Monday, May 30, 2011

Due Process - Defining the sex offender

The following is a new blog we became aware of, due to a post in our forums. This has also been posted on Google's KNOL site, here.

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UK - Home Office falsely imprisoned sex offender

Original Article


By Harriet Grant

[name withheld] was detained under immigration law powers one day before he was due to be released

The Home Office falsely imprisoned a convicted sex offender in an immigration detention centre for nearly two years because of a failure to carry out regular reviews, a court has ruled.

The supreme court verdict on Wednesday is the end of a three-year legal battle for [name withheld], a failed asylum seeker from Zimbabwe who was detained while the Home Office tried to remove him from the UK.

Pierre Makhlouf, head of law at Bail for Immigration Detainees, which was involved in the case, said: "This is very good news for other cases we are fighting and will oblige the UK Border Agency to take the issue of deprivation of liberty more seriously."

"Detention is regularly for long periods of time and there is therefore a pressing need for full protective measures."

[name withheld] arrived in the UK in 2002 on a visitor's visa, which expired in 2004. In December 2005 he was convicted of assault and sexual assault and sentenced to 12 months in prison.

The day before he was due to be released, he was detained under Immigration Act powers.

Two years later, in April 2008, with [name withheld] still in detention, his lawyers took the case to the high court, arguing that his detention was unlawful because it was not reviewed on the required monthly basis. No review was carried out at all in the first 10 months of his detention.

He was released in June 2008 but has still not been removed to Zimbabwe because of conditions there.

At an earlier stage of the case at the high court, judge Justice Munby described as "casual mendacity" a Home Office practice in which the writing of monthly progress reports "seemed to have predated the actual decision".

Giving the majority verdict on Wednesday, Lord Hope said the court rejected the Home Office argument that the failure to follow procedures did not make detention unlawful.

An order was made for compensation, although the amount will be minimal if the Home Office can argue it would have detained [name withheld] even if the reviews had taken place.

A Home Office spokesperson said: "We are disappointed by the court's decision, but this will not affect our intention to deport this foreign national criminal."

"Our priority will always be to protect the public, and we will seek to remove any foreign national convicted of a serious crime."

Foreign national prisoners became a pressing issue for the Home Office in 2006. The then home secretary Charles Clarke was forced to resign when it was discovered that about 1,000 foreign national prisoners had been released without being considered for removal.

Clarke's successor, John Reid, introduced a tougher policy that all foreign nationals would be detained at the end of a criminal sentence.

Keith Vaz, Labour MP and head of the home affairs select committee, said: "Detaining people for long periods of time should not be an immigration solution. The current situation keeps those being held in limbo and is a waste of taxpayers' money."

Lawyers say the policy has led to hundreds of people being detained despite there being no way to remove them quickly from the UK.

Some countries, including Somalia, Iran and Algeria, refuse to co-operate with forced removals and it can take many months, or even years, to issue travel documents. The Home Office said detainees often refused to provide identification that would help speed up deportation.

Figures from September last year showed that 260 people had been held in immigration detention for more than a year. Most of those were former prisoners waiting to be removed.

Makhlouf said lawyers were dealing with more cases of long-term detention. "Increasingly we are getting more and more people who are being detained for three or four years," he said. "I get the sense that the Home Office forgets people."

Lawyer Stephanie Harrison, who specialises in unlawful detention cases, said: "There has been a move to detention which is increasingly unconnected to the limited powers that the Home Office has to detain pending examination or removal. There are significant numbers of people being detained where their cases can't be progressed and in those situations the detention is unlawful."

The Liberal Democrats promised before taking office to try to end indefinite detention.

But in a recent interview with the Guardian, Lib Dem deputy leader Simon Hughes said: "If people can't be sent back, except in the most severe criminal circumstances, they should be released. But you would have difficulty in persuading the government of any colour that there should be a fixed point at which people should be released, irrespective of the severity of the offence."

The Home Office also faces legal challenges from detainees who have lived legally in the UK and have children here. Many are fighting their deportation on the grounds that it would breach their right to a family life under article 8 of the European Human Rights Act.

[name withheld], 25, came to the UK from Somalia when he was 13. After being sentenced to 15 months in prison for assault in 2008, he was given a deportation order. Nearly two years later, he is still waiting to be removed.

Speaking from Harmondsworth detention centre, he told the Guardian: "I am living in a nightmare. I have no release date. You have just been locked up and [they] throw away the key."

His friends and family in Bolton, where he grew up, have been campaigning for him to be released.

Childhood friend Ibrahim Ismail said: "It's shocking, really shocking. Those months, those years he has been detained after his sentence finished, he's never going to get those back."

[name withheld]'s supporters say he should be allowed to come back to Bolton and carry on with his life. Ismail said: "There is nothing for him in Somalia; all his family are here. It's like taking a British person and dumping them in Somalia."

