Wednesday, December 25, 2013

MO - Missouri Supreme Court rules against sex offenders

Morning paper and coffee
Original Article



JEFFERSON CITY (AP) - Missouri's Supreme Court on Tuesday sided against three men previously convicted of a sex crime and facing a new criminal charge under a law making it illegal for them to be near certain parks.

The cases are the most recent to focus on a portion of the Missouri Constitution barring retrospective and ex post facto laws. The high court ruled last month the ban on retrospective laws does not apply to criminal statutes. A divided Missouri Supreme Court concluded Tuesday the parks restriction is a criminal law and the retrospective laws prohibition does not apply.
- The Constitution applies to everything / everyone, but what do you expect when those who swore an oath to defend this document are not?

A 2009 Missouri law makes it illegal for those convicted of sexual offenses from knowingly being present or loitering within 500 feet of a public park with playground equipment or a public swimming pool. First-time violators can be charged with a felony and spend up to four years in prison, and repeat offenders could face up to seven years in prison.

In the cases before the high court, each defendant was convicted of a sex offense during the late 1990s. A circuit court dismissed the charge for being in a park against two of the men on the grounds that it was unconstitutionally retrospective when applied to them. The third was appealing his conviction. The high court upheld the conviction and remanded the two other cases.
- I don't get it.  Above they say it doesn't apply to criminal cases, but for these two men it does?

Supreme Court Judge Zel Fischer wrote in the majority opinion that the park law is part of the criminal code, uses the language of a criminal provision and does not depend upon someone's registration as a sex offender. He said the law also carries a severe punishment.
- Huh?  So if the law is a criminal law, but doesn't depend on someone wearing the "sex offender" label, then who exactly is the ban for?

"The General Assembly intended for this statute to punish felons, who had been convicted of committing specific, enumerated crimes, for engaging in future conduct that the General Assembly determined should be prohibited," Fischer wrote.

The Missouri Supreme Court has seven judges. Three agreed with Fischer's conclusions.

Judge George W. Draper III wrote a dissent joined by two other judges. Draper said he believes the statute against being near parks should be construed as a civil law and that he would find it retrospective as applied to the three sex offenders. Draper said the law is designed to protect the public from harm and derives from the requirement for sex offenders to register, which has been deemed nonpunitive and civil in nature.


Dave said...

Have you ever noticed people and vigilantes don't use the same rhetoric regarding comments when the story involves a cop? Hypocrites!

Law enforcement often get free passes on sex offenses when in truth they should be held to a higher standard.

The politicians need to make a law to protect the children when it comes to law enforcement committing sex crimes and not having to register. Don't neighbors deserve to know?

eAdvocate said...

See decision for full explanation:


g4change said...

Read the decision. If it's a criminal law, isn't it also protected by the Constitution? Wouldn't it be better of ALL of these laws were deemed criminal and not civil? This is very perplexing. I wonder if anyone with insight and maybe even legal experience can chime in on this one.

Kevin said...

After some careful reading, I finally understand the decision and it actually makes sense legally.

The MO Supreme Court correctly defined the park restriction as a criminal statute because it is not regulatory in the sense that it does not serve an informative purpose to law enforcement or the public. It is meant to punish a certain class of offender. Furthermore, the park restriction statute applies to anyone that has been convicted of certain sex offenses, NOT registered sex offenders. In other words, if your registration is finished, the park restriction still applies to you. Since these men violated the statute AFTER it was enacted they were guilty as charged.

What is less clear to me is what would have happened if the statute was considered to be civil. It is my understanding that (which may be wrong) the park restriction statute would have been unconstitutional if it would have been determined to be civil on the basis that additional civil remedies cannot be applied to an individual after the initial set if civil remedies have been applied to an individual.

So, what does this mean? To me, this ruling means that the legislature can apply whatever restrictions it wants to sex offenders as long as they distance the restriction from the registration statute (by applying it to everyone convicted of sex offenses and not just registrants) and making it so punitive that it is clearly a criminal statute. Scary stuff...

Mark said...

The state is catching on! Now watch for other states to copy this law too, and hope their state high court's decisions are the same as this one!

Ethan L. said...

I always thought that laws were to apply to everybody equally. They cannot apply to one person and not another. This is an important part of our rights under the US constitution, the right to equal protection under the law, the right to be free from restriction after serving punishment for a crime, and the prohibition on ex post facto laws.

Kevin said...

They are ment to apply to everyone equally. That's why the US constitution has an equal protection (equal justice) clause. The only thing is that you have to convince a judge that sex offenders aren't any different than other criminals. So far, that hasn't happened.

Kris said...

That's a silly law, so let's so you visit a friend who's a couple blocks away from a park or a church, or let's presume a government office or plumber or some necessary visit such as a bank is 500 feet, I could sort of understand but not necessarily agree with a park ban since usually adults may be present and events may occur, after all its a public park.

The ban should be unconstitutional, after all whats to stop 1000 feet or cities with parks all over the place from doing this, it does criminalize , criminal activity, because how is going to visit a bank or plumbing store 2 blocks from a park actually a crime.