Tuesday, May 19, 2015

"NY Senate votes to create registry of violent felons"

The title of this post is the headline of this notable new AP article sent my way by a helpful reader.  Here are excerpts:

The New York state Senate has voted to create a public list of those convicted of violent felonies similar to the existing sex offender registry. The proposal is intended to prevent future crimes, and in particular domestic violence, by allowing people to check if a new acquaintance has a violent past.

The legislation is named Brittany's Law after Brittany Passalacqua, a 12-year-old from Geneva who was murdered in 2009 along with her mother by her mother's then boyfriend.  The boyfriend had a prior conviction for a violent felony.

Brittany’s grandmother, Dale Driscoll, remarked: “Words cannot express the gratitude my family and I have for Senator Nozzolio and his dedication and commitment to seeing ‘Brittany’s Law’ adopted into law.  The murder of my daughter and granddaughter devastated our family.  If this legislation prevents another family from suffering the loss we have experienced, then my daughter and granddaughter will not have died in vain. People should have the right to know if a person is a violent felon and I will continue to do everything I can to push this measure in the State Assembly.”...

The Senate passed the bill Monday.  Similar legislation is pending in the Assembly but no vote has been scheduled.

Critics argue a registry could stigmatize ex-offenders and make it harder for them to secure jobs and housing after they are released.

May 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Sunday, May 17, 2015

"Does Michigan's sex offender registry keep us safer?"

B9317136721Z.1_20150516190456_000_G8HANTDOK.1-0The question in the title of this post is the headline of this lengthy new Detroit Free Press article. The piece carries this subheadline: "Experts say such registries can be counterproductive; courts question constitutional fairness." Here are excerpts of a must-read piece for any and everyone concerned about the efficacy of sex offender regulations:

It has been 10 years since Shaun Webb, a married father and caretaker at an Oakland County Catholic church, was convicted of groping a teenage girl over her sweater, a claim Webb vehemently denies.  Webb, then-37 with a clean criminal record, was convicted of misdemeanor sexual assault and sent to jail for seven months.

Though a misdemeanor, state law demanded Webb be listed on the same public sex offender registry as hard-core rapists, pedophiles and other felons.  It has meant a decade of poverty, unemployment, harassment and depression for him. Under current state law, he'll be on the list until 2031.  "It's destroyed my life," Webb said from his rural home in Arenac County, where he now lives alone with his dog, Cody.

Webb is one of 43,000 convicted sex offenders in Michigan, most of which appear on the state online sex offender registry managed by the State Police.  Each state has a digital registry that can be searched on the Internet with a total of about 800,000 names.  The registries are widely monitored by parents, potential employers and cautious neighbors.

To be sure, registries in Michigan and across the nation help track violent sexual offenders and pedophiles who prey on children, and they're also politically popular and get lots of traffic online.  But Michigan's law — and some others across the nation — have come under fire lately as overly broad, vague and potentially unconstitutional.  For example, Michigan has the fourth-highest per capita number of people on its registry and is one of only 13 states that counts public urination as a sex crime.

Research also suggests registries do little to protect communities and often create ongoing misery for some who served their sentences and are unlikely to re-offend....

Even some early advocates have changed their minds about registries, including Patty Wetterling, the mother of Jacob Wetterling, who went missing when he was 11 and was never found. Police suspect Jacob was abducted by a convicted pedophile who was living nearby unbeknownst to neighbors.  No one was charged.

At the time, Wetterling lobbied passionately for a federal law authorizing registries and was at the White House in 1994 when President Bill Clinton signed legislation into law.  But she now advocates revisiting the laws, saying some juveniles and others who made mistakes are unnecessarily tarred for decades or life.  "Should they never be given a chance to turn their lives around?" she said in a published 2013 interview. "Instead, we let our anger drive us."

But some legislators and law enforcement officials say registries are useful because they help keep track of potentially dangerous people.  The supporters also dismiss the research, saying it's impossible to determine who might re-offend.  They caution against narrowing the definition in Michigan's law of who should be listed and are against adopting a new recommendation by some that defendants should be judged case by case by who is most likely to re-offend.

"The problem I have is should we go back and say only pedophiles have to register?" said state Sen. Rick Jones, a former sheriff who helped draft some of Michigan's sex offender registry laws. "Do we want violent sex offenders on the school grounds? Do we want public masturbators on the school grounds? I'm not prepared to change the way the list operates."

Many parents say the registries makes them feel safer.  Lori Petty, a legal secretary, has been logging on regularly over the years as she raised her two sons in Commerce Township. "If they were going over to a friend's house to visit, I would look to see who lived nearby, if there was a high concentration," she said. "Not that there was anything I could do, but it helps to know."  Her sons are now 18 and 25, and she monitors the site less frequently, using it to see who may have moved close by, she said. "I want to know who is living in my neighborhood."