But [name withheld] said he would rather be deported than stay in detention any longer. "When I realised their intention is to keep me in prison I said, fair enough, deport me, I don't want to spend my life in this situation."

"In June 2010, I signed the papers to go to anywhere they want to send me. But they have failed. They have no plan other than to keep me in detention. It's a disaster, an absolute disaster."

Federal Prisoners Kept Beyond Their Sentences

Original Article

Old article I know, but I did not see it on this blog, so here it is.


(Listen) The U.S. Supreme Court hears arguments Tuesday in a case that tests the federal government's power to keep convicted sex offenders behind bars after they have served out their prison terms.

Currently, 84 such prisoners are indefinitely confined for treatment at a federal prison in North Carolina. Five of them are challenging the law under which they have been detained with no end in sight.

Typical is the case of [name withheld], who was sentenced to three years in prison for possession of child pornography. Six days short of completing his term, he was designated as "sexually dangerous," and the federal government moved to have him civilly committed for treatment. He has been kept in the North Carolina facility for two additional years, with little prospect of release.

Congress authorized such indefinite civil commitments for the first time in 2006 for sexual offenders who have completed their prison terms.

Two lower federal courts invalidated the law as unconstitutional, concluding that it overstepped the bounds of federal power under the Constitution, usurped powers reserved for the states and denied the due process of law to the individuals who are indefinitely committed.

The federal government appealed to the U.S. Supreme Court.

Beyond The Bounds Of The Constitution?

Civil commitment is traditionally dealt with by the states, and more than 20 states do have laws that allow for indefinite civil commitment of sex offenders after they serve their time. Indeed, in 1997 the U.S. Supreme Court upheld one such law from Kansas.

The Kansas statute, however, offers more protections for the individual. Under the federal law, the hearing to justify commitment is before a judge, but Kansas allows for a jury trial. Most important, the Kansas law requires the state to prove beyond a reasonable doubt that the offender is still dangerous, while the federal law requires only the less demanding showing of "clear and convincing proof," meaning essentially, that guilt is more likely than not.

Beyond the protections for the individual, there is the larger question of the limits of federal power. For a federal action to be constitutional, it has to be authorized by a specific enumerated provision of the Constitution, and the Constitution has no general civil commitment provision. So the Obama administration is defending the statute by linking civil commitment to the federal government's custody of the men in prison.

Or, as Kansas Solicitor General Stephen McAllister puts it, in siding with the federal government: "These individuals are legitimately, lawfully in federal custody, and so the question is, is the federal government powerless when it has a dangerous, mentally abnormal individual in its custody? Is it powerless to do something with this individual in the realm of civil commitment?"

Federal law does have a provision allowing for the transfer of dangerous prisoners to the states for civil commitment, but as McAllister concedes, "We don't want 'em."

Treating these offenders in state prison systems, he says, is expensive, and the states don't want to bear the costs.

Predicting Future Dangerousness

McAllister concedes that once an offender is in a treatment program, he rarely gets out because there is no good treatment that has worked with large numbers of offenders. Underlining that, he notes, is the fact that some offenders who have been released have committed horrific crimes.

But lawyer Jeff Green, who filed a brief on the opposite side of the case, points to statistics showing a relatively low recidivism rate. The headline cases, he says, prove a different point — that there is no way to predict future dangerousness.

"These are hideous crimes," he says, "but they demonstrate that the experts, in terms of identifying which individuals are dangerous, are no better than astrologers."

If someone is truly dangerous, Green argues, then the government should seek prison terms that are long enough to protect the public — not rely on an open-ended civil commitment system.

Green maintains that the government's so-called treatment program is nothing more than a Catch-22. The offender is required to talk about his sexual fantasies and accept responsibility, but those conversations can be used against him if he seeks release. Because there is no way for the offender to prove he is not dangerous, Green argues, release for most of these men "is a practical impossibility."

Or, as one lawyer who has visited the federal facility in North Carolina put it, "it is a pervert's cruise ship to nowhere."

A Constitutional Ripple Effect

McAllister, the Kansas solicitor general, concedes that few offenders get out once they are civilly committed in the states. That opens up more questions when considering a federal statute that provides fewer protections for the accused. If you can civilly commit someone as sexually dangerous, why not civilly commit people believed to be just dangerous in general? McAllister says civil commitment has to be linked to a mental abnormality or condition. But a lot of people in prison are deeply disturbed. There are drug addicts, kleptomaniacs, vicious sociopaths. So why not commit them too once they have completed their prison terms?

"Constitutionally, it might be possible," to extend the rationale for civil commitment to other kinds of crimes, McAllister says. "I don't have a constitutionally limiting line for what kinds of mental disorders might be permissible and what [might] not. If they lead to danger to others, potentially, they could be covered under such a law."

