing jobs, [offenders] can't pay for what they have to pay for, so they need welfare and they're filling up prisons," Kelley says of the plight of people in Peter's position. Peter has had to get "special permission to go to our church for the Easter egg hunt" because it is a place where children congregate, "and he can't go out on Halloween" with his kids. "He has to stay inside with the lights off." It's no wonder, she says, that he's depressed and has again found himself in trouble with the law. "If he had committed any other crime, he would have finished his sentence and they would've said, 'You're done,'" she notes. "Why is he suffering again for this same offense?"
The stated motivation for keeping such a tight leash on "sex offenders" is the belief that they are more prone to reoffend than other types of criminals. But that simply isn't true. First, there's the issue of who exactly commits sex offenses, especially those against children. Although a conceit of the law is that children are in danger of being assaulted by strangers, statistics show otherwise. According to the federal Bureau of Justice Statistics, 93% of assaults against children are perpetrated by people they know. Moreover, according to a 2003 report by the BJS, which tracked more than 272,000 individuals, including more than 9,600 convicted sex offenders, just 3.5% of sex offenders were rearrested and convicted of another sexual offense during the study period. The general recidivism rate for sexual offenders was 43% – meaning it was far more likely that these folks would be arrested for some other sort of crime, as happened with Peter. Notably, however, that's a lower rate than for non-sex offenders, 68% of whom were rearrested during the three years following their original release from prison. In other words, the notion that sex offenders are a special class of criminal, more prone to committing further acts of sexual violence, is by and large not true. "It's what B.F. Skinner and that crowd call 'one-trial learning,'" says Philip Taylor, a licensed sex offender treatment provider in Dallas. "The ritual of standing in front of the community and acknowledging an offense seems to be very effective treatment for the majority of folks."
Nonetheless, despite the research findings, no one seems especially eager to change the laws. "Any time there is a horrific case, there comes a law that is usually rushed into service with very little discussion or debate, and once it is passed it is impossible to delete it," notes Taylor. That's the case in Texas, he says, where thousands of names are added to the registry each year despite the growing body of research that demonstrates such laws to be ineffective. The Texas registry, says Taylor, is "ineffective at best and panic-mongering at worst."
State Sen. John Whitmire, D-Houston, chair of the Senate Committee on Criminal Justice, says that dealing with sex offenders "in general" is probably "our number one challenge." First, he says, there's the problem of public perception: "There is a fear factor," he notes. Second, there are the problems that current laws have created: "We're painting everybody with a broad brush." Third, there's the prospect of the Adam Walsh Act, and whether Texas will adopt the broad new federal requirements for registering and reporting sexual offenders. Whitmire is among a growing number of criminal justice professionals, including police, who believe that implementing the new federal law would likely make the current situation worse. "I don't think we do Adam Walsh," he said during a recent phone call from his Houston office. "Law enforcement says it's not necessary and might hurt their crime fighting."
The Adam Walsh Act, passed by Congress in 2006 with little debate or fanfare, is named for the 6-year-old boy whose 1981 Florida abduction and murder prompted the first modern wave of criminal statutes aimed at protecting children from predators – and simultaneously distorted the public perception of the number of stranger abductions and murders as well as the consequent legislation. The AWA requires states to add a host of new offenders to their sex offender registries – including juveniles as young as 14 – and requires the public reporting of additional information on those registries, including the name and address of a person's employer. (The idea behind the law was in part to standardize the registries kept by each state and federally recognized Indian tribe.)
The law also makes changes in the duration of registration for individuals within a tier system based on offense only, without consideration of empirical risk assessment. Although states and tribes were given until 2009 to "substantially" implement the law, to date just three states and two tribes have done so. Part of the issue is the cost of implementing the unfunded federal mandate; according to Washington, D.C.-based think tank the Justice Policy Institute, implementing the AWA could cost Texas nearly $39 million (conversely, not adopting the law would mean the loss of just $1.4 million in federal funding). Even bigger issues are what the tier system would do to the classification process and the pressure it would place on police agencies required to monitor registered offenders.