Sex offender registry laws were first passed in the 1990s following a string of horrific child murders.  The registries were originally accessible only by police, allowing them to track the most dangerous offenders. But lawmakers in Michigan and other states expanded the laws over the years — they are now public record and include teenagers who had consensual sex, people arrested for public urination, people who had convictions expunged at the request of their victims, and people like Webb who have no felony convictions.

Earlier this month, a Florida couple was convicted of lewd behavior after having consensual sex on a public beach. They will have to register as sex offenders for the rest of their lives.  In Michigan, most of those convicted of sex offenses are listed online and show up with just a few key strokes on a website managed by the Michigan State Police....

Convicted sex offenders don't generate much public sympathy, but research in the last two decades shows they might not be very effective.  And higher courts recently called registries harsh and unconstitutional, including a ruling last month that says parts of Michigan's law are vague and unconstitutional, making it impossible in some instances for offenders to know whether they are following the law.  For many, there is also a question of fundamental fairness when, for example, a 19-year-old is convicted of having sex with his underage girlfriend or somebody convicted of public urination is grouped on the same list as a serial rapist.

Despite the court rulings and the research, it's doubtful public sex offender registries are going away, although it seems apparent Michigan and other states might be pushed into making some changes.  A big question, though, is whether Michigan's expansive definition of who should be on the sex offender registry is fair to people like Webb....

Nationally, there are about 800,000 people registered as sex offenders across the 50 states.  Michigan is particularly aggressive, ranking fourth in the nation with the number of offenders on the registry, following only California, Texas and Florida. It also ranks fourth per capita, with 417 registrants per 100,000 citizens.  It is one of only 13 states that count public urination as a sex crime, although two convictions are required before registration. And Michigan continues to require registration for consensual sex among teenagers if the age difference is greater than four years....

Michigan legislators are reviewing [the recent federal court] ruling and considering reforming the laws to make them compliant.  Some, though, think tougher laws are in order.  And they dismiss critics who say the registries cause unnecessary misery to those who have already served their sentences. "I say if you do the horrible rape, or if you have sex with a child, you deserve the consequences," said state Sen. Rick Jones, who helped draft some of Michigan's sex offender registry laws.

Jones questions the research that shows sex offenders are much less likely to re-offend and that the majority of those on the registry pose no threat. "I have 31 years of experience in police work, and as a retired sheriff in Eaton County I formed some very strong opinions that the science is still not clear for pedophiles. I believe it is society's duty to keep pedophiles from children so that the temptation isn't there. So I say you need to stay a thousand feet from schools."

A 2010 study by the American Journal of Public Health, examining sex offender laws nationwide and the best way to reduce recidivism, noted: "Research to date indicates that after 15 years the laws have had little impact on recidivism rates and the incidence of sexually based crimes. " Instead, the study found, "The most significant impact of these laws seems only to be numerous collateral consequences for communities, registered sex offenders — including a potential increased risk for recidivism — and their family members."

J.J. Prescott, a law professor at the University of Michigan and a nationally recognized expert on sex offender registry laws, agrees.  He has done statistical analysis of the impact the laws have on crime rates. "I believe that if a sex offender really wants to commit a crime, these laws are not going to be particularly effective at stopping him," he said, noting that there is no evidence that residency restrictions or "school safety zones" have had any positive impact on the rate of sexual assault on children, according to studies nationwide....

While his research also shows that the mere threat of having to publicly register may deter some potential offenders from committing their first crime, this effect is more than offset in states with large registries by higher levels of recidivism among those who have been convicted.

May 17, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (14) | TrackBack

Friday, May 15, 2015

Spectacular work on sex offender registration rules and other "collateral" stories at CCRC

Regular readers surely recall me highlighting all the great work still being done regularly over at the Collateral Consequences Resource Center.  The newest post by Margy Love there, "50-state survey of relief from sex offender registration," demostrates why CCRC must be a regular read for all would-be criminal justice fans.  Here is how it gets going:

We have prepared a new 50-state chart detailing the provisions for termination of the obligation to register as a sex offender in each state and under federal law.  This project was inspired by Wayne Logan’s recent article in the Wisconsin Law Review titled “Database Infamia: Exit from the Sex Offender Registries,”discussed on this site on April 15.  The original idea of the project was simply to present Professor Logan’s research in the same format as the other 50-state charts that are part of the NACDL Restoration of Rights Resource, supplementing it as necessary.  But getting all of the state laws condensed into a few categories turned out to be a considerably more complex task than we imagined, in part because we had to fill in a lot of gaps, and in part because of the extraordinary variety and complexity of the laws themselves.

