Monday, January 3, 2011

SOSEN - January 2011 SOSEN Newsletter!

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OFF TOPIC - CA - A New Crime Greets The New Year

Original Article

01/03/2011

The wild west of the internet just got a little less wild, though it remains decidedly west. California's SB 1411 (Fact Sheet) goes into effect today, making it a crime for you to be me (and vice versa). It could cost your friendly neighborhood sockpuppet $1000 and a year in jail. It remains unclear whether there will be special jails for sockpuppets, given that they can slip through the bars.

The law prohibits impersonating someone else online.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 528.5 is added to the Penal Code, to read:

528.5. (a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

(b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

As is generally the case, intent will be established backward, presumed by the conduct engaged and the result produced. We can't see into a person's mind, obviously, so we pretend that people intend the natural consequences of his act as seen from the outside. Nothing new here.

The four purposes enumerated, "harming, intimidating, threatening, or defrauding," cover the whole spectrum of possibility, largely due to the vagary and breadth of the initial work, "harming," with the following words consumed within it. The use of such a broad catch-all enables prosecutors to manufacture harm out of anything.

"Your honor, the defendant's outrageous sockpuppetry has cause the victim to lose sleep, feel badly about himself, refuse to wear clothing that makes him appear pear-shaped and no longer desire to eat his favorite confection, bon-bons, all to his terrible harm. The defendant is an animal and must be punished!"


FL - Sex Offender Registration is Required Even When Adjudication is Withheld

Original Article

12/28/2010

By Ron Chapman

In the case of [name withheld] versus the State of Florida (PDF), the issue was whether Mr. [name withheld] was a sex offender who had to register under Florida law even though adjudication was withheld in his case.

The relevant facts of this case are that in 1994 Mr. [name withheld] pled nolo contendere to two counts of lewd and lascivious assault upon a child. Both crimes were committed between 1987 and 1990. The judge withheld adjudication and sentenced [name withheld] to five years of probation. In 1999, [name withheld] successfully completed probation.

In 2008, [name withheld] was charged with committing the crime of failing to register as a sex offender. His lawyer filed a motion to dismiss the charge in which he argued that because adjudication had been withheld, [name withheld] had not been convicted and was therefore not a sex offender who was required to register with the Florida Department of Law Enforcement. Additionally, [name withheld] had pled nolo contendere. The judge denied the motion.

[name withheld] appealed the judge's ruling to Florida's Fifth District Court of Appeal which agreed with the lower court's decision to deny [name withheld]'s motion to dismiss.

The appellate court began its analysis by noting that Florida's sex-offender registration law was first enacted in 1997 while [name withheld] was still on probation. At that time, the word "convicted" meant that "the person has been determined guilty as a result of a plea or a trial, regardless of whether adjudication is withheld."

When [name withheld]'s probation ended in 1999, "convicted" meant that "regarding the person's offense, there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld."

When [name withheld] was charged with failure of a sex offender to properly register in 2008, "convicted" meant that "there has been a determination of guilt as a result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld, and includes an adjudication of delinquency of a juvenile as specified in this section...."

The appellate continued on to state that:

"Under the 1999 and 2008 language of [the sex offender registration law], 'convicted' for purposes of sex offender registry included entry of a plea of nolo contendere, regardless of whether adjudication was withheld. Based upon the record, [name withheld] indisputably met the criteria under the 1999 and 2008 versions of [the sex offender registration law] to be a sex offender who was required to register.[name withheld] relies on the fact that the language of the 1997 version of [the sex offender registration law] does not mention a plea of nolo contendere where adjudication was withheld under the definition of 'convicted.' Rather, it provides: ' "Convicted" means the person has been determined guilty as a result of a plea or a trial, regardless of whether adjudication is withheld.'

The fact that [name withheld] met the criteria under the 1999 and 2008 versions of [the sex offender registration law], rather than the 1997 version, is controlling because the sex offender registry requirements commenced when [name withheld]'s probation ended in 1999, and the State alleged in the [charging document] that [name withheld] failed to properly register in 2008. Even if the 1997 statutes were applicable, however, 'convicted' for purposes of sex offender registry under the 1997 version of [the sex offender registration law] also included the entry of a plea of nolo contendere where adjudication was withheld. In Montgomery v. State (PDF) . . . the Florida Supreme Court 'h[e]ld that a no contest plea followed by a withhold of adjudication is a conviction for purposes of sentencing under [Florida statute] section 921.0014.' Importantly, '[s]ection 921.0021 define[d] a conviction as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." ' . . . Since the definition of 'convicted' in the 1997 version of [the sex offender registration law] is essentially the same as the section 921.0021 definition of conviction, Montgomery supports the conclusion that 'convicted' under the 1997 version of [the sex offender registration law] included the entry of a plea of nolo contendere where adjudication was withheld."


ME - State to craft new sex crime laws

Original Article

01/02/2011

By Mal Leary

AUGUSTA — Veteran members of the Criminal Justice and Public Safety Committee are bracing for what they expect will be several proposals to address federal requirements for sex offender registries and state laws limiting where sex offenders can live.

You can be certain we will see many bills, just as we have in the past,” said Rep. Gary Plummer, R-Windham, co-chairman of the committee. “Our committee has always had a lot of legislation to consider.”

He expects two major areas will be involved with the provisions of the federal Adam Walsh law that penalizes states with loss of federal funds if they do not comply with the law requiring convicted sex offenders to register with the state. He said another area would be proposals to limit where sex offenders can live, an area that has led to several bills in the past.

I think we need to take a comprehensive look at what the law says, what we would be required to do and what it will cost us,” Plummer said, “and balance that against what we here in Maine think is the right thing to do.”

The Department of Justice granted the state a one-year extension to comply with the provisions of the law last summer with the understanding the state would comply.

The SMART Office [Office of Sex Offender Sentencing, Monitoring, Apprehending and Tracking] acknowledges Maine’s efforts to meet SORNA’s [Sex Offender Registration and Notification Act] requirements and expects Maine to substantially implement SORNA by the statutory deadline of July 17, 2011,” wrote Linda Baldwin, director of the SMART office at the U.S. Justice Department. “Failure to do so will result in a 10 percent loss in funding.”
- They will lose more money implementing the draconian unconstitutional laws, than if they did not.

That funding is from the Byrne Justice Assistance Grant program, of which the state could lose approximately $166,000 in federal law enforcement grants based on last year’s spending.

A budget for the current year has not been adopted by Congress.

The committee has not gone along with Adam Walsh so far,” said Sen. Stan Gerzofsky, D-Brunswick, a 10-year veteran of the committee who has been both House chairman and Senate chairman in previous sessions. “We have had some serious questions about it; we have been waiting to see if there would be any changes coming from Washington. The committee will have a lively conversation, a lively discussion.”

He said Maine has reacted to both the federal law and Maine Supreme Judicial Court rulings, although several court cases are still challenging portions of the law.

Maine law now provides an opportunity for certain sex offenders to petition to be removed from the requirement to register if they were sentenced after Jan. 1, 1982, and before the 1999 sex offender law.

The state law also provides the opportunity for those convicted in other states to petition for removal from Maine’s registration requirements, but only if they are now living in Maine and have complied with Maine law since Sept. 12, 2009, when the petition process was first effective. It also limits the opportunity to petition to those offenders who had completed their sentences at least 10 years before seeking the relief.

Complying with Adam Walsh has been a concern in many states,” said Rep. Ann Haskell, D-Portland, a past co-chairwoman of the panel. “I think we will see a lot of proposals to make some incremental changes here in Maine.”

For example, the Adam Walsh law requires a three-tier registry where a juvenile convicted of a single offense with another juvenile must register and regularly report, for life, his or her residence and other information such as the make and model of his or her car and its license plate.

The law also requires states to have lifetime registration for the most serious of offenders, such as those that involve sexual abuse or aggravated sexual abuse; abusive sexual contact against a minor less than 13 years old; or an offense involving kidnapping of a minor.

But the laws and definitions of sex crimes vary greatly by state, and creating a registry based on the risk of a person offending would be very expensive, experts have told Maine lawmakers.

But I think we can come up with a model of a three-tier system that would work in Maine,” Haskell said. “I am submitting a bill that I hope will do that.”

Lawmakers also expect several bills dealing with where sex offenders can live. There have been several proposals in past sessions to increase the distance from schools or day care centers from the current 750-foot radius.

That was a compromise,” said Rep. David Burns, R-Whiting, a committee member and a retired state trooper. “We probably will have proposals to change that and we will again have to look at finding something that works. “

He agreed that several bills probably will be proposed to change the sex offender registry, but he said he would not support proposals that would undermine the public’s ability to know if sex offenders live in their neighborhood.

I am concerned about keeping children safe,” he said.