Since 2000, Texas' registration system has relied, in part, on one or more risk-assessment tools designed to determine the threat of reoffending. Under the new federal law that system would become obsolete, and police and treatment providers believe that would lead to a large number of offenders being tagged as high-risk, a designation that requires the most strict scrutiny by police. "There are a few areas of concern" with the AWA, says Council on Sex Offender Treatment Chair Arnold. One major concern is that there would be "lots of misclassification of offenders who are low-risk as high-risk" and vice versa. For example, said Lt. Moss, under the act, Henry would be considered a high-risk offender and would be required to check in with police in person, repeatedly, throughout the year, at a considerable cost to APD, which right now is running a ratio of about 400 offenders for each of the unit's detectives.
Henry's case "is probably the best example" of what the AWA would do. Technically, he says, Henry's offense was sexual indecency with a child, but realistically, he's a thirtysomething man with two children who had a youthful indiscretion. "What are the risks of [Henry] reoffending?" asks Moss. "Probably so low as to be unmeasurable." Under AWA, he would nonetheless be subject to a heightened level of scrutiny – and that comes with a big price tag for local cops. (Another offender, however, who might be a higher risk but who had pleaded his case down to a lower-level offense might receive a lower-risk designation and be able to escape much scrutiny at all.) To keep up with the current registration requirements, the APD has had to seek federal grant funding to train beat cops to do sex offender checks, and that money hasn't kept flowing, says Sgt. John Herring, the current supervisor of the sex offender unit. In 2010 alone, the city has had to fork over an additional $55,000 to help police do additional checks. Under AWA, that money would have to keep coming, notes Herring, or the department would have to shift more people to his small unit. "Either way, you're going to be spending more."
Under an extended federal deadline, the state has until July 2011 to decide whether to adopt the act. The ranks of experts and advocates lined up against adoption are swelling – they include not only Texas Voices' 600 active members, but key state lawmakers, including Whitmire; a growing number of lawyers; the Council on Sex Offender Treatment (which has officially come out against implementation); and even some police officers, including Moss. But many lawmakers remain hesitant, at best, to take any steps that might make them appear "soft" on molesters – an always-handy campaign wedge issue. That axiom was clearly on display last year when conservative Euless Republican state Rep. Todd Smith drew a primary opponent who attacked him for having sponsored a bill that might allow certain "Romeo and Juliet" offenders to escape having to register altogether. (Although an overwhelming majority of lawmakers favored the modest measure, Gov. Rick Perry vetoed the bill.)
In the meantime, however, in anticipation of the possibility that the state might implement the act, the state has begun putting specifics about offenders' employers onto the online registry. The addition to the public domain was a decision made by Attorney General Greg Abbott in response to several official inquiries, says Tela Mange, a spokeswoman for the Texas Department of Public Safety. Molnar believes the addition of that information is now serving as a further barrier to re-entry for sexual offenders, because many employers simply don't want to deal with any potential public hassles. "It is an obstacle to re-entry. Do we want these people to be working, or do we want them homeless?" she asks. "Which makes us safer?"
The uncertainty about what will happen with the AWA has completely stalled efforts to find a way to let people like Henry apply for removal from the list. At issue, says Allison Taylor, executive director of the Council on Sex Offender Treatment, is a provision of statute that ties any deregistration plan to federal law. At the time the statute was revised, the controlling federal law was the Jacob Wetterling Act, which in 1994 essentially created the model for public registries in place across the country. It allowed for "early termination potential" from the registry for four main crimes, including sexual indecency with a child, says Taylor. The state has not moved to implement that deregistration mechanism, however, because of the federal adoption of the AWA, which changes the offenses that can be considered for deregistration and how long an offender has to wait to apply.
Should the state decide against implementing AWA altogether, then lawmakers would have to revise existing law to untie the state and federal statutes, which would allow the state to develop its own unique deregistration procedures. "We've had hundreds of requests for early termination," says Taylor, but the council has been unable to process them. "We have taken lots of steps backwards because of the AWA. It is definitely a very flawed situation."
Photo by Jana Birchum
That is the only hope for potentially thousands of people who have wound up charged, convicted, and registered because of a youthful relationship, including those like Martin Ezell, who is married to the woman he is labeled as having assaulted as a child. He was much older than her when the two met in the late Nineties; he was already 32, and she was just 16. But they fell in love and have remained together for more than 12 years and now have three children. He has a master's degree from St. Edward's University and had hoped to teach high school; that can't happen now, and as a result his wife has to work more than one job to keep the family afloat. After a friend of their then-10-year-old daughter found Ezell's photo online, the couple had to sit their daughter down to try to explain what, exactly, a sex offender is and why her father is considered one. Not surprisingly, she didn't understand.