We present it here as a work in progress in the hope that practitioners and researchers in each state will review our work and give us comments to help us make the chart most helpful to them and to affected individuals.

It is risky to try to generalize about the results of our study,  However, we found that registration laws seem to fall into three general categories:

  • 18 states provide a single indefinite or lifetime registration period for all sex offenses, but a substantial portion of these allow those convicted of less serious offenses to return to court after a specified period of time to seek removal;
  • 19 states and the District of Columbia have a two-tier registration system, which requires serious offenders and recidivists to register for life but automatically excuses those convicted of misdemeanors and other less serious offenses from the obligation to register after a specified period of time, typically 10 years;
  • 13 states and the federal system have a three-tier system, requiring Tier III offenders to register for life, and Tier I and Tier II offenders to register for a term of years, generally 15 and 25 years. 

And these other new posts from CCRC recently highlight the critical work being done at CCRC on topics beyond sex offender registration realities:

May 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Sunday, April 26, 2015

"Should former sex offenders be allowed on college campuses?"

The question in the title of this post is the first part of the headline given to this op-ed authored by Stephen JohnsonGrove, deputy director of the Ohio Justice & Policy Center. The rest of the headline, "Blanket policy doesn't work," suggests the author thinks the proper answer to this question is "no." And here are excerpts from the commentary:  

Having a sensible safety conversation about living, working, and learning alongside people with sex-related convictions is fairly rare in Ohio, as it is in the rest of the U.S. Politically expedient fear-mongering and knee-jerk policy-making tend to be the norm, sometimes even creating a social environment where sexual offending is more likely, not less. The Ohio Justice & Policy Center has long been a voice in this state for laws and policies that are firmly rooted in evidence and a long-range commitment to safety.

A recent editorial in the Tri-C student newspaper ("Sex Offenders Mingling with Minors," March 10) raised the possibility of a sensible conversation in the community college context — though not without a little fear-mongering. The scenario painted in that editorial started with a "39-year-old registered sex-offender on parole for two separate cases of gross sexual imposition with both victims being under the age of 13." This may be a good place to start, and perhaps an easier case that we could all agree upon — this person ought not be put in an environment where he could so readily form potentially manipulative relationships with minors again.

There are harder cases, however.  What about OJPC's client who, when a 19-year-old Marine home on leave, attended a party at Ohio State?  While there, he met a young woman who said she was 18 and who certainly looked 18.  After an evening of consensual sex, he was later confronted by her parents — by way of the local prosecutor — for statutory rape of a 16-year-old.  Now in his 40s with children of his own, this man is on the public registry for life and has endured vigilante threats from neighbors who know nothing of the nature of his one and only sex offense, other than what the state-mandated postcard says: "Gross Sexual Imposition, Minor Victim."...

People with sex offenses are — despite any instinctive revulsion we may have to the label "sex offender" — still people.  For some people with certain criminal records with a certain recency, perhaps online learning away from campus is the best alternative.  For others with solid records of rehabilitation, we can and should welcome them into all aspects of our community — colleges included.

April 26, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Wednesday, April 15, 2015

"Database Infamia: Exit from the Sex Offender Registries"

The title of this post is the title of this notable new article by Wayne Logan available via SSRN. Here is the abstract:

Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means.  Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships.

This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.

April 15, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Tuesday, April 14, 2015

"Criminal Justice Reform: The Present Moment"

The title of this post is the title of this notable new article by Lynn Adelman now available via SSRN. (Notably, Judge Adelman was among a small handful of judges who got a shout-out in Judge Rakoff's provocative recent speech at Harvard Law School about the need for the judiciary to speak out about modern mass incarceration.)   Here is the article's abstract:

As part of a symposium on the collateral consequences of criminal convictions sponsored by the Wisconsin Law Review, this paper, entitled “Criminal Justice Reform: The Present Moment,” discusses whether we have reached a point where we have a realistic opportunity to implement major reforms in our criminal justice system.

While recognizing both that the prospects for reform are greater than they have been, largely because of the increased awareness of the harm caused by mass incarceration, and that some progress has been made as, for example, the Supreme Court’s decision in Brown v. Plata upholding a lower court decision requiring California to reduce its prison population by approximately 40,000, the paper points out that any reforms would come on the heels of an approximately 35 year period of unremitting punitive legislation. As a result, it will be very difficult to put a serious dent in the mountain of harsh consequences, both direct and collateral, that is part of our present criminal justice system.

