a public defender

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

It’s that time of year – when the legislature’s committees are done discussing, when one party has successfully blocked discussion and vote on other bills and the few stragglers that made it through leave behind a myriad of bills that died on the floor. Some of these bills are truly dead, some have a whisper of a chance – either for this year as add-ons to bills that made it through, or next year, because they’re persistent little sobs.

So, in honor of Good Friday (no, not really, don’t get mad at me and leave a 1000 comments), here are three Good Bills that died this year in committee, and two “it’s Good these Bills died in committee”:

Title Bout: Ohio v. USA

Sex offender hysteria is well documented. Apparently, the Federal Government is also not immune from its mind altering effects. Consider the case of John Doe in Ohio. John Doe, convicted in 1993 of sexual battery in state court, is currently on Federal probation for unrelated drug offenses.

A zealous probation officer must’ve looked at Doe’s criminal record and noticed the sex offense conviction. So, the probation officer required Doe to register as a sex offender in Ohio. Only one problem: Ohio state law exempts Doe from registering.

And thus, the tug-of-war between the Federal Government and the State of Ohio begins. Whose requirements prevail? Or will it all be disregarded because the object of this “war” is to get a heinous, evil, dangerous, disgusting, despicable sex offender to register his whereabouts? Some counties in Ohio have had the testicular fortitude to tell the Feds to stick it, but unfortunately not the county in which Doe resides.

13 months ago, almost to the very date, State Rep. and co-chair of the Judiciary Committee Mike Lawlor gave an interview in which he touted the need for sensible reforms to the sex offender registry. I was buoyed by it and a little hopeful. After all, who can not see the benefits of a tiered sex offender registry? Still, back then, I noted some suspicion, given the political climate, that such changes would ever come to fruition.

So, it was with a sense of deja vu that I read this editorial in the Courant last week from Mike Lawlor, entitled “Sex Offender Registry Riddled With Flaws”.

Sex offender probation again. It doesn’t stop bothering me and it shouldn’t stop bothering you either.

One of the standard conditions of sex offender probation is the requirement that the probationer not go within 1-2,000 feet of a park, school, playground, library, etc (the so-called “residency restrictions“).

Connecticut does not have statewide residency restrictions and only three towns have enacted ordinances with penalties consisting of only fines.

Instead, in CT, you will see a standard condition of probation for sex offenders that is essentially a residency and work restriction. However, it is not worded quite as strictly as the residency restrictions and thus, in my opinion, is rather vague.

The standard condition reads something like this: “Probationer shall not go to any park, playground, school, [etc..] or any other place that is regularly frequented by minors under the age of sixteen.”

It’s that last bit that is especially problematic, because, in essence, any place could be a place frequented by minors under the age of sixteen. Take the movie theater, for instance.

The problem arises with actually proving a violation of the condition and whether a movie theater is a place that is regularly frequented by minors under the age of sixteen.

It seems to me that “frequently” the State proceeds to VOP hearings with the assumption that a movie theater is a place regularly frequented by minors and this assumption is rarely, if ever, effectively challenged by the defendant.

Several questions immediately spring to mind: What is regularly and whose regularly is it? Does it mean that the majority of patrons at a particular location are teens? Or do a particular set of teens (say the teens in that particular town) regularly go there? And what is “regularly”? 4 days a week? 51% of the patrons?

In addition, how does one really know that the teens who “frequent” that place are under the age of sixteen? No movie theater I know of checks ID and keeps a record of the age of each patron. No movie theater compiles these statistics. So how does one really know?

As anyone who has been outside in the last 15 years can attest (at least anecdotally), a 15 year old girl doesn’t look 15 anymore and there may be scientific evidence to back this up. There are even courses being taught about this general idea. So a girl that one may assume is 19 is actually 15. Indeed, some of our clients wouldn’t be in the messes they’re in if there was a sure-fire way of telling a girl’s age just by looking at her.

Keeping on with the movie theater example, does it matter if a majority of the patrons are adults, but a majority of those present are minors? Movie theaters are well known to be hang-outs for teens, but do they count?

Further, what’s the timeframe? Is it historical or within the last year or month or week or simply on the day that the defendant decided to go watch a movie?

