a public defender

Finally some good news on the criminal justice reform front. Mike Lawlor, co-chair of the Judiciary Committee, is also on the State Risk Assessment Board, which is charged with – you guessed it – assessing the risk of the state’s registered sex offenders. Lawlor wants to streamline the registry so as to provide more relevant information on those who have the highest risk of re-offending.

Lawlor sees room for improvement. He wants the Connecticut registry to attach “risk levels” to each offender to help people understand who poses a danger and who, likely, does not. It’s an idea modeled on states like Minnesota, Missouri and Colorado, where “actuarial” risk assessment—a social science-based prediction method—is used to analyze a sex offender’s likelihood of re-offending, and where only those determined to have a high risk are placed on the internet. Based on the experience of the states that have done this, high risk offenders typically make up only 10 to 20 percent of the sex offender population.

In 2006, Lawlor pushed for the formation of the Risk Assessment Board, charged by the legislature with analyzing the state’s more than 4,600 registered sex offenders and stamping each as high, medium or low risk. The board is made up of high-level public officials—the commissioner of Correction, the commissioner of Mental Health and Addiction Services, the commissioner of Public Safety, the chief state’s attorney, the chief public defender, the chairperson of the Board of Pardons and Paroles—as well as a governor-appointed victim’s advocate, forensic psychiatrist, a risk assessment expert and members of the relevant legislative committees, including Lawlor.

The article actually does a good job of explaining the risk assessment methods and compares it to the traditional subjective approach employed by therapists.

Further, people may finally be catching on to the real problems of registries and the dangers it poses:

It’s counterintuitive, acknowledges the study’s author, David D’Amora, a licensed therapist who heads the Center for the Treatment of Problem Sexual Behavior and sits on the Risk Assessment Board. But the reason for the possible increase [in recidivism], he says, is fairly straightforward: Registered sex offenders have a harder time getting jobs and finding housing, and people without jobs or housing are more likely to abuse drugs and alcohol and to re-offend. When your life’s a mess, the theory goes, it’s harder to keep your behavior in check. “When you over-respond to the lowest risk people,” says D’Amora, “you end up making them more dangerous.

“With the best of intentions we are putting in place things that are decreasing the ability for people to have appropriate jobs and appropriate living,” says D’Amora, “and those are two of the things that are most important to decrease recidivism. The unintended consequence is making things more dangerous.”

Of course, there’s a long way to go and with the current political climate, who knows if this will ever come to fruition. I hope it does. If not, can they at least legislate that condoms be made available in jails?

In light of yesterday’s prison tour, Judiciary Committee co-chair Mike Lawlor has issued a statement asking Gov. Rell to provide more resources to the DOC. He renews his disbelief over Comm’r Lantz’s assertions before the judiciary committee that they have the prison population under control.

Yesterday I toured the Willard-Cybulski Correctional Institution in Enfield at the request of the corrections officers who work there. After seeing the institution myself and having one-on-one conversations with many officers, there is no question that the situation there and elsewhere in the Department of Corrections is nearing a crisis stage due to the recent surge in inmate population.

Two weeks ago, Commissioner Lantz appeared before the Judiciary Committee in your place and told us that her department needs no additional resources in order to safely manage the population surge. I simply cannot see how that is true.

These conditions cannot be ignored. For the protection of the public and corrections staff, you must allow the front-line professionals in corrections and parole to tell state officials what they need to safely manage the inmate population and the offenders who are or who will be released into the community in the near and long term. We, in turn, must provide them with those resources.

Meanwhile (and there’s no link to this – surprise, surprise!), there are reports that there was a violent fight at Brooklyn Correctional last night that resulted in an inmate’s head being busted open. Inmates and COs have been warning that this overcrowding is creating a very volatile situation. Let’s hope someone takes heed before it turns ugly.

Or perhaps they should just look to this 2000 report prepared by our very own Legislative Program Review and Investigations Committee, which concludes:

Prison overcrowding has a cyclical pattern in Connecticut — reaching a crisis point about every 10 years. The committee report showed most of the causes of prison overcrowding occurred outside the administration and jurisdiction of the Department of Correction and these complex issues and problems cannot be addressed by a single state agency. Specifically, the program review committee identified five main causes of prison overcrowding. They are:

• Despite the decrease in arrest and crime rates, the number of offenders in prison or jail continued to increase due to the “war on drugs”, increased funding for police, increased role of victims and victim advocacy groups in the court process, added bed capacity in the correctional system, recidivism and technical violations of probation and parole, harsher penalties for certain types of crimes, and narrowed eligibility for community release and alternative sanction options.
• Convicted inmates were remaining incarcerated for a greater portion of their court-imposed prison sentences as a result of the shift from an indeterminate to a determinate sentencing structure, elimination of “good time”, creation of time-served standards for parole eligibility, and the enactment of several “truth in sentencing” initiatives.
• The aggressive “tough on crime” approach supported by the legislature and adopted by the executive and judicial branches allows the criminal justice system to narrow its use of discretion and take a more conservative and less controversial approach to punishment.
• A lack of prison beds, especially high security and pre-trial beds, forced DOC to operate at capacity.
• Poor planning and a lack of an accurate population projection and offender needs analysis contributed to the cycle of overcrowding and hampered DOC’s efforts to adequately plan for new or expanded facilities.