April 14, 2015 in Collateral consequences, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

Wednesday, April 08, 2015

Federal judge finds unconstitutional "geographic exclusion zones" for sex offenders in Michigan

Thanks to a helpful reader, I did not miss this notable new story from the state up north headlined "Sex offenders can be within 1,000 feet of schools after federal judge strikes down parts of law." Here are the details:

A federal judge struck down some portions of Michigan's Sex Offender Registry Act in a court decision handed down last week.  U.S. District Court Judge Robert Cleland issued a ruling March 31, striking down four portions of Michigan's Sex Offender Registry Act, calling them unconstitutional.  The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of five John Does and one Jane Doe against Michigan Gov. Rick Snyder and Michigan State Police Director Col. Kriste Etue.

Cleland's ruling stated the "geographic exclusion zones" in the Sex Offender Registry Act, such as student safety areas that stretch for 1,000 feet around schools, are unconstitutional, according to court documents.  

The law is too vague on whether the 1,000 feet barrier should be as the crow flies or how people actually travel, and if it goes from building-to-building or property-line-to-property-line, Cleland said in his ruling.  "While a prescribed distance may appear concrete on its face, without adequate guidance about how to measure the distance, such provisions are susceptible to vagueness concerns," he wrote.

Cleland also stated law enforcement doesn't have strong enough guidelines to know how to measure the 1,000-foot exclusion zone around schools. Neither sex offenders or law enforcement have the tools or data to determine the zones, even if the guidelines on how to measure the zones were stronger, he said. "Accordingly, due to (the Sex Offender Registry Act's) vagueness, registrants are forced to choose between limiting where the reside, work and loiter to a greater extent than is required by law or risk violating SORA," he wrote.

Cleland struck down other portions of the law as well, but ruled in favor of the government on the rest of the lawsuit. Other portions of the law ruled unconstitutional were: a requirement to report in person to the "registering authority" when an offender begins to drive a vehicle regularly or begins to use a new e-mail or instant messaging address; a requirement for an offender to report all telephone numbers routinely used by an offender; a requirement to report all e-mail and instant messaging addresses; a requirement to report the license plate number, registration number and description of any motor vehicle, aircraft or vessel used by an offender....

The ruling drew an immediate reaction from State Sen. Rick Jones, R-Grand Ledge. In a statement released Tuesday morning, Jones, a former sheriff, said he plans to help rewrite the law to make up for the judge's ruling. "I warn sex offenders to stay away from schools. This is one judge's ruling, and the law will soon be changed to clarify it," said Jones, the chair of the Senate Judiciary Committee. "I'm working to make sure there is no vagueness in Michigan's Sex Offender Registry law. Child molesters must stay away from our schools. Law enforcement will be watching."

The full ruling, which runs 70+ pages, is available at this link.

April 8, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Friday, March 27, 2015

Prodded by state court ruling, California announces it will not enforce sex offender residency restrictions

The potential import and impact of state court litigation over collateral consequences is on full display now in California as a result of the news reported in this Los Angeles Times article:

California officials announced Thursday that the state would stop enforcing a key provision of a voter-approved law that prohibits all registered sex offenders from living near schools. The California Department of Corrections and Rehabilitation said it would no longer impose the blanket restrictions outlined in Jessica's Law that forbids all sex offenders from living within 2,000 feet of a school or park, regardless of whether their crimes involved children.

High-risk sex offenders and those whose crimes involved children under 14 will still be prohibited from living within a half-mile of a school, the CDCR emphasized. Otherwise, officials will assess each parolee based on factors relating to their individual cases, the agency said. The shift comes nine years after California voters approved the controversial law, which has made it difficult for some sex offenders to find places to live.

The California Supreme Court on March 2 unanimously ruled that Jessica's Law violated the constitutional rights of parolees living in San Diego County who had argued that the limitations made it impossible for them to obtain housing. As a result, advocates said, some parolees were living in places like riverbeds and alleys.

"While the court's ruling is specific to San Diego County, its rationale is not," CDCR spokesman Luis Patino said Thursday. "After reviewing the court's analysis, the state attorney general's office advised CDCR that applying the blanket mandatory residency restrictions of Jessica's Law would be found to be unconstitutional in every county."

The CDCR sent a memo to state parole officials on Wednesday outlining the policy change. The directive said residency restrictions could be established if there was a “nexus to their commitment offense, criminal history and/or future criminality." The memo said officials would soon provide further direction on how to modify conditions for parolees currently already living in the community....

A CDCR report found that the number of homeless sex offenders statewide increased by about 24 times in the three years after Jessica's Law took effect. Parole officers told the court that homeless parolees were more difficult to supervise and posed a greater risk to public safety than those with homes....  The court ultimately determined that the residency restrictions did not advance the goal of protecting children and infringed on parolees' constitutional rights to be free of unreasonable, arbitrary and oppressive government action.

