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February 2, 2010
"A Law for the Sex Offenders Under a Miami Bridge"
The title of this post is the headline of this new piece in Time magazine, which discusses broadly the issue of sex offender residency restrictions. Here are excerpts:
The Julia Tuttle Causeway is one of Miami's most beautiful bridge spans, connecting the city to Miami Beach through palm-tree-filled islands fringed with red mangroves. But beneath the tranquil expanse sits one of South Florida's most contentious social problems: a large colony of convicted sex offenders, thrown into homelessness in recent years by draconian residency restrictions that leave them scant available or affordable housing....
Miami is hardly the only place in the U.S. where registered sex offenders can't find shelter. In Georgia, a group living in tents in the woods near Atlanta was recently ordered out of even that refuge. But the Miami shantytown, with as many as 70 residents, is the largest of its kind, thanks to a frenzied wave of local laws passed in Florida after the grisly 2005 rape and murder of 9-year-old Jessica Lunsford by a convicted sex offender....
But with the disturbing bridge colony putting Miami under increased national scrutiny — it has managed the improbable feat of arousing sympathy for pedophiles — Miami-Dade County hopes to return some sanity to the issue. A new law takes effect on Monday that supersedes the county's 24 municipal ordinances, many of which make it all but impossible for offenders to find housing. It keeps the 2,500-feet restriction, but applies it only to schools. It also sets a 300-foot restriction to keep offenders from loitering near anyplace where children gather, which many experts call a more practical solution than harsh residency restrictions.
County officials, as well as the American Civil Liberties Union, hope the law will prod states and perhaps even the U.S. Congress to craft more-uniform laws to prevent the kind of residency-restriction arms race that Florida let local governments wage. "The safety of Floridians has suffered as local politicians have tried to one-up each other with policies that have resulted in colonies of homeless sex offenders left to roam our streets," says state senator Dave Aronberg, a Democrat running for state attorney general. The excessive rules, he adds, "have the effect of driving offenders underground and off law enforcement's radar."...
Ironically, it was one of residency restrictions' fiercest proponents who helped push the softer Miami-Dade law through the county commission. Ron Book, a powerful Florida lobbyist, began his crusade for tougher residency laws after discovering that his daughter was molested by a nanny for years. Now, realizing that homelessness makes offenders potentially more dangerous, Book has shifted his campaign to the kind of child-safety, no-loitering zones that are built into the Miami-Dade measure. "Child-safety zones [should] have been a critical component of what we did [before]," says Book. "We just didn't think of them."...
Research by agencies like the Minnesota Department of Corrections has found that a stable home is the strongest guarantor of sound post-incarceration behavior among sex offenders. What's more, Jill Levenson, an expert on sex offenders, says the no-loitering zones are more effective than unreasonable residency restrictions aimed at keeping predators away from kids.
February 2, 2010 at 10:02 AM | Permalink
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I'll bet that the new, "smarter" and "more humane" restrictions will be attacked by the same groups that attacked the old ones, and that the attack will come promptly after the new ones take effect.
Any takers?
Posted by: Bill Otis | Feb 2, 2010 7:37:16 PM
One would hope. "So now we are only going to violate your constitutional rights a little bit less" should be hunky-dory?
Posted by: Mark # 1 | Feb 3, 2010 11:01:06 AM
Bill Otis,
Is it illogical to argue respect for the law should rise above the plain error standard? True, there are conflicting interests: 1) public safety as urged by the people (sometimes a "public outcry" of a few people), and 2) respect as applied to defendants. This respect is not related to "Ouch, this sentence hurts too much so I don't respect it." No, a defendant can get a very stiff sentence (even the death penalty) and still respect that the government played by the rules (assuming an understanding of the rules enough to know it was fair).
It is difficult to say when disrespect for the law became in vogue. Maybe it was with the crack/powder disparity (false premises and either ignorance or outright lies, so should ignorance of the facts be an excuse in lawmaking?) Or maybe it really got going with California's three strikes law, where too often defendants waived their rights and pled guilty on the first or second strike (or both) pre-3 Strikes even though the government could not prove its case back then. In other words, there is a severe penalty for taking responsibility way back when and saving the government the expense of a trial. We would not stand for those kinds of changes in any other contracts without fair notice at the time.
But what about the voters? Is "respect for the law" as a sentencing requirement limited to voters? Should respect for the law apply equally to everyone involved? In other words, is it necessary and proper that any law should promote respect for the law only for the majority, everyone else be damned? TalkLeft pointed out President Obama said in the SOTU address that the law should protect law abiding citizens. Of course it should, but is that what we've come to? The White House also says "KSM Will Be Tried, Convicted, and Executed." And what of lawmakers that pass laws in response to crimes before the alleged criminals inspiring the law were convicted? Doesn't anyone in government believe in due process and the presumption of innocence anymore? I missed the constitutional convention amending the Bill of Rights. It used to be respect for the law was more important the more heinous the crime and the more severe the punishment, not how how much sympathy we have (and where is the word sympathy in the Constitution?) Hence the due process differences between infractions and felonies and between felonies and death.
I've not seen any opinion that addresses if a law or sentence should be overturned because it promotes disrespect for the law. Maybe no one raised it or maybe I missed it. Maybe it is too broad a question to raise. Could the SCOTUS overturn a law based on false premises because false premises promote disrespect for the law? How could the SCOTUS draft a bright line or even a dim line? It is a significant, even urgent, question that possibly goes to the heart of the "tyranny of the majority" that our Founders warned against. On the other hand, the tyranny of the majority is, by definition, very popular and may be too powerful to question. It may be too late, but the pendulum does seem to be swinging a little. The irony is that many in the majority are starting to disrespect some laws, like those mentioned in the article. Some could argue that just means the system is working, like all the work the Innocence Project does proves the system is working, but it's more like building a new damn after the old one collapsed.
The short question is this: do the states as experimental laboratories have the right to pass laws that promote disrespect for the law? The words "respect for the law" are not in the Constitution any more than the word "sympathy" is, but we do know our Founders did not support the tyranny of the majority because the tyranny of the majority disrespect the Bill of Rights of individuals.
Posted by: Bill | Feb 3, 2010 12:13:02 PM
"Child-safety zones [should] have been a critical component of what we did [before]," says Book. "We just didn't think of them."
Malice does that to a man; interferes with one's thinking I mean.
Posted by: Daniel | Feb 3, 2010 12:55:10 PM
What I find somewhat disturbing about the article is that it buys into the often-misleading rhetoric of the sex offender restriction proponents. The article refers to sex offenders collectively as "pedophiles," despite that a large number of them are not pedophiles, i.e., they were convicted of sex offenses against people who were not children.
I think I've said before, given the high recidivism of child sex offenders, I'm not nearly as concerned about reasonable sex offender restrictions for them (the old Miami-Dade patchwork of laws defintely went too far). But the recidivism of sex offenders generally is only about 4% according to the DOJ. To have a truly informed discussion about what sex offender laws are required, we should be careful not to lump every sex offender into the same category.
Posted by: Res ipsa | Feb 3, 2010 1:41:48 PM
Bill --
People will have different views of which laws merit respect. There is no such thing as a law that will garner everyone's respect. The task, then is to decide whose respect shall be most valued.
In a democracy, that's an easy question: the majority's. This talk about the tryanny of the majority shrewdly omits any discussion of the alternative, that being the tyranny of the minority. We had that once. It was called "King George." We've gotten past that, thank goodness.
If the cat burglar "disrespects" his sentence of 25 years as irrationally excessive, so be it. I might evfen agree with him. But I am not the legislature and neither is he. I'm not all that interested in whether the guy who breaks into my house proclaims his respect, or disrespect, for the law. I am very interested that he be dealt with sufficiently sternly so that he will conclude that it's wise to change his behavior.
Cat burglars and other miscreants have no particular standing to be sniffing at the rest of us that they "repect" this law but "disrespect" this other one. The respect a decent society takes care to court is that of the majority who obey the rules. The self-interested and phony moral preening of crooks and cheaters is of little interest to them, or me.
Posted by: Bill Otis | Feb 3, 2010 6:34:30 PM
Mark # 1 --
What language in the Constitution provides that a person can live wherever he wants?
Local governments have for years regulated residential useage in all manner of ways. The notion that they cannot for sex offenders is preposterous.
Posted by: Bill Otis | Feb 3, 2010 6:39:27 PM
If the no loitering law was in effect this weekend at the Superbowl would Peter Townsend from the Who have to jump on the bus directly after his performance and go hang out under the bridge until his plane was ready to take off? Well maybe not a bus--there might be kids there. A cab.
Posted by: mpb | Feb 3, 2010 8:07:55 PM
I am disgusted that someone who ostensibly used to be employed by the federal governmental unit that purports to seek justice can neatly overlook the constitutional provisions which safeguard ALL Americans from double jeopardy, ex post facto, and unlawful taking. When you feel all smug about trashing the de jure boogyman's constitutional rights, you might want to consider whose rights are next in line. But punishing your fellow man feels so good, doesn't it?
Posted by: Mark # 1 | Feb 3, 2010 9:53:32 PM
Mr. Bill, your argument is as weak as Glen Beck's moral preening. Let's take a step at a time.
People will have different views of which laws merit respect. There is no such thing as a law that will garner everyone's respect. The task, then is to decide whose respect shall be most valued.
Are you saying due process is at the mercy of the people because someone has to decide and that is always, by definition, the majority? Under your theory, the SCOTUS could never overturn any law that was popular.
In a democracy, that's an easy question: the majority's. This talk about the tryanny of the majority shrewdly omits any discussion of the alternative, that being the tyranny of the minority. We had that once. It was called "King George." We've gotten past that, thank goodness.
This argument shrewdly sets up another straw man, Mr. Bill's expertise. Either we have unquestioned majority rule or we have "King George."
"...an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.... ...there are particular moments in public affairs when the people, stimulated by some irregular passion or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next." (Federalist Paper 63)
And that is exactly what happened in the news story. "We just didn't think of them [those other logical laws]."...
If the cat burglar "disrespects" his sentence of 25 years as irrationally excessive, so be it. I might evfen agree with him. But I am not the legislature and neither is he.
This argument was excluded from the debate. It is irrelevant what the sentence is. You do understand the difference between due process and the perception of fairness as distinct from the sentence, I'm sure.
I'm not all that interested in whether the guy who breaks into my house proclaims his respect, or disrespect, for the law. I am very interested that he be dealt with sufficiently sternly so that he will conclude that it's wise to change his behavior.
Here, you try a circular argument. He disrespected the law by breaking it and therefore we don't have to respect the law (that due process stuff again) because he disrespected the law. Such is the stuff propagandist laws are made of.
Cat burglars and other miscreants have no particular standing to be sniffing at the rest of us that they "repect" this law but "disrespect" this other one.
Under your theory, no one would have have standing to appeal anything because cat burglars should not have any of those rights anyway. How is that working out for you?
The respect a decent society takes care to court is that of the majority who obey the rules. The self-interested and phony moral preening of crooks and cheaters is of little interest to them, or me.
Believe it or not, some people like the Bill of Rights, they like due process and they like the laws to be rational and worthy of respect. In fact, I'd be so daring as to say the majority do. They just didn't know some laws they supported were founded on false premises. If you don't think so, then explain why Ron Brooks changed his mind.
You didn't answer the ultimate question: Could the SCOTUS overturn a law based on false premises because false premises promote disrespect for the law?
Posted by: George | Feb 3, 2010 10:05:52 PM
Mark # 1 --
"But punishing your fellow man feels so good, doesn't it?"
You know, on reconsideration, you're right. There shouldn't be any punishment since, as you have made clear, only sadists become AUSA's. Furthermore, there shouldn't be any punishment because NOBODY'S GUILTY!!! Why didn't I figure that out long ago, like you did?
But if perchance someone IS guilty, like for example these perverts and rapists you're swooning over, do you think punishment might be in order?
That's a question, Marky. Do you think there should be punishment for sex crimes? Yes or no.
If your answer is no, then fine, we have a good idea where you're coming from.
If your answer is yes, there should be punishment, then should I ask you, as you ask me, "punishing your fellow man feels so good, doesn't it?"
While you're at it, you can answer the prior question you pretend not to have seen. It was: What language in the Constitution provides that a person can live wherever he wants?
If you could climb down from your high-horse moralizing for a minute (a big if, I know), you might understand that no law requires you to recycle EVERY left-wing platitude out there. You might consider recycling only every OTHER left-wing platitude.
Posted by: Bill Otis | Feb 4, 2010 11:37:26 AM
Dr. George --
You're a fun guy, you really are. I had friends like you in law school. I think they all went off to make more dough than I ever did. Maybe you do too. If so, more power to you.
A few points:
-- The Due Process Clause exists only because a MAJORITY of the drafters put it in there. Ain't that somethin'?
-- The Supreme Court itself operates by majority rule. The four in dissent just have to cool it, no matter how convinced they are that they're right about what the Constitution demands.
-- "It is irrelevant what the sentence is. You do understand the difference between due process and the perception of fairness as distinct from the sentence, I'm sure."
And you understand that the criminal's claim about distinguishing between the sentence and the process is often, if not virtually always, complete baloney, I'm sure.
And apart from the utterly obvious bias and self-interest that a defendant brings to the evaluation of his sentence, do you really think a guy whose sense of fairness led him to break into your house to steal your stuff is suddenly going to make a cool-headed and adroit evaluation of the sentencing process?
I suppose it's possible. In an alternate universe.
-- "Believe it or not, some people like the Bill of Rights, they like due process and they like the laws to be rational and worthy of respect."
When a thief believes (even if it were sincerely) that laws against theft are irrational and not worthy of respect (say, because capitalism produces unjust outcomes and he was wrongfully deprived of his fair share), I could care less. My fairness and society's fairness is not up for judgment by the guy who just broke into my house to make off with my TV. He has no standing to judge it, and even if he did, his "moral system" is so screwed up that any judgment wouldn't be worth the paper he stole to write it on.
-- "You didn't answer the ultimate question: Could the SCOTUS overturn a law based on false premises because false premises promote disrespect for the law?"
The question is too general and diffuse for me to answer as put. Give me a specific example.
Posted by: Bill Otis | Feb 4, 2010 12:14:05 PM
Another red herring from our torture cheerleader (just ask him). The story dealt with persons who have already paid their debt to society for offenses committed in the past. The current hysteria seeks to punish them again--which so obviously appeals to a certain type of individual--and "living where they want to" is not the issue; the issue here is the Constitution protects ALL Americans--even those someone like you would deem unworthy--from ex post facto, double jeopardy and governmental takings without just compensation. Read it; at one time you ostensibly mouthed the words to uphold it.
Posted by: Mark | Feb 4, 2010 12:43:38 PM
Marky --
Sounds like we're having a bad day. Time for a timeout?
Do you adopt this holier-than-thou tone with everyone or just with those who would prefer to know about the plans for the next terrorist attack in time to maybe do something about it?
For the third time, what language in the Constitution provides that a person can live wherever he wants?
You think you're so superior to those of us who worked in US Attorneys Offices. And maybe you are. But you don't provide much way to know, now do you, since you throw your brickbats from behind the curtain on anonymity.
A true profile in courage, that.
Posted by: Bill Otis | Feb 4, 2010 1:28:25 PM
hey bill since your the hi and mighty lawywer you want to explain why since this is in the ORIGINAL decison that made the registry and all it's little add-on's legal....anything passed in the last decade restricting their movements and homes can possibly be LEGAL! on it's face!
http://www.law.cornell.edu/supct/html/01-729.ZS.html
"The fact that Alaska posts offender information on the Internet does not alter this conclusion. Second, the Act does not subject respondents to an affirmative disability or restraint. It imposes no physical restraint, and so does not resemble imprisonment, the paradigmatic affirmative disability or restraint. Hudson, 522 U.S., at 104. Moreover, its obligations are less harsh than the sanctions of occupational debarment, which the Court has held to be nonpunitive. See, e.g., ibid. Contrary to the Ninth Circuit’s assertion, the record contains no evidence that the Act has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred. Also unavailing is that court’s assertion that the periodic update requirement imposed an affirmative disability. The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision."
NOTICE this part especially!
"The Act, on its face, does not require these updates to be made in person. The holding that the registration system is parallel to probation or supervised release is rejected because, in contrast to probationers and supervised releasees, offenders subject to the Act are free to move where they wish and to live and work as other citizens, with no supervision."
This part would indicate to anyone with 1/2 a brain that ANY law that goes against it is in FACT ILLEGAL.
IN FACT what we have now is an illegal system of LIFETIME PAROLE without benefit of even a hearing or a new charge.
Just ask the 1,000's of people in ohio then went from NOTHING no registry NO restrictions. NO NOTHING to suddenly with a receipt of a letter to it all including for most of them being REBOOKED at the local sheriff's departmetn every 90 days THE REST OF THEIR LIFE!
sorry it's so illegal it could and should be considered A CRIMINAL VIOLATION of their OATH OF OFFICE and possible TREASON
Posted by: rodsmith3510 | Feb 4, 2010 2:25:43 PM
Bill: "The question is too general and diffuse for me to answer as put. Give me a specific example."
Buck v Bell (1927), probably the most flagrant deception before the SCOTUS. Let's say Vivian, the 3rd "imbecile" in "three generations of imbeciles are enough," grows up to be a lawyer. She petitions for the SCOTUS to overturn itself. She concedes she has no standing because she was not sterilized herself and she conceeds that even if she did have standing in defense of her mother who was sterilized it is moot because the sterilization is complete.
So she argues that as a citezen she has to right to rational laws because irrational laws promote disrespect for the law. She argues that the Virgina sterilzation law was based on biased propaganda and should be overturned because the basis for it was false.
The other side argues that under the free speech clause, the law is valid because it went through the democratic process and the majority of the people, through its legislature, approved, so the science and rhetoric of the law is irrelevant.
Both parties agree that propaganda and rehtoric are permisslbe on free speech grounds.
The SCOTUS limits the issue strictly to one question: will the false premises of Buck v Bell ultimately lead to disrespect for the sterilization law or law in general and should it therefore be overturned now (about 1940 or so, just because it took Vivian that long to get her law degree).
Posted by: George | Feb 4, 2010 2:36:21 PM
Correction. So she argues that as a citizen she has the right to rational laws because irrational laws promote disrespect for the law.
Posted by: George | Feb 4, 2010 2:49:59 PM
For the sake of clarity, Vivian died while still a young child, but in this hypothetical she does not.
For anyone who wonders how this question should be answered as a matter of good public policy, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell (Hardcover).
From Publishers Weekly
"Starred Review. Law professor and historian Lombardo does a superb job of revealing, for the first time, all the facts in the infamous Buck v. Bell case of the 1920s, the Supreme Court decision ratifying Virginia's compulsory sterilization of feebleminded people. In the majority decision, Chief Justice Oliver Wendell Holmes Jr. called the plaintiffs manifestly unfit both mentally and morally, and insisted that three generations of imbeciles are enough. This decision—which has never been overturned—led to tens of thousands of involuntary sterilizations. Lombardo interviewed the last survivor of the three Buck women who were plaintiffs; turned up indisputable evidence that there was no feeblemindedness in that family; unearthed previously unknown correspondence of Carrie Buck's attorney, who, believing the law to be necessary, mounted a deliberately insufficient defense; and documented the private family tragedy (an incestuous rape and resulting pregnancy) that lay behind the Bucks' encounter with doctors bent on exploring eugenics. His book is a testament to injustice and to ignorance—not that of the Buck women, but rather of powerful doctors, attorneys and Supreme Court justices. 17 b&w photos. (Oct.)"
From Booklist
"A 1927 U.S. Supreme Court ruling, Buck v. Bell, approved laws allowing states to sterilize the “feebleminded” to keep them from having children. The case involved Carrie Buck, whose mother and daughter—like Carrie—had been adjudged “feebleminded.” At a time of growing debate about the practice of eugenics, feebleminded was a label freely and frequently given to prostitutes, illegitimate children, and epileptics, as well as the mentally deficient. For a period, Carrie and her mother were both residents of the Colony, a facility that practiced the segregation and sterilization policies prevalent at the time. Supreme Court Justice Oliver Wendell Holmes Jr., in writing the decision, declared that “three generations of imbeciles are enough.” The decision set in motion more than 60,000 sterilizations. Law professor Lombardo draws on 25 years of research, including interviews with Buck before she died, her medical and school records, correspondence with her attorneys, and other documents to support the claim that the case was a fraud against a poor girl who had been raped. An engrossing look at a shameful case. --Vanessa Bush"
Posted by: George | Feb 4, 2010 4:36:12 PM
Well gads, George, if a court -- the SCOTUS or any other -- has been bamboozled by fraudulent evidence, it should vacate its decision, and order the lower court to start over with without the dishonest material.
Posted by: Bill Otis | Feb 4, 2010 4:48:20 PM
Correction to that. I need to proofread more carefully. It should say:
"Well gads, George, if a court -- the SCOTUS or any other -- has been bamboozled by fraudulent evidence, it should vacate its decision, and order the lower court to start over without the dishonest material."
Posted by: Bill Otis | Feb 4, 2010 4:52:11 PM
works for me! guess that means that the fed's "state's secrets" law is gone! since it was BASED ON A LIE!
Posted by: rodsmith3510 | Feb 5, 2010 2:27:10 AM
and i noticed that you ignored the question i asked! What happened SUDDENLY your fingers won't hit the keys! LOL
that's ok i know why. YOU CAN'T ANSWER IT!
at least not with a straight face!
Posted by: rodsmith3510 | Feb 5, 2010 2:28:31 AM
So what now, Mr. Bill? Carrie Buck's greatest crime was probably trusting the system too much. She was gullible rather than feebleminded. Harry Laughlin of the Eugenic Record Office submitted evidence of Carrie's feeblemindedness and drafted the model code.
Yet, Buck v Bell is still good law. So we are back to the original question. When the lawmaking process fails to live up to Federalist Paper 63, who besides the courts can intervene?
Should a concerned citizen have standing to ask the SCOTUS to overturn itself because its ruling was founded on false premises? Can there be a rational basis for laws based on false premises? Does the state have a compelling interest in irrational laws? How would the court weigh which premises are rational and which are not, and at what point does the irrationality weigh enough to overturn the law? What about federalism? Do states have the right to pass irrational laws founded on false premises?
We can anticipate one of the Court's first questions: wouldn't this open the floodgates? Would the filer of frivolous petitions having to pay costs be enough deterrent to weed out the frivolous?
Posted by: George | Feb 5, 2010 12:38:29 PM