In other words, this is a case that could have a constitutional ripple effect.

MN - Rape raises questions of safety in state's sex-offender program

Original Article


By Paul McEnroe

In a case that raises questions about patient safety in the Minnesota Sex Offender Program, a resident raped at the Moose Lake treatment center alleges that staff failed to shield him from his violent roommate despite warnings that he felt endangered.

MINNEAPOLIS - In a case that raises questions about patient safety in the Minnesota Sex Offender Program, a resident raped at the Moose Lake treatment center alleges that staff failed to shield him from his violent roommate despite warnings that he felt endangered.

[name withheld], 35, sued the state last month in federal court, alleging his civil rights were not protected.

State officials admit the 2009 assault took place but argue that employees named in the suit were not responsible, according to court documents filed earlier this month.

However, a source with direct knowledge of the incident said in an interview this week that Moose Lake staff ignored requests by [name withheld] to be transferred to another room after his roommate, [name withheld], threatened him several times before the attack.

It took more than a year and a half after the incident before the state Department of Human Services issued a "client incompatibility" policy designed to protect patients from such attacks, according to a review of agency documents.

On Thursday, Human Services officials said they would not answer questions about security procedures at the time of the attack or delays in developing the incompatibility policy or say how many sexual assault investigations have been conducted at the facility.

The sex offender treatment program, whose population has nearly quadrupled in the past decade, was also faulted in March by Legislative Auditor James Nobles for providing inadequate therapy to patients and insufficient training to staff.

"Nobody took this kid [name withheld] seriously," the source said, "and we're going to pay because of it." The source spoke on condition of anonymity because the case is expected to go to mediation in coming weeks.

The source said that, in retrospect, one of the obvious failures by staff was allowing the physically intimidating, 266-pound [name withheld] to room with [name withheld], who weighs just over 140 pounds.

After the incident, [name withheld] tried to commit suicide by hanging himself with an electrical cord, according documents, but the cord broke.

Criminal histories

[name withheld], 45, was charged with rape and first-degree assault and later convicted of assault with great bodily harm. He was sentenced to more than nine years in prison; last month he was sent to the state's maximum security facility in Oak Park Heights.

Before being committed to Moose Lake in 1999, [name withheld] had two first-degree criminal sex convictions, in 1986 and 1989, according to records from the Department of Corrections.

[name withheld] has a history of criminal sexual assault and obscenity convictions and was committed to the sex offender program in 2007, records show.

The source said that in the days and weeks before the assault, both men had sought room transfers. [name withheld] brought up the endangerment issue during group sessions with counselors, who took no action, the source said.

[name withheld] later told authorities that he tried several times, without success, to change rooms because he harbored sexual fantasies about [name withheld], and that the slightly built man reminded him of his victims.

Another patient later told authorities he heard [name withheld] yelling during the incident, according to documents, and looked inside the room but could do nothing to stop the assault. He soon returned and managed to get the room door opened by hitting an intercom button.

After the attack, authorities found [name withheld] wrote several notes describing his sexual attraction to [name withheld], describing fantasies he wanted to carry out and making reference to suicide.

MO - Third Annual RSOL National Conference Aug 12-14

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Reform Sex Offender Laws is happy to invite SOSEN members to its Third Annual National RSOL Conference in St. Louis, Missouri, on August 12-14. The RSOL Conference is a unique opportunity to meet with people from all over the country who want to bring about change in sex offender laws! Please join us for this important event.

Confirmed speakers are:
  • Amy Borror of the Ohio Public Defenders Office and Adam Walsh Act expert;
  • Rep. David Day from the Missouri House of Representatives;
  • Tim Russo (Video, Channel, Web Site, Facebook), first open former sex offender to run for political office; former attorney, political, foreign policy & developmental consultant, and social media professional;
  • Janice Belucci, Attorney, professional lobbyist and California organizer; and Discussion panel of representatives from sister organizations, including the ACLU, ATSA, and Public Defenders.

In addition to these great speakers, we will have workshop sessions that will focus on practical knowledge covering a wide variety of advocacy issues. You will leave the conference feeling energized, educated and empowered!

Register Online Today! It shouldn't take you more than 5 minutes! Registration costs only $30 for members of SOSEN* who register before July 4! You will find all the information that you need – including for hotel booking – on our conference website at:

Book your hotel room early for a chance to win amazing prizes! In order to encourage early booking, the first ten people to book a room will go into a drawing for $100; the next ten people will be in a drawing for $75. This continues until we have met our 40-room goal! All conference attendees will also get a chance to win a 2-night stay for two at an inn in Beech Mountain, North Carolina! So you have plenty of reasons to register TODAY for the Third Annual RSOL National Conference!

If you have any questions about the conference, please email

See you in Saint Louis!


RSOL Conference-Planning Committee

Here is some audio videos from the DC Conference

Playlist Link