This news reinforces my view that California's Supreme Court ruling in In re Taylor, S206143 (Cal. March 2, 2015) (available here) was especially significant for the future of sex offender residency restrictions.  I am not surprised that California state officials concluded after reading Taylor that it had to modify how it approached Jessica's Law.  The next big question is whether and how courts in other states will respond if and when Taylor is used by advocates to attack other residency restrictions similar to Jessica's Law. 

A few prior recent related posts:

March 27, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Thursday, March 19, 2015

Effective review of the import and impact of new reentry certificates for former offenders

The Marshall Project has this interesting new piece of original reporting on an important new component of reentry effort.  The piece is headlined "Forgiving vs. Forgetting: For offenders seeking a new life, a new redemption tool," and here is an excerpt:

[T]he granting of so-called Certificates of Rehabilitation has become an increasingly popular compromise version of full expungement in courts around the country. Between 2009 and 2014, nine states and Washington, D.C. began issuing the documents, also called certificates of relief, recovery, achievement, or employability.

“These certificates are a remarkably dynamic new option,” says Kari Hamel, a civil legal aid attorney in North Carolina who is working to make the certificates — available in that state since 2011 — more accessible to more people with criminal records. “It’s a way of showing employers that the crime someone committed probably wasn’t committed yesterday. It makes what has happened since the crime a fully official part of that person’s record, for all employers to see.”

“That’s the key,” she adds. “Rehabilitation is absolutely a part of a person’s history of trouble with the law, it’s just the second part, the positive part.”

Paul Biebel, the presiding judge for Chicago's criminal court, agrees that the certificates are a promising new option. "Only over the last few years have we seen more of these coming through the court," he says of the certificates, "but I feel very strongly that they are an additional tool in a judge's toolbox to evaluate people.  We judges are prepared to send people to prison.  But now, if the evidence proves rehabilitation, we also have a tool for redeeming people."

March 19, 2015 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision | Permalink | Comments (0) | TrackBack

Monday, March 16, 2015

Another round of notable new posts from the Collateral Consequences Resource Center

It has been a few weeks since I highlighted all the great work still being done regularly over at the Collateral Consequences Resource Center. So here are a bunch of new posts from CCRC from recent weeks:

March 16, 2015 in Collateral consequences, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, March 13, 2015

Utah establishes criminal registry for white-collar offenders

Via this New York Times piece, I see that Utah has extended the idea of a criminal registry to fraudsters. Though I have reservations about criminal registries for a variety of reasons, I think this particular kind of registry might make a lot of sense as a recidivism/crime prevention measure.  Here is how this fascinating story gets started:

With just a point and a click, you can browse a face book of felons, a new government website that will warn of the danger these criminals pose to society. Only these are not the faces of sex offenders and serial killers. These criminals are mortgage schemers and inside traders, most likely armed with nothing more than an M.B.A. or a law degree.

Their faces will soon appear online courtesy of the Utah Legislature, which on Wednesday approved a measure to build the nation’s first white-collar offender registry, appending a scarlet letter of sorts on the state’s financial felons.  The registry — quirky even by the standards of a legislature that this week reinstated firing squads as a method of execution — will be replete with a “a recent photograph” of Utah’s white-collar offenders and, in case they try to run or hide, their “date of birth, height, weight, and eye and hair color.”

“White-collar crime is an epidemic in Utah,” said Sean Reyes, the state’s attorney general who formulated the idea for the registry when he was a defense lawyer, “representing some of these bad guys.” A former mixed martial arts fighter who has a metal plate lodged in his eye socket from a basketball injury, Mr. Reyes noted that while violent crimes were devastating, many “physical wounds heal,” whereas white-collar crimes “can forever deplete your life savings.”

While some Utah lawmakers fear that the registry is overkill, the idea does tap into a vein of populist outrage over financial misdeeds. As much as sex offender registries spread state by state, so too could a white-collar crime registry find favor across the nation, say its supporters.

The legislation’s sponsor in the Utah Senate, Curtis S. Bramble, a Republican, plans to promote the idea through his role as president-elect of the National Conference of State Legislatures, an influential group, saying that “the registry could become a best practices for other states.”

March 13, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Sunday, March 08, 2015

Can a sheriff prohibit sex offenders from a church that is sometimes a school?

The question in the title of this post is prompted by this story coming from North Carolina, headlined "Graham sheriff bans sex offenders from church." Here are the details:

A sheriff in one of North Carolina's smallest counties told sex offenders they can't attend church services, citing a state law meant to keep them from day care centers and schools. Sheriff Danny Millsaps, in Graham County, told the registered offenders about his decision on Feb. 17, according to a letter obtained by the Asheville Citizen-Times on Friday....

