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The Adam Walsh fearmongering and bleeding money Act 2

Posted on February 10, 2010 by Gideon

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I have been in somewhat of a blog slumber. I haven’t posted in a while (and frankly, since Scott returned from his vacation, there’s no more opportunity for me to sneak in and steal his readers). But what better way to get the blood pumping and the vituperative juices returning than the news that our state Republicans and lame-duck Governor are once again introducing the Adam Walsh “burn them at the stake” Act.

I wouldn’t recommend clicking on that link. The Act is long and is sure to get your delicates in a delicate twist (unless you’re a terrorist, in which case, you win).

I’ve already written about one nonsensical aspect of this “Act” before: on the requirement that travelers through the State notify public safety of their impending passage.

There are several more that merit attention and derision, so I’ll list them first and then take them on one by one:

The Act creates a new “tiered” system of SORN (sex offender registration and notification), dividing defendants not on their chances of re-offending, or on the particular circumstances of their offenses, but simply on the offense of conviction itself: Tier A: 15 years, Tier B: 25 years, Tier C: life. Currently, in CT, there are only two “tiers”: 10 years and life. Risk assessment is simply not a factor in either equation and that’s a huge mistake.
The current risk of injury statute, the go-to statute for dubious allegations involving minors, would be revamped and broken up into three different statutes, each more onerous than the previous. Sexual contact with a minor under thirteen would become a Class A felony, thus lumping it together with the burglaries home invasions and murders and sexual contact with someone between thirteen and sixteen would become a Class B felony.
The rules for exemption from registration are putrid and hollow.
The registration requirements place a burden that is far greater than was approved by SCOTUS in Alaska and CT Dept. of Pub Safety (as distinguished by Maine’s Supreme Court): once a year for Tier 1, every 6 months for Tier 2 and every 3 months for Tier 3, all in person.
The requirements for “transients” are incredibly laughable and courts are taking notice of the fact that it is problematic to require homeless people to register and punish them for essentially not having a home.
The retroactive application of the registration requirements, which are already being successfully challenged.
The cost. Oh, the cost. It shall be staggering. It shall be wasteful. It shall be just what States need in this time of financial surplus.

The seventh point is the focus of this post, which is one more step toward a Big Brother/nanny state:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Sec. 8. (NEW) (Effective October 1, 2010) Any person who has reason to believe that a registrant is in violation of registration requirements and who, with intent to assist the registrant in eluding a law enforcement officer in the investigation or enforcement of such violation, (1) withholds information from, or does not notify, the law enforcement officer about the registrant’s noncompliance with such requirements and, if known, the whereabouts of the registrant, (2) harbors, or attempts to harbor, or assists another person in harboring or attempting to harbor, the registrant, (3) conceals or attempts to conceal, or assists another person in concealing or attempting to conceal, the registrant, (4) knowingly provides false information regarding the registrant, (5) obstructs or hinders the law enforcement officer in the performance of such officer’s official duties relative to the investigation or enforcement of such violation, or (6) falsely represents the registrant by signing address verification forms or other official documentation relative to the registration of sexual offenders, shall be guilty of a class D felony.

At first glance, the statute seems to be somewhat restricted in its application, proscribing active hindering or deception. But there is much potential for abuse here. For example, when is a “law enforcement officer in the investigation of such a violation”? Is it automatically assumed, that once a registration lapses on the 90th day or the 181st day, that an officer would begin to investigate the noncompliance?

And how is one to be held liable for not notifying, if one is unaware that an “active investigation” is underway? The word “notify” signifies an affirmative duty on the part of the individual with knowledge of non-compliance. So does this create a requirement and place a responsibility on all of us to notify law enforcement as soon as we become aware that someone we know is not in compliance? Are we being asked to spy and snitch on one another?

This statute ignores many of the realities surrounding sex offenders: an overwhelming percentage of offenders are known to their victims, are members of their family, etc. In a lot of cases, the people just want to move on, to try and reconcile, to forgive and forget. Especially after the defendant has served his sentence and been reunited with his family. Now this places the difficult choice in the hands of the family members or new loved ones: risk exposing the one you love to further incarceration or yourself to that same penalty.

Why can’t we keep policing to the police? And why is not snitching a crime only when it comes to sex offenders? Why not a bill that covers all crimes and failure to report information pertinent to a crime?