In reviewing options available to manage and control growth of the inmate population, the committee found Connecticut cannot build its way out of a prison overcrowding crisis. However, prison expansion is one model to address prison overcrowding. This strategy has been Connecticut’s primary response to prison overcrowding over the past 20 years. It is the simplest but least effective and most expensive approach. Services in this model are concentrated primarily on the small percent (25 percent) of the offender population in prison.

If legislators are truly interested in the “best solution”, then they should perhaps look to the current overcrowding problems in Texas, wonderfully covered by Grits for Breakfast [latest post here].

The full press release is after the jump, if you’re interested.

Colin McEnroe weighs in on the Pollitt case, with this entry on his blog, in which he dubs the governor the “American Idol” governor:

Her entire involvement in this case appears to stem from her usual finger-in-the-wind desire to gratify the biggest, loudest, most obvious set of clamoring voices. If this woman possesses a set of core beliefs that occasionally supersede her natural instinct for cheap politics, she does not exhibit them very often. In this case, what has spurred her to seek a remedy that exists somewhere beyond the normal scope of the law? The fact that she is getting a lot phone calls. She’s sort of the “American Idol” governor. Phone calls and text messages mean, as far as I can tell, more to her than just about anything.

Then today, on his afternoon show, he interviewed AG Blumenthal about his position and his actions in this matter. While Colin did push him a bit, I wish he had been firmer on calling the AG out on several points:

• Why did the Chief State’s Attorney not get involved?
• In whose custody would he be if he were in a halfway house? (The answer is DOC)  Is that not incarceration?
• If he is so concerned about Pollitt’s re-adjustment to the community (which he says he is), then why wait till the last minute to do something? The man has been in prison for 24 years.
• When was the last time he filed a Motion in any court asking that a released convict not be allowed to move in with his family?
• It isn’t true that sex offenders have the highest rate of recidivism.

Earlier in the day Gov. Rell appeared on the morning show, as did Peter who blogs at Undercurrents. The less said about the interview with Gov. Rell, the better.

Connecticut was fast becoming a scary place to live. As yesterday’s post shows, residents of a small section of Southbury, a suburban town in Connecticut, were becoming increasingly concerned and paranoid with the news that one of their own was about to take in her brother – a convicted sexual offender – upon his release from prison. Mr. David Pollitt is scheduled to be released tomorrow after serving the full length of his sentence and will embark on a torturous journey of five years’ probation.

Residents of that nook of Southbury, rightly concerned and wrongly outraged, embarked on a full-press lobbying of the Governor to keep this from happening. Scarily, she bit. This morning, she wrote a letter to Attorney General Blumenthal asking him if Mr. Pollitt could be confined beyond his legal discharge date.

While recognizing that Mr. Pollitt has served his sentence and that his release and probation are statutorily governed, we also have a duty to ensure that we have left no stone unturned in safeguarding the safety and welfare of the Southbury residents. Numerous children and elderly residents reside in the Fox Run Drive neighborhood. I am asking that you explore immediately the possibility of filing a motion in Superior Court seeking the delay of Mr. Pollitt’s release. This additional time will allow all interested parties to carefully review all possible safety measures that may be implemented to protect the Southbury residents.

There are several, several problems with this request that I intended to outline in full detail, but in light of recent happenings, will only mention briefly:

First, this exhibits a blatant disregard for law in the State of Connecticut and flouts the Constitutions of both the Constitution State and the United States of America. I cannot imagine that Gov. Rell is not adequately advised as to the illegality of her request.

Second, assuming that she is advised as to the illegality of her request, this can be nothing but blatant political pandering. Which is abhorrable abhorrent. You do not play with people’s liberty to further your political goal.

Third, she makes this request of Attorney General Blumenthal, who has zero standing to request changes in the conditions of probation. An appropriate request would have been one made to Chief State’s Attorney Kevin Kane, who I suspect might not have indulged her to the extent the AG did by filing this motion.

Fourth, her request indicates that the State agencies have not had time to evaluate the impact of his release into the community and make adequate preparations to safeguard the community. What, 24 years wasn’t enough to get their act together? [By all accounts, let it be noted, probation has done an excellent job of going out to the community and spending a significant amount of time attempting to assuage the fears of the residents. Paranoia, however, cannot be easily reassured.]

Finally, a half-way house or an in-patient facility is not an alternative form of probation, but an alternative form of incarceration. Mr. Pollitt has fully satisfied his period of incarceration and any such admission to a half-way house or in-patient facility would be the equivalent of keeping him in a correctional facility.