"This is an effort to protect the citizens and children of the community of Graham (County)," he wrote. "I cannot let one sex offender go to church and not let all registered sex offenders go to church." He invited them to attend church service at the county jail.

Millsaps, in an interview on Friday, said he may have made a mistake when he wrote that offenders "are not permitted to attend church services." He said he understands the Constitution gives everyone the right to religious freedom. But, he said, he's standing by his take on the law blocking offenders from places where children are present.

"I understand I can't keep them from going to church," he said. "That may have been misunderstood. I'll be the first one to say I might have made mistakes in the wording of that letter." He said he has no immediate plans to arrest a sex offender should one of the 20 in his county attend church on Sunday.

Graham County Manager Greg Cable said the county attorney is looking into the matter and any legal mistakes would be corrected. The American Civil Liberties Union in Raleigh, at the newspaper's request, is reviewing the letter the sheriff sent. The newspaper also sent a copy to the state Department of Justice for an opinion on the law....

Other North Carolina counties have dealt with the same issue. Deputies in Chatham County in 2009 arrested a sex offender for attending church, citing the same law. A state Superior Court judge eventually ruled the law, as applied to churches, was unconstitutional.

In Buncombe County, sex offenders are permitted in church as long as pastors know and are in agreement, Sheriff Van Duncan says. That's similar to the county's policy for allowing sex offenders at school events such as ball games. They are allowed as long as school administrators have warning and the offenders are monitored to some extent, the sheriff said. The law allows schools to do this, a factor the judge noted back in 2009 in the Chatham County case.

Duncan said if a sex offender threatens a child at a church or school event, the law can be enforced and used to ban the offender. He said church leaders in Buncombe County, generally, want to minister to sex offenders.

The law applies to churches that run schools Monday-Friday the same as it would apply to county or city schools during the week. Sex offenders are generally banned from school property.

March 8, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Religion, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Wednesday, March 04, 2015

"Boxed Out: Criminal History Screening and College Application Attrition"

CoverBoxedOutThe title of this post is the title of this notable new report, which is summarized via this website at the Center for Community Alternatives: 

The Center for Community Alternatives (CCA) and the Education from the Inside Out Coalition are pleased to announce the release of "Boxed Out: Criminal History Screening and College Application Attrition" written by Alan Rosenthal, Esq., Advisor on Special Projects and Counsel; Emily NaPier, M.A., Senior Research Associate; Patricia Warth, Esq. Director of Justice Strategies; and Marsha Weissman, Ph.D., Executive Director.

This report builds upon CCA's 2010 study, "The Use of Criminal History Records in College Admissions Reconsidered." It makes clear how the criminal history box on college applications and the supplemental requirements and procedures that follow create barriers to higher education for otherwise qualified applicants. We focused on the State University of New York (SUNY), and found that almost two out of every three applicants who disclosed a felony conviction were denied access to higher education, not because of purposeful denial of their application but because they were driven out of the application process by the stigmatizing questions and the "gauntlet" of additional requirements. We call this phenomenon "felony application attrition."

This case study of SUNY has national implications. The supplemental procedures and requirements imposed by SUNY campuses are not unique, and reflect procedures followed by many colleges and universities across the county.

March 4, 2015 in Collateral consequences, Criminal Sentences Alternatives | Permalink | Comments (2) | TrackBack

Monday, March 02, 2015

California Supreme Court rules blanket sex-offender residency restriction fails rational basis review

In recent years, a number of state courts have struck down local sex-offender residency restrictions on a number of different legal grounds.  As this AP article reports, another state Supreme Court is now part of this group: "California's Supreme Court ruled Monday the state cannot prohibit all registered sex offenders in San Diego County from living within 2,000 feet of a school or park."

As the title of this post hints, the unanimous ruling released today in In re Taylor, S206143 (Cal. March 2, 2015) (available here), strikes me as especially significant because of the legal rationale used to strike down a state-wide voter-initiative law as it was applied in one jurisdiction. These passages explaining the heart of the ruling highlight why Taylor will likely be cited in challenges to sex offender residency restrictions nationwide:

In this case, however, we need not decide whether rational basis or heightened strict scrutiny review should be invoked in scrutinizing petitioners' constitutional challenges to section 3003.5(b).  As we next explain, we are persuaded that blanket enforcement of the mandatory residency restrictions of Jessica's Law, as applied to registered sex offenders on parole in San Diego County, cannot survive even the more deferential rational basis standard of constitutional review. Such enforcement has imposed harsh and severe restrictions and disabilities on the affected parolees‟ liberty and privacy rights, however limited, while producing conditions that hamper, rather than foster, efforts to monitor, supervise, and rehabilitate these persons.  Accordingly, it bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators, and has infringed the affected parolees' basic constitutional right to be free of official action that is unreasonable, arbitrary, and oppressive....

The authorities we have cited above explain that all parolees retain certain basic rights and liberty interests, and enjoy a measure of constitutional protection against the arbitrary, oppressive and unreasonable curtailment of “the core values of unqualified liberty” (Morrissey v. Brewer, supra, 408 U.S. at p. 482), even while they remain in the constructive legal custody of state prison authorities until officially discharged from parole.  We conclude the evidentiary record below establishes that blanket enforcement of Jessica's Law's mandatory residency restrictions against registered sex offenders on parole in San Diego County impedes those basic, albeit limited, constitutional rights. Furthermore, section 3003.5(b), as applied and enforced in that county, cannot survive rational basis scrutiny because it has hampered efforts to monitor, supervise, and rehabilitate such parolees in the interests of public safety, and as such, bears no rational relationship to advancing the state's legitimate goal of protecting children from sexual predators.

March 2, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

AG Holder provides Congress a sentencing reform to-do list

This new Politico story indicates that a confirmation vote for Loretta Lynch to replace Eric Holder as Attorney General may still be week away. But AG Holder is still in the midst of some parting shots as he prepares to leave his position, and this Washington Post commentary finds the AG making a full-throated pitch for more congressional sentencing reforms.  Here are excerpts from a piece headlined "Time to tackle unfinished business in criminal justice reform":

Today, a rare consensus has emerged in favor of reforming our federal drug sentencing laws.  This presents a historic opportunity to improve the fairness of our criminal justice system.  But unless we act quickly, we risk letting the moment pass.

The Justice Department has sought to be an early innovator on this front.  A year and a half ago, I launched the Smart on Crime initiative — a comprehensive effort to reorient the federal government’s approach to criminal justice....  Preliminary results from this effort are extremely encouraging....

Last year also witnessed the first overall reduction in the federal prison population in 32 years.  Most impressive of all, we achieved this drop in incarceration at the same time we cut the crime rate, marking the first simultaneous reduction in both crime and incarceration rates in more than four decades.

But while it is indisputable that we are moving in the right direction, there is a limit to what the Justice Department can accomplish on its own.  Moving forward, we need to build upon, and make permanent, these gains through action in Congress.... [A] few specific items of unfinished business should command our immediate attention.

First, although Obama signed the Fair Sentencing Act to eliminate a discriminatory 100-to-1 sentencing disparity between crack and powder cocaine, thousands of individuals who committed crimes before 2010 are still serving sentences based on the old ratio. This is unfair.  Congress should pass legislation to apply that statute retroactively so that no one is sitting in prison serving a sentence that Congress, the president and the attorney general have all declared unjust.

Second, while the Justice Department has declined to seek harsh mandatory minimum sentences in cases where they are not warranted, we need to codify this approach. Congress should pass one of the multiple bipartisan bills aimed at restricting and refining those crimes to which mandatory minimums apply.

Third, in individual states, legislatures should eliminate statutes that prevent an estimated 5.8 million U.S. citizens from exercising their right to vote because of felony convictions.  These unfair restrictions only serve to impede the work of transitioning formerly incarcerated people back into society.

Finally, we should seek to expand the use of federal drug courts throughout the country for low-level drug offenses.  These programs provide proven alternatives to incarceration for men and women who are willing to do the hard work of recovery, and it is my hope that, in the next five years, there will be an operational drug court in every federal district — with individual states following suit.

While I will depart the Obama administration in the coming weeks — and my own formal career in law enforcement will soon draw to a close — I intend to continue this work, to promote this mission and to advance this cause.  And I hope that, in the days ahead, leaders in Congress and around the country will come together to help build the fairer, more efficient and more effective criminal justice system that all Americans deserve.

In this post over at The Volokh Conspiracy, titled "The President doesn’t need Congress’s help to fix unjust sentences," Will Baude properly notes that Prez Obama could take care of the first item on the AG's action list without any action by Congress.  As Will notes, the "Constitution gives the President 'Power to grant Reprieves and Pardons for Offences against the United States.' If the President indeed shares the Attorney General’s views, he can eliminate the thousands of unfair sentences at a few strokes of a pen."  Will speculates that "the President is unwilling to exercise his constitutional pardon power [this way] because he wants political cover if somebody who is pardoned later goes on to do something wrong." 

I am glad Will highlights the president could through commutations (or pardons) readily fix on his own problems and unfairness presented by the non-retroactivity of the Fair Sentencing Act.  Those problems persist because of President Obama's failure of resolve, not a failure of power, on this front.  In addition, I think the President could (and should) be using a lot more of his political time and energy trying to move Congress forward on other fronts as well (e.g., he could have, but failed to, talk at lengthy about these issues during his State of the Union address not long ago).

March 2, 2015 in Clemency and Pardons, Collateral consequences, Criminal Sentences Alternatives, Drug Offense Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Wednesday, February 25, 2015

More notable new posts from the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here notable posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogoshere). Here are a bunch of new posts from CCRC from recent weeks:

February 25, 2015 in Clemency and Pardons, Collateral consequences, Who Sentences? | Permalink | Comments (0) | TrackBack

Friday, February 20, 2015

More from ACSBlog's "symposium on racial inequalities in the criminal justice system"

Last week in this post I noted that the ACSBlog  kicked off a "two-week symposium on racial inequalities in the criminal justice system" via this post titled "Pervasive Inequalities in the Criminal Justice System."   This week brought these additional published posts in this series, al of which should be of special interest to sentencing law and policy fans:

February 20, 2015 in Collateral consequences, Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1) | TrackBack

Wednesday, February 04, 2015

Sign of the drug war times: risk-management review of state drug-law reforms

There are many diverse signs, and many diverse consequences, of our modern (retrenching?) drug war, especially with respect to state-level reform of marijuana prohibitions.  One such interesting sign and consequences arrived in my e-mail this morning via this link to this post by a risk management firm titled "Recap of Drug-Related State Legislation Passed in 2014." This helpful resource is introduced this way:

One trend that hiring managers should take note of in 2015 is the increased fragmentation of state drug test regulations.  Exactly half of all states passed legislation in 2014 that touches upon or completely regulates drug testing in some way or another.

With more and more attention being given to developments in medical and recreational marijuana laws, it may be hard to imagine that the United States is not trending away from drug testing in the workplace.  It is true that public opinion about certain controlled substances is shifting, but legislation is still being passed that creates provisions for drug testing employees, banning synthetic substances, and penalizing intoxicated motorists.

The diversity of laws and court decisions produced in 2014 is proof that the line between pro-employer and pro-employee is vague and becoming more difficult to draw-out.  As laws in some states provide new “rights” to individuals to consume intoxicating substances, other laws in those states as well as other places reinforce the rights of employers and citizens seeking to ensure safe workplaces and communities.

I am not, of course, an expert on labor and employment law. But this posting provides perhaps more evidence that labor and employment lawyers need to be experts on modern drug law reforms in order to serves their clients effective.

February 4, 2015 in Collateral consequences, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Wednesday, January 21, 2015

Should a court hearing be required anytime a registered sex offender seeks entry to a public school?

The question in the title of this post is prompted by this notable article from Virginia headlined "ACLU questions new sex offender bill." Here are the details:

Their faces and address are already public, now one Virginia lawmaker wants registered sex offenders to face public hearings before going inside schools.  To have access to Virginia public schools, House Bill 1366 would require violent sex offenders to pay for a newspaper ad publicizing a personal court hearing.  It would run once a week for two weeks. Then anyone could attend the hearing and testify against them.

The bills author, Delegate Jeff Campbell, says it’s about safety, but the ACLU says it crosses the line of civil rights.  “The public hearing is simply an invitation for an angry mob to gather at a school and get in the way of a parent’s right to be involved in the education of his or her child,” said ACLU of Virginia’s Executive Director Claire Gastanaga.

Gastanaga said there is no real proof that registries and restrictions like this keep kids safer. He said the most direct impact of the bill would be on parents with kids in school who want to go and meet with the kids’ teachers.

Delegate Campbell disagrees: “I disagree totally, what it does is it gives parents of the other children a say in who is around their children.”... “The public’s right to know who is around their children and to have a say in whether they agree in that or not trumps that individual’s right to free access to the school,” he said.

Currently, sex offenders must inform school superintendents before they go inside a Virginia school. Delegate Campbell said there was an incident last year in Wise County where a parent did that and got permission to attend sporting events, but then started showing up to school at other times. Parents got upset and that is the reason for his bill.

A subcommittee unanimously passed the bill on Monday, but there is no set date yet for it to go before the full committee.

Because Virginia's court system is surely already pretty crowded, the burden this bill will create for state court personnel strikes me as significant and notable. A bit of research revealed that there are about 20,000 registered sex offenders in Virginia. Even if only 10% of that group has good reason to go to a public school each year, the Virginia court system is going to have to handle 2000 more annual hearing to consider (and supervise?) any school visit.

January 21, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

Thursday, January 15, 2015

Notable new posts in the new year from the Collateral Consequences Resource Center

As regular readers know now, I am making a abit of noting here notable posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogoshere).  Here are a bunch of new posts from CCRC that caught my eye from the first few weeks of 2015:

January 15, 2015 in Collateral consequences | Permalink | Comments (0) | TrackBack