The AWA is a bloated piece of crap, which moves the state of our legislation in exactly the opposite direction of where it needs to go. It ignores the realities of recidivism, of risks and generally and spectacularly fails to recognize the individual circumstances that surround each offense and instead lumps people together into pseudo-homogenous categories where none apply.

But here, in the liberal Northeast’s southernmost state, it is de rigueur.

[For more, see this and Sex Crimes' AWA page.]

[The silly bill is No. 33. In order to counter the vicious hate directed at No. 33, I give you something beautiful: K 333.]

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Category Adam Walsh Act, ct legal news, ct state law, proposed legislation, sex offenders

Is a battle on sex offender registration brewing? 7

Posted on December 29, 2009 by Gideon

Silly sex offender registration laws have long been a bone that I’ve been itching to pick. If you asked me to list the ten worst decisions by SCOTUS in the last decade, Smith v. Doe and Dept’ of Public Safety v. Doe would make the top 5 of that list.

But I’ve always had the nagging feeling that both those decisions didn’t preclude future challenges to sex offender registration laws and their retroactive applications as violations of the Ex Post Facto clause. Now, we may just find out, because Maine’s Supreme Court has held that its sex offender registration law (SORNA) does violate the EPF.

The Maine decision is State v. Letalien, in which the defendant challenged the change in registration requirements from 15 years to lifetime and from change in address notifications to proactive 90 day reporting requirements. Interestingly, the ME court finds that the Federal and Maine Constitutions provide the same EPF protections and so the EPF violation is of the Federal Constitution.

Just like SCOTUS in Smith, the Letalien court concludes that SORNA is civil in nature and then engages in a discussion of the seven Mendoza-Martinez factors to determine if a statute that is intended to be civil will be found to be an ex post facto law. It will be so only if the “party challenging the statute provides ‘the clearest proof’ that ‘the statutory scheme [is] so punitive either in purpose or effect as to negate [the State’s] intention’ to deem it ‘civil.’” Kansas v. Hendricks. The factors are:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment—retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.

Comparing the conclusion reached by SCOTUS in Smith on the first factor to Maine’s SORNA law (and reality), the court finds that SORNA is indeed punitive in nature because it imposes an affirmative disability:

These provisions, which require lifetime registrants, under threat of prosecution, to physically appear at their local law enforcement agencies within five days of receiving a notice by mail, place substantial restrictions on the movements of lifetime registrants and may work an “impractical impediment that amounts to an affirmative disability”.

Here, however, quarterly, in-person verification of identity and location of home, school, and employment at a local police station, including fingerprinting and the submission of a photograph, for the remainder of one’s life, is undoubtedly a form of significant supervision by the state. In this respect, SORNA of 1999 imposes a disability or restraint that is neither minor nor indirect.

The court then evaluates the other factors, finding some to be in favor of the state, some neutral and some in favor of the defendant. But viewing them as a whole, the court cannot escape the conclusion that enhancing a defendants registration requirements which were imposed as part of a sentence before the change in the law necessarily violates the EPF clause.

There is no dissent, but there is a concurrence by one Judge who would have gone further than the majority. He cites an Indiana Supreme Court decision, Wallace v. State (2009), which also held that the retroactive application of SORNA to a defendant sentenced prior to the enactment of any registration requirements violated the EPF clause of the Indiana Constitution. The Wallace court concluded:

In summary, of the seven factors identified by Mendoza-Martinez as relevant to the inquiry of whether a statute has a punitive effect despite legislative intent that the statute be regulatory and non-punitive, only one factor in our view— advancing a non-punitive interest—points clearly in favor of treating the effects of the Act as non-punitive. The remaining factors, particularly the factor of excessiveness, point in the other direction.

So now we have two 2009 decisions holding that the retroactive application of SORNAs violates the EPF clause of the Federal constitution and a State constitution with identical language. This seemingly goes against SCOTUS’ holding in Smith, but I think that opinion was wrong and was very narrowly tailored. Will they revisit it? I’d love them to.

I wonder how such a challenge would play out in Connecticut. In the currently existing jurisprudential landscape, the prospects seem dim. Our Appellate Court has seemingly characterized Megan’s Law requirements as “collateral”, thus rejecting the notion that a defendant needed to be advised of the registration requirement at the time of plea and sentencing and the Supreme Court has held that Megan’s Law in CT is not punitive in nature at all. [Google Scholar doesn't seem to have a link to that decision, so the link is to a later decision that discusses and expands on the same ideas.] That Supreme Court decision, however, was in 2001 and since then there have been new versions of Megan’s Law here in CT. I think the time might be ripe for an all out assault on this piece of legislation.

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Tags: ex post facto registration retroactive
Category Adam Walsh Act, ct state law, dumb laws, sex offenders

AWAinCT: We dun’t want yer kind ’round ‘ere 5

Posted on March 29, 2009 by Gideon

One of the more disturbing provisions being considered by the Lege in adopting the Adam Walsh Act here in Connecticut (and this provisions mirrors one in the actual AWA, I’m told) requires…well read it for yourself:

(d) Any person who is a registered sexual offender under the laws of any other state who enters this state and fails to notify the Commissioner of Public Safety in writing not less than forty-eight hours prior to entering the state of the information required under this section or falsely reports such information shall be guilty of a class D felony.

Oh yes. There is nothing missing from that sentence. If you were looking (and correctly so) for a qualifying clause in that language that required an individual to establish a residence here before being subject to “registration” you didn’t find it because it’s not there. It’s in the proposed subsection (c).

Subsection (d), that I just quoted above, mandates that anyone entering the State, for whatever reason, notify Public Safety 48 hours in advance. This is so silly it’s scary. There are no exceptions for emergencies or unplanned trips or anything. At all.

So if you’re required to register in CA, and are driving through from Yankee Stadium to Fenway Park to see the Yankees sweep the Red Sox and you take I-95 or the Merritt or I-91 or I-84 (all of which pass through Connecticut), you have to call public safety.

If you’re travelling only in NY and the highway you’re on has been shut down due to a nuclear spill and mutants are running wild and you have to divert through CT briefly to avoid becoming a mutant yourself, you have just committed a felony.

In fact, an argument can be made that if you’re flying from NY to CA and the plane makes an emergency landing at Bradley international airport in Windsor Locks, you have just committed a felony.

The rationale, as I understand it, is that the previous “undue delay” requirement wasn’t enough

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

and many sex offenders were slipping through the cracks, being found 6-9 months later. Okay, I understand that keeping tabs on sex offenders who move from state to state is difficult. But let’s parse this new provision for a moment and compare it to the currently existing law.

The current law states that anyone moving to CT, who is convicted of a crime whose essential elements are the same as any crime in CT that requires registration, or who is required to register elsewhere, shall without undue delay, register with public safety.

The questions there are: what is undue delay and what does reside mean?

Under the new statute, not only is the fellow who moves to CT subject to registration, but also the fellow who passes through.

Remember, though, that all this does is add an extra charge of failure to register! If, under the previous scheme, someone came to CT just long enough to commit a crime, CT would still have jurisdiction over him for the damn crime that he just f*cking committed!!!

So how, in [insert name of your higher power]’s name, does this prevent anything? State troopers are not border patrol agents. No, what this does, and I guarantee this will happen, is that it provides police officers a “pretext” to pull over drivers with out of state licenses. They’ll run some check to see if they’re registered elsewhere and if they are, BAM!, arrested for a Class D felony.

And who is to be the arbiter of reason here? Are these folks to be left to the devices of our prosecutors and judges?

We are now burdening the sex offender, who has registered dutifully in his home state, with the requirement that he register in every state that he passes through, even though that transit may be wholly legal.

Yes, we do not want sex offenders to successfully reintegrate into society. Yes, we want to harass and poke and needle and annoy and insult them. Yes, we want to make things worse. Yes, we are thinking with our rears.

Folks. The message is clear. Don’t come to CT. If you’re a sex offender, your money is no good, despite the fact that we’re facing a budget deficit in the billions.

Ugh.

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Category Adam Walsh Act, ct legal news, ct state law, proposed legislation, sex offenders

The Adam Walsh Act is coming to Connecticut 0

Posted on March 26, 2009 by Gideon

I only just realized that there’s a bill currently in the legislature implementing the Adam Walsh Act. Folks, this is some nasty, scary shit. For the first time in my life, I think I might be moved enough to call my legislator to oppose this. I will have plenty of posts on the AWA in the coming days, but for now, here’s the bill.