Tag Archives: proposed legislation

First drafts of crim justice reform bills unveiled

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Yesterday, the Judiciary Committee made available the 14 proposals submitted by various lawmakers to reform the criminal justice system. I’ll go through each one in later posts. First up, though, is the proposal submitted [pdf] by the Judiciary Committee co-chairs, which has already received some press coverage.

First, Burglary in the First Degree is amended to include an element called “home invasion”. Home invasion is defined as:

a person “commits a home invasion” when such person enters a dwelling while a person other than a participant in the crime is actually present in the dwelling with intent to commit a crime therein and such dwelling, at the time of such entry, is not open to the public and the actor is not otherwise licensed or privileged to enter such dwelling.

So basically, with this amendment, a burglary would be a home invasion, which is a burglary, unless no one is actually present in which case it is a burglary.

This bill also Continue reading →

CT House passes bill requiring registration of e-mail address

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Yesterday, CT’s house of representatives passed HB 7085 unanimously (search for 7085), which requires that sex offenders register their “electronic mail address, instant message address or other similar Internet communication identifier, if any“. The bill, however, states that such “identifiers” shall not be public records. It now awaits a vote in the Senate.

For what it’s worth, Myspace supports this bill.

Also, this bill confers residency restriction determinations on the Risk Assessment Board.

(d) The board shall use the risk assessment scale to determine which offenders should be prohibited from residing within one thousand feet of the real property comprising a public or private elementary or secondary school or a facility providing child day care services, as defined in section 19a-77.

It also makes computer techs mandatory reporters.

Sigh.

Previous coverage: “proposed legislation” category.

Sex offenders and MySpace: Free speech and due process violations?

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The Duke Law & Tech Review iBlawg has two very interesting posts on whether MySpace’s decision to block convicted sex offenders from using their services violates either the right to free speech or to due process. As to free speech, the author writes:

The basis for asking if the proposed legislation and MySpace’s actions are a violation of the First Amendment stems from the Supreme Court case John Ashcroft v. Free Speech Coalition. 535 U.S. 234 (2002).In light of Free Speech Coalition, it appears that Congress would have to make a solid argument that all written works from a former sex offender to a teenager are patently offensive in light of community standards and is therefore unprotected speech. The difficulty with this argument is that it depends on what the sexual offender is writing on the social networking website, whether he or she is trying to arrange a meeting with the teenager, and whether the former sex offender is still a danger to the community.

Moreover, the speech that is in question is not harmful in itself; it is the later potentially unlawful actions that are potentially dangerous, indicating the legislation may be overly broad. The only way such speech can be differentiated from the speech in Free Speech Coalition is if a distinction is made between speech produced by non-former sex offenders and speech produced by sex offenders. If made, this distinction raises the question of whether this different treatment violates a sex offender’s right to due process.

On Due Process, she writes:

The Supreme Court has only ruled on two cases regarding sex offender registries and only one of those cases specifically discussed due process.1 In Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003), a Connecticut statute provided for public disclosure of the state’s sex offender registry.Even in the wake of Doe, there are two arguable reasons for why sex offenders are being denied due process rights when banned from social online communities without any determination of their current dangerousness. First, the scope of Doe is very narrow. The Court ruled that Plaintiff already had a hearing when it was determined that he was a sex offender and that the Connecticut statute required the registration of all convicted sex offenders.

Second, in Doe, the online registry was solely for the purpose of public awareness.15 Here, third parties are using the registry to block certain individuals from Internet sites, and such a distinction may change the analysis.

There is more in-depth analysis in the full posts, so I encourage you to read them. I’ve long maintained that Doe ruled on nothing more than procedural due process and the substantive issue was not touched. SCOTUS has yet to consider whether any of these “requirements” or “restrictions” geared toward sex offenders violate substantive due process.

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Legislative updates

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Perusing the legislature’s list of bills for the past few days, I’ve stumbled upon quite a few legislative proposals dealing with sex offenders and criminal justice. I’ll update this post with links to each subsequent post. There are a few bills I want to address on their own.

As you can see in the footer, I’ve created a new category “proposed legislation”. I will be posting all future updates on proposed legislation to that category, so that’s an easy reference for those of you interested.

NJ sex offender mania spreads to internet access

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Update: Upon further rumination and discussion, I’m having serious doubts about the enforceability of this proposed legislation. How exactly do they propose to police this?

Would all ISPs be given lists of sex offenders and told not to provide service to them? Would family members of sex offenders also have to give up internet access or at the very least, disable it in some fashion when their sex offender relatives are over?

This is clearly not a very well thought out legislation at all.

Original Post: NJ is considering legislation that would prevent sex offenders from having internet access or simply accessing the internet.

Under the plan, released sex offenders caught using the Internet would face up to 18 months in jail and fines of up to $10,000.

Sex offenders caught using the Internet to solicit a child would face a mandatory five years in jail, rather than the three years they face under current law.

Online dating sites would also have to notify New Jersey residents whether they do background checks, a proposal opposed by Internet companies such as Yahoo!, AOL, eHarmony and Match.com.

Now this is getting completely absurd. They can’t go to school, they can’t go to libraries, they can’t access the internet. Might as well give them a gun.

Felony for invoking right against self-incrimination?

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Montana legislators (there goes my theory) are considering legislation that would make it a felony to not report a sex offender who has not registered.

Rep. Edward Buchanan, R-Torrington, is chairman of the House Judiciary Committee. He said the bill would make it a felony for a person who knows that a convicted sex offender has failed to register with the state to withhold that information and fail to notify law enforcement.

The judiciary committee determined that a person shouldn’t have to commit an affirmative act to be convicted of this crime. Then the legislators delved into a discussion of the right to remain silent:

Rep. Floyd Esquibel, D-Cheyenne, asked whether people have the right to remain silent if a police officer asks them questions.

Buchanan
responded that people have the right to remain silent if they’re in
police custody, "and you’re already being interrogated." He said he
didn’t believe the right against self-incrimination was applicable to
the proposed legislation.

Rep. Colin Simpson, R-Cody, responded
that people have the right to remain silent so they don’t incriminate
themselves. He said this bill would make it a crime for people not to
talk and incriminate themselves.

"I just have the feeling that
we’re criminalizing victims or family members of offenders, because
they have knowledge of offenders," Simpson said.

What will this mean for lawyers? Each state’s ethics codes vary, but the ABA Model Rules of Professional Conduct Rule 1.6 states the following:

(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary:

    (1) to prevent reasonably certain death or substantial bodily harm;

    (2) to prevent the client from committing a crime or
    fraud that is reasonably certain to result in substantial injury to the
    financial interests or property of another and in furtherance of which
    the client has used or is using the lawyer’s services;

    (3) to prevent, mitigate or rectify substantial
    injury to the financial interests or property of another that is
    reasonably certain to result or has resulted from the client’s
    commission of a crime or fraud in furtherance of which the client has
    used the lawyer’s services;

    (4) to secure legal advice about the lawyer’s compliance with these Rules;

    (5) to establish a claim or defense on behalf of the
    lawyer in a controversy between the lawyer and the client, to establish
    a defense to a criminal charge or civil claim against the lawyer based
    upon conduct in which the client was involved, or to respond to
    allegations in any proceeding concerning the lawyer’s representation of
    the client; or

    (6) to comply with other law or a court order.

Reporting that a client has not complied with registration requirements doesn’t fit within any of the above categories. Yet, it seems that under the broad language of the legislation, an attorney would be guilty of a felony for failing to report that a client has not registered as a sex offender. Any thoughts on this?

Death penalty streamline bill facing opposition

The Federal Streamlined Procedures Act of 2005 [previous commentary here] is facing growing opposition. The bill, introduced by Sen. Kyl and Rep. Lungren would severely restrict Federal Habeas Corpus review. Therefore the poorly titled "streamlined procedures".

Opposition is coming from all quarters, however, and not just from defense lawyers. The LATimes reports [requires registration - if you don't want to register, go here]

Concerns come not only from death-penalty opponents but from individuals and groups not often thought of as vocal supporters of the rights of criminal defendants.

Among the critics are the Rutherford Institute, a conservative legal
group that specializes in religious freedom and antiabortion issues;
Bob Barr, the conservative Republican former congressman from Georgia;
more than 50 former prosecutors; and more than a dozen former federal
judges.

The legislation, opponents say, would dramatically restrict federal
courts’ ability to consider habeas corpus petitions from state
prisoners who claim that their constitutional rights have been violated
or that they have evidence they are innocent.

Sen. Kyl says that the restrictions imposed by the AEDPA aren’t enough and cites an increase in the number of petitions filed – almost 10,000 over the last 10 years. Gee, you think maybe it’s because of longer and stricter sentencing?

Kyl said the bill had an exception that would enable innocent people to obtain relief from a wrongful conviction.

But the former judges — including William H. Webster and William S.
Sessions, both of whom served as directors of the FBI in Republican
administrations — countered that "the language of the exception is so
narrow that it will cover virtually no one."

The former jurists
also said the bill would overturn several recent Supreme Court
decisions interpreting the 1996 death penalty act "as well as several
other decisions of the Rehnquist court, many of which have helped to
further streamline the system and eliminate delays. It serves no one’s
interests to engender the kind of delays that this bill will create" by
precipitating more litigation.

Prosecutors and defense attorneys united in their criticism:

At the [first senate] hearing, Seth P. Waxman, who was U.S. solicitor general in
the Clinton administration, described four death penalty cases in the
last four years in which the Supreme Court found major constitutional
violations overlooked by state courts. In one instance, prosecutors hid
critical information from the defense. In another, the Supreme Court
found that prosecutors had improperly kept blacks off a jury. If the
Kyl-Lungren bill had been in effect, none of those cases would ever
have been reviewed by a federal court, Waxman said.

Attorney Barry Scheck, co-founder of the Innocence Project, which had
played a key role in freeing more than 100 wrongly convicted people —
eight of whom had been on death row — said a number of those people
would be in prison or dead if the proposed legislation had been in
effect.

Scheck told the Judiciary Committee that the proposed
law turned the lesson of those cases "on its head. It threatens to make
what is already a torturous, difficult mountain for the wrongfully
convicted to climb into a wholly impenetrable steel wall."

Anyone who does Habeas work knows how difficult it is to get a petition granted. Case law restrictively defines ineffective assistance and the actual innocence standard is torturous. Hopefully, this legislation won’t pass. Thanks to Howard Bashman for the link.