These conditions are so vague, that I think a successful argument can be made that they do not provide adequate notice to a probationer that a non-enumerated place such as a movie theater is off-limits.

Shouldn’t the burden be on the State to actually prove that the movie theater is indeed a place which minors under the age of sixteen regularly frequent? And I mean prove by some sort of scientific evidence, not the eyeballing of an employee, not matter how long the employee has worked there.

In my opinion, such prosecutions must be zealously challenged and defended. Has anyone tried anything like this? Has anyone had any success? See any problems with my theories? How do you defend against these VOP hearings?

Remember David Pollitt? (Previous posts here, here, here and here.) After trying to block his move into their neighborhood, and failing, residents are now trying to get their money back. Literally. They’ve asked the town to reduce the property tax assessment of their homes by as much as 17%.

Carolyn Nadeau, president of the Connecticut Association of Assessing Officers, said the request may be the first of its kind in the state.

“I’ve never had an instance like this,” she said. “Any number of times there are distractions that people feel negatively impact their property values, such as unsightly blight, but we haven’t seen this.”

The company that revalued all properties in Southbury last fall rejected the residents’ plea for help. The new values took effect Oct. 1 and Pollitt didn’t move to the neighborhood until Oct. 12.

It’s tough. My initial reaction is to roll my eyes, but only because I was quite disgusted with the nonsense that went on the first time around. I can understand that their property values probably have taken a bit of a hit, and they’re trying to do something, anything about it. But they’re not the only ones. Residents throughout the state have to deal with this as sex offenders (and other offenders) move into their neighborhoods. What about your friendly neighborhood DUI repeat offender? I’d be worried about that kind of offender weaving around my street, drunk, knocking pedestrians off.

What will happen when other registries go online? Will it just suppress the housing market as a whole? While prices go down across the board? Or will people remember that ex-convicts have always lived amongst us and move on? What else can be done?

A few days ago, I noticed a story in the Boston Globe about residents in a New Hampshire town who rejoiced after successfully getting a sex offender to leave their community. It was of particular interest to me because that sex offender was from Connecticut and the story said he would be returning here.

So it came as no surprise when I saw this report today. It says that he is on the move – perhaps with a one-way ticket to prison.

This is really stupid and I think the “biggest waste of law enforcement funds this week” nominee. The offender, Douglas Simmons, was in compliance with registration requirements while he lived in CT. Then he decided to move to NH. So what does he do? He notifies the police in New Hampshire when he gets there. Not good enough, say the police. He has to inform police in Connecticut as well, that he is moving out of state.

This seems pointless to me. Either he is living in the state and in compliance or not living in the state and therefore shouldn’t have to comply. Some law enforcement agency knew of his whereabouts at the mandated interval. What difference does it make that it was New Hampshire law enforcement?  The NH police contacted CT to say “hey, one of your guys moved here”. Apparently, they’re not to be trusted.

The statute has has violated is C.G.S 54-252, which provides in relevant part:

If any person who is subject to registration under this section changes such person’s address, such person shall, without undue delay, notify the Commissioner of Public Safety in writing of the new address and, if the new address is in another state, such person shall also register with an appropriate agency in that state, provided that state has a registration requirement for such offenders.

I want to know what undue delay means and what the delay was in this case. Either way, the prosecutor handling this case should really look at this and see whether this needs to be prosecuted. I don’t think it does.

Now, his current whereabouts are unknown, because, you know, he was kicked out of his last town. Do you blame him? This is a guy who committed a pretty ugly offense. He served 22 years in jail for it (day for day, it seems). Then he gets out and has to register for life. Which he does dutifully. Then he decides to move. So thinking logically, he notifies the town he moves into. They freak out and kick him out. He leaves and moves back to his home state. Now he’s wanted by the police and will have to go back to jail for some bs violation. I’d be tempted to give the State the finger at that point. Wouldn’t you?

USA Today has two pieces covering the growing problem of sex offender homelessness due to strict residency restrictions and the real dangers posed by it.

Thousands of convicted sex offenders are reporting to police that they are homeless, raising concerns that their lack of a permanent address could make them difficult to track, a USA TODAY analysis shows.

Sex offenders, who are required to register with police and often barred by law from living near places where children gather, list addresses such as a tent, “near a bike path,” “behind a cemetery” or “woods behind Wal-Mart.”

Two-thirds of the states allow convicted sex offenders, including violent predators, to register as homeless or list a shelter or inexact location as long as they stay in touch with police.

At least a dozen states list hundreds of sex offenders without specific addresses. California registered 2,716 as “transient.” Washington state listed 564 as homeless, but the number is probably much higher, says Carolyn Sanchez of the Washington State Patrol.

Arkansas, Connecticut, Florida, Illinois, Maine and other states say the number of homeless sex offenders is rising. Landlords often won’t rent to them, and laws in dozens of states and hundreds of cities bar them from living near areas where kids play.

The primary cause of this homelessness is their inability to secure any sort of housing in cities and towns due to excessively strict residency restrictions. This creates public safety problems on two fronts: It makes it difficult for law enforcement to keep track of them and it increases the sense of isolation, frustration and loneliness felt by the homeless.

Residency restrictions in their current form have no visible impact on the reduction of crime and in fact, may well end up being counterproductive.

Sex Crimes also has this covered.

 (click on image for full size)

In my post last night about Danbury’s desire to expel all sex offenders from its shelter, a helpful readers points to this NYT article about a homeless sex offender in Georgia who could be facing life in prison for failing to register.

The offender, Larry W. Moore Jr. of Augusta, was convicted in North Carolina in 1994 of indecent liberty with a child, a felony. This week he was convicted for the second time of violating a requirement that he register. Under the new law, a second violation carries an automatic life sentence.

“We have suggested that it is cruel and unusual punishment as it relates to the facts of this case,” said Sam B. Sibley Jr., the state public defender in Augusta, whose office represents Mr. Moore and is planning an appeal on his behalf.

This increased penalty is in conjunction with some tough residency restrictions: 1,000 feet of not only schools and day care centers but also churches, swimming pools and school bus stops.

There is only one shelter in Georgia that accepts male sex offenders. One. Sex offenders that cannot find housing have to resort to all sorts of living accommodations.

In Florida, the state authorized five offenders to live under a bridge in Miami after they were unable to find suitable housing that they could afford. In Iowa, a victims’ group found that offenders tried to comply with the registry law by offering addresses like “rest area mile marker 149” or “RV in old Kmart parking lot.”

I had a client once who was charged with failure to register. He was living under a bridge. I half-joked at the time that he should send in the registration form with “Under Charter Oak Bridge” as his address. Guess some people are actually doing it.

Then you get quotes like this:

Homelessness is not an acceptable excuse. “One of the requirements when you become a sex offender is you have to have an address,” said Sgt. Ray Hardin of the Richmond County Sheriff’s Office in Augusta.

Sergeant Hardin said enforcement of the law required a dedicated investigator, a global positioning system and, each time an offender moves, hours of paperwork. At least 15 sex offenders have been arrested because of homelessness since the law took effect in July 2006, according to documents gathered through pretrial proceedings in a lawsuit brought by the Southern Center for Human Rights and the American Civil Liberties Union.

Perhaps the police department can set up tents in their parking lots, where sex offenders can stay. This way, there’s zero cost of monitoring and these folks (some of them are human, too) have a roof over their heads.

Image license here

Anyone who has been following sex offender issues across the country knows that it is an extremely difficult task balancing the safety of the community and the human rights of sex offenders. But this is just plain ridiculous.

Danbury apparently has one of only three or four shelters throughout the state that do not have a prohibition on sex offenders living there. Danbury Mark Boughton is not happy (Boughton was most famously in the news for soliciting the help of Federal agents to crack down on illegal immigrants in Danbury)*.

“These people had nothing to do with Danbury before they were sent here,” Danbury Mayor Mark Boughton said. “Danbury is one of only five or six shelters in the state without a prohibition against sex offenders. This is outrageous.”

What’s outrageous is the fear-mongering. Sex offenders need somewhere to live, too. Or would you rather that they disappear into the wild and no one can keep tabs on them?

In a letter dated Wednesday to Chief Court Administrator William J. Lavery, Boughton wrote: “We have grave concerns of a concentration of sex offenders in our shelter, therefore, we are promulgating new rules that will only allow one or possibly two Danbury resident sex offenders present at any time.”

Concentration? There are only three sex offenders, Mayor, three. Apparently he’s okay with one or two sex offenders with prior ties to Danbury living in the Danbury shelter. I don’t see how it makes a damn difference where they come from. Does Danbury have special rules for living that these “outsiders” won’t know?

The homeless shelter on New Street has 15 beds in the summer and 20 in the winter, director Claudette Fogarty said. She said she isn’t there to judge who gets a bed at night and that people who were convicted of sex offenses stay at the shelter like other people, usually without a problem.

Fogarty said the shelter is open to people who are 18 years old or older. Families with young children do not stay there. She said sometimes the state’s probation office phones to ask if a particular person is staying there. She will answer, then alert the client about the call.

“They’re just people. This is my job,” Fogarty said. “It’s not my job to judge them.”

Fogarty said people on the state’s sex offender list have a tough time finding apartments, and the federal Department of Housing and Urban Development won’t let them have public housing.

“We’re bashing our heads against the wall on this,” Fogarty said. “These people need housing.”

Fogarty said to the best of her knowledge – and she has been working at the shelter for 20 years – there has not been a problem caused by a person on the sex offender registry. The list includes anyone convicted of a sexual crime, not just those guilty of offenses against children.

Nothing more than plain old fear-mongering. SEX OFFENDER! BOO! Are you scared yet? Go crawl into your bed and lock your doors, the big bad anonymous, not yet violent SEX OFFENDER is out to get you!

Disgusting.

While we’re on this topic, the Saucy Vixen is asking for your help, criminal defense lawyers.

All sex offender related posts can be found here and residency restriction posts can be found here.

*See previous coverage of the immigration mess here, here, here, here, here, here and here . [Please be aware, all of these links are to posts that were written when I was on typepad. They were imported but the formatting in the blockquotes is all messed up. Sorry.]

This [pdf] is a map of Tippecanoe County, IN, where “John Doe” is asking to be found not to be a sex offender anymore and also challenging the legality of residency restrictions [previous coverage here].

I know next to nothing about the geography of Indiana and even less about Tippecanoe County, but doesn’t it look like most of the inhabitable urban area of the county is covered by the restrictions?

A judge in Kentucky has ruled that residency restrictions cannot be applied to sex offenders that were convicted before the law went into effect.

Jefferson District Judge Donald Armstrong Jr. dismissed the cases of three Louisville men charged with living too close to schools and a youth treatment center, ruling that the law is unconstitutional because it adds punishment to their initial convictions.But Michael Goodwin, an attorney for one of the men, said Armstrong “has recognized that when an individual is punished by a judge and jury, the legislators can’t, many years later, adopt a second punishment for the same person.”

This was a Superior Court decision (Supreme Court for you New Yorkers), so this isn’t the end. In fact, a different Superior Court judge ruled that the restrictions were constitutional. KY’s Supreme Court will have to decide this sooner or later.

Under the old law, offenders had to live at least 1,000 feet — a fifth of a mile — from locations including a school building or licensed day-care center. The new law measures the 1,000-foot distance from the property line.The new law applies to all offenders, even if they are no longer on probation or parole, or under any type of judicial supervision.

After residency restrictions went into effect in Tippecanoe County, 28 sex offenders have been asked to move their homes. One of them, John Doe, is saying no. John Doe was convicted in 1988 and released from jail in 1992. Since then, he has no arrests. He has lived at his current address for 7 years. However, new legislation is forcing him to relocate.

Legislation took effect July 1, 2006, that prohibits those offenders from living within 1,000 feet of a school, public park or youth program center.

Wording of the law does not make it clear whether it applies to offenders convicted before that date.

But the Tippecanoe County prosecutor’s office is enforcing it as applying to any such offender in the Indiana Sheriff’s Sex and Violent Offender Registry.

John Doe is taking advantage of an IN law that permits sex offenders who are 10 years removed from their release to petition a court to be no longer considered a sex offender.

Here [pdf]are the motions and petitions he filed in court, which include the petition to no longer be considered a sex offender, a Motion for Preliminary Injunction and a Motion for Permanent Injunction.

The legislation is challenged on ex-post facto, takings clause and double jeopardy grounds.

photo courtesy: http://www.flickr.com/photos/mysticchildz/540087127/ , license info: http://creativecommons.org/licenses/by/3.0/

The Courant had this article over the weekend, chronicling the efforts across the state to deal with sex offenders after release.

The debate in Stafford was feisty and political.First Selectman Allen Bacchiochi, a Republican, had proposed an ordinance that would ban convicted sex offenders from public parks and recreation areas.

At the selectmen’s May 10 meeting, Democratic Selectman Gordon Frassinelli questioned the utility and deterrent value of the ban, likening the initial written warning and $100 fine on the second offense to an unshoveled sidewalk violation.

Bacchiochi snapped back, “Do you want to protect the children or do you want to protect the person who has already been a sex offender? I want to protect the children of this town.”

“I think that’s pretty universal,” Frassinelli replied in a quiet voice.

Stafford is the latest to wade into the debate, with the selectmen passing the ordinance, copied from one in Danbury, last month. Afterward, Bacchiochi immediately pulled it back for legal and enforcement review before sending it to a town meeting vote.

A state-wide bill to restrict sex offenders from living within 1000 feet of schools and child-care centers passed the House but didn’t come up for vote in the Senate. Connecticut has been slow to enter the fray, which has seen a rush of bills nationwide. This has actually been a good thing. As the debate has gathered steam, more data has become available and Connecticut has been able to see the effects of passing such laws.

If it saves even one child, it will be worth it, proponents say.But new research and treatment experts say it has a slim chance of doing even that.

“I know of no case where it’s saved a child from being molested,” said psychologist Dennis Gibeau, program director for the Center for the Treatment of Problem Sexual Behavior in Middletown. “The idea that we’re instituting laws that restrict where sex offenders can live, where they can frequent, doesn’t really address the issue of protecting children.”

Bridgeport is amending a proposal that would restrict sex offenders from living within 2,500 feet of schools and child-care centers and prohibit them from parks unless accompanying their own children. Its sponsor, Councilman Keith Rodgerson, projects it will come before the common council again in July.

Rodgerson says there is more council and city support for the move since his research showed the unequal density of sex offenders in Bridgeport compared with Fairfield County towns and the state at large. Bridgeport has almost 16 offenders per square mile, while Danbury and the state as a whole have less than one.

“You walk out of your front door and you’re going to bump into one,” Rodgerson said.

Other cities in the State are dealing with the problem in the context of CT’s small size. New London considered a residency restriction ban, but it wasn’t pursued. The Mayor said it would have been hard to enforce.

No parent, politician or pundit could find fault with the intent of keeping children safe from sexual abuse. Of more than 600,000 registered sex offenders in the nation, Connecticut has almost 4,500.But can the recent laws, some of which virtually leave the convicted offender nowhere to go, work?

First of all, in 80 to 90 percent of sex offenses, the predator knows the victim, experts say. The stranger in the park case is rare.

Second, many of the ordinances, including the Danbury one, do not differentiate between child molesters and other offenders. The crimes of the 10 registered offenders in Stafford range from first-degree sexual assault to public indecency.

Third, the jury is still out on whether registering offenders or restricting their activities reduces the number of sex crimes.

“The general idea of limiting sex offenders in mixing with children certainly makes good common sense,” Attorney General Richard Blumenthal said. Blumenthal supported the public safety legislation and has suggested more aggressive steps, such as electronic monitoring of serious offenders.

But a study released in April by the Minnesota Department of Corrections, tracing 224 repeat sex offenders, concluded that not one would have been deterred by a residency restriction law. Social proximity was the key factor, it found, with half of the offenders establishing contact with victims through friends or acquaintances. Only 35 percent of the offenders made direct contact with victims, and none of the juvenile cases involved contact near a school, park or other prohibited area.

At least the media is now taking note of the DOJ study that debunks the myth that sex offenders have a high rate of recidivism.

At the forefront of the debate is the presumption, once a child molester, always a child molester.A premise in the Danbury and Stafford ordinance states, “the recidivism rate for released sex offenders is alarmingly high, especially for those who commit their crimes on children.”

But a 2003 Bureau of Justice Statistics study followed 9,691 released sex offenders, 4,295 of them child molesters, in 15 states from 1994 to 1997. In that span, only 5.3 percent of the total group repeated sex crimes, and 3.3 percent of the child molesters were arrested for another sex crime against a child.

“The conventional wisdom is that they all go out and reoffend. I don’t think you’re going to find the data to support that,” said Charles Olney, research associate at the Center for Sex Offender Management in Maryland, a project for the U.S. Justice Department. “That 100 percent recidivism rate – I’ve only heard it in speeches.”

Dan Casagrande, the Danbury corporation counsel who helped draft the sex offender ordinance, pointed to an Indianapolis ordinance that was struck down in federal court as too restrictive. “It kept anyone on the registry from entering the city of Indianapolis. You can’t even be on the interstate,” he said.

Police in Georgia and Iowa have said the laws have seriously undermined efforts to keep track of offenders. “We’re going to see sex offenders who are unable to live in communities and they’re going to go further underground where they can’t be monitored,” Renee Redman, legal director of the ACLU Foundation of Connecticut, said.
It will be interesting to see how cities (and the state) react to growing data on residency restrictions and whether they attempt to shape bills in a meaningful way.

Here is my post on what acceptable registry and residency restriction laws would look like.

Here’s something to make you chuckle this Sunday morning:

On April 5, 1996, this Court ordered Plaintiff to show cause why this Court should not impose Rule 11 sanctions upon him for filing a motion for improper purposes. The motion which Plaintiff filed was entitled “Motion to Kiss My Ass” (Doc. 107) in which he moved “all Americans at large and one corrupt Judge Smith [to] kiss my got [sic] damn ass sorry mother f[...] you.”

Washington v. Alaimo, 934 F. Supp. 1395 (1996). Awesome

Today’s Sunday Globe Magazine has a wonderfully insightful and detailed article on residency restrictions and their effectiveness.

The residency laws bring up serious civil liberties concerns, including that these measures apply to convicts after they have been punished and released and served their parole, and that in many cases, homeowners are exempt while renters may be required to move. And then there’s the fact that this type of post-release regulation doesn’t exist for other criminal classes: We don’t prohibit arsonists from living near gas stations.

But a less-discussed argument against the laws is that they don’t actually work to prevent sex crimes against children. Studies have shown, for example, that the majority of these crimes are perpetrated by family members or acquaintances, that many sex crimes are never reported, and that sex offenders often molest outside the area where they live. Some scholars go so far as to say that the measures could put children in greater danger, not less – because the sex offenders go underground, because therapy works to prevent re-offense, and because limited resources are wasted enforcing the laws. “There is no evidence that residency restrictions work, and there are some pretty good arguments why they are not likely to be effective,” says David Finkelhor, the director of the Crimes Against Children Research Center at the University of New Hampshire. “No one who has any real professional experience in the management of sex offenders thinks these laws make much sense.”

The article traces the history of Megan’s Laws and the recent residency restriction laws, has quotes from legislators, LEO, parents, offenders, psychiatrists and professors, and cites the recent Bureau of Justice Statistics. It attempts to dispel some of the myths surrounding these laws.

The public also needs to know that children are getting safer. According to the Children’s Bureau of the Department of Health and Human Services, sex crimes of all kinds have dropped substantially since the mid-1990s, after increasing between 1977 and 1991. Between 1991 and 2005, the most recent year for which data are available, substantiated sexual abuse cases dropped by 51 percent. The decline, says David Finkelhor of the University of New Hampshire, is due to the increased incarceration of sex offenders, more intervention and prevention efforts, and better mental health treatment, including more widespread use of antidepressants and other psychiatric medicines. Residency restrictions didn’t do a thing to help.

Technorati Tags: sex offenders, residency restrictions