Ezell isn't sure he understands either – and he certainly doesn't understand why, all these years later, he's still being punished for something that the state has otherwise closed the book on. "If I had been convicted of drinking and driving I would've done my sentence, and I would be done. That doesn't mean that I'm still not drinking and driving," he says. But there's no online registry for DWI offenders. "So if you're my neighbor, you don't know that I'm a drunk, and if your kids are outside and playing and I've been drinking out at the lake, you're not going to know until I come wheeling around the corner." If public safety is a motivating factor for having him register, why doesn't the state seek to do the same for others? That's certainly not the solution, he says, but it does raise the question of what is fair and what is just. "If we don't start standing up and speaking for ourselves," he says, "nobody will."
That is exactly what Molnar hopes the members of Texas Voices will spend 2011 doing: speaking up and trying to change things inside the Capitol. Otherwise, she fears things will get far worse before they get even a little bit better. "What is going to happen when we get to 100,000 people on the list? To 200,000? Will we be safer?" she asks. "How much larger is our group going to have to grow?"
A readers tells a story about the nightmarish reality of our sex-offender laws regarding your cover story about homeless sex offenders [“Unintended consequence,” Sept. 1]: Thank you for bringing some of these issues to the forefront.
Most families suffer right along with their loved ones who happen to get caught up in the nightmare of a sex offense. While some offenses do deserve punishment and the removal of those who are a risk to society, every situation differs from the next. Yet, our society clumps them all together in a similar net.
Back in 2002, our son had a brief relationship with a girl who claimed to be 19, in El Dorado County. They did not have sex. When he discovered that she had lied about her age, he refused her calls and told her to leave him alone. He changed his phone number.
A year later, on the day he was awarded full custody of his young son, he was arrested. I had been an educator for Poway School District for more than 20 years at the time. What followed is too long a story, a total nightmare, but it included such corruption on the part of the Sheriff ’s Department, the attorneys and the court system that we will never recover. I ended up leaving a career that I loved.
Our son spent three years in prison. Upon his release, he somehow managed to get a transfer to be able to live with us. However, my family was then threatened and harassed by our neighbors. And while living here, we were unable to see our grandchildren and some of our friends.
I would lie in bed at night and wonder, “Could my husband get shot while doing yard work?” “Would some nut try to hurt one of us?” Then, Chelsea King’s death occurred. The Kings lived only a few streets from our home. My heart was broken for her family, and yet, somehow I believe our system might have contributed to her death. Could it be that the homelessness, the ridicule, the constant stress might have pushed someone mentally unstable over the edge? Now, we are being punished yet again for a unimaginable senseless crime of another. And our son would have not been charged at the time if we happened to live in another state. So, in California, you are considered the worst of the worst, and in another state, your offense is not considered a crime and you are a free man. And, I cannot help but think that if these laws were in place 40 years ago, my own husband could have suffered the same fate. I met him on his return from Vietnam. I was 17, and he was 22.
Every single member of our family has been effected. Every single member is punished. We are outcasts and lepers. The children in these families suffer the most. While saying the state is protecting children, they are destroying thousands of innocent lives. Our grandson now lives with a man who got a 15year-old pregnant. Same time frame, same county, but was never charged. Our grandson lives with this man, yet is not allowed contact with his own father, the man who loves and cherishes him.
We have since moved our son to another location. The costs associated with this are ruining us financially. He cannot find a job, wears GPS, must attend classes at parole, (they schedule these classes in the middle of the day, so how do they expect them to even have a job?) and we, as a family, can never be together. And that, is the hardest thing of all.
The following article entitled "Dozens of child predator arrests attributed to ORNL software" from the "Sex Offender Research: Issues, News and Recidivism" blog, points out the misleading article about how this software actually works. Click the link above to view the article.
Comments from eAdvocate:
Software here does not find offenders, what it does is search hard drives of offenders already arrested likely waiting in jail. Notice stats, used in 50 cases which resulted in 30 arrests. That means 20 people were unlawfully detained or said another way, the software was wrong 40% of the time. I'd say thats a bad record and those folks need to be suing for false arrests.