So, as you might know by now, AG Blumenthal did file a motion in New London Superior Court this afternoon, which was, by all accounts, summarily dismissed by Judge Susan Handy. She may not realize it (she probably does), but she has single-handedly saved the rule of law in the “Constitution” state.

Judge Susan Handy told Attorney General Richard Blumenthal that he has no standing to intervene in the case. Blumenthal said he was acting on behalf of Gov. M. Jodi Rell.

[She] said 54-year-old David Pollitt has served his sentence and is entitled to his freedom.

If this motion were granted (or if it is granted on appeal – if they appeal), it will mark the end of the rule of law in Connecticut. What it will signal is that the State has the power to confine individuals beyond their legal sentences for specious reasons.

Gov. Rell has just issued a statement in light of Judge Handy’s ruling:

“I am very disappointed that this reasonable and prudent request was rejected,” she said. “Public safety is our top priority — I empathize completely with the residents of the Fox Run Drive community [in Southbury], and despite this decision I want them to know that everything possible is being done to safeguard their homes and families.

Forgive me if I scoff. I’m sure every community in the State has received such assurances when sex offenders are released to them on a weekly basis.

 (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.]

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 New Haven Independent has this piece on some legislation discussed during the recently concluded legislative session. Notable among the bills mentioned was one to eliminate the offense of “sale within 1500 feet of a school zone”.

Another bill People Against Injustice and other grassroots groups around the state supported would have removed 1,500-foot “drug-free zones” around schools, day care centers and public housing. Those arrested on drug charges in such zones receive mandated longer prison sentences; the zones cover practically entire cities around the state.

I missed this – maybe it was just a proposal and not an actual bill – but this absolutely needs to be done. Connecticut is a very small state to begin with and in cities like New Haven and Hartford, it is almost impossible to be somewhere that is not within 1500 feet of a school. For example:

One reform group estimated that the only part of New Haven exempt from coverage under this law is the Yale golf course.

I guess the purpose of the bill was to prevent people selling to school kids, but all it does in reality is penalize those that live and sell within a city. Almost none of the defendants arrested and charged with sale within 1500 are arrested for selling to children.

It’s not like sale of drugs isn’t an offense. It is. Heavily punishable in this state. Sale w/1500 feet is usually tacked on to threaten defendants into taking plea deals that are significantly higher than if there were no charge of sale w/1500 feet. For a normal sale, you can get up to 15 years for a first offense and 30 for a second offense. If you’re not drug-dependent, however, you can get up to life in prison

Good to see then, that Judiciary Committee co-chair Mike Lawlor recognizes this problem:

Lawlor called the 1,500-foot law is a result of the law of unintended consequences. “That law was supposed to address people who sell drugs to kids and near schools. In practice it’s the same penalty no matter where you are so you might as well sell to kids right outside school. It’s an example of how drug laws create racial disparities – I don’t think it was intended – but if you get caught possessing drugs in an urban area the penalties are more severe than if you’re caught in a suburban or rural area. I don’t think there’s an agenda. Legislators just don’t like lowering penalties.” He supported the change, however.

And he’s right. It does discriminate; just like the differing penalties for crack and cocaine discriminate.

Take a look at the map above. It is a map from the New Haven Police Department that they use to chart the “buffer zones”. It is pretty obvious that the whole city is covered. The red squares are Public, Private, Charter, and Head Start Schools. the blue squares are New Haven Housing Authority Projects and the green dots are Daycare Centers (More than 12 children). [The map is part of this 2001 OLR Research Report.]

I mentioned this problem of distance restrictions in the context of residency restrictions for sex offenders a few months ago and I hope that if and when a residency restriction bill is proposed again, Rep. Lawlor keeps in mind that it would create the same problems. By the quote above, if a residency restriction bill were passed, no sex offender could live in the city of New Haven. That’s a problem.

Following on the heels of two recent posts [here and here] dealing with sex offenders and probation terms comes this story from the Stamford Advocate about an elementary school teacher who pled guilty in 2005 to an offense that did not require admission of sexual contact with a minor.

The charge is not a sex offense. Prosecutors dropped charges of fourth-degree sex assault, or fondling, as part of the plea deal, though they insisted they could have proven the charges at trial.

The state Department of Children and Families concluded the sex abuse allegations were not credible, court records show.

Lang, who now lives in Trumbull, was sentenced to five years probation with a possible prison sentence of up to two years if he violated probation.

All well and good. However, eighteen months later, DCF changed its mind and concluded that there had been sexual contact. As a result, it contacted Lang’s probation officer, who then imposed a new condition of probation: that he had to complete sex offender treatment and take a lie detector test.

Lang refused to take the test, according to the affidavit. As a result, he was charged late last month with violating his probation and now faces at least two years in prison.

I’m not the only one who thinks this is problematic:

Leading defense lawyers said the probation officer might have overstepped in ordering Lang to be treated as a sex offender.”The probation officer here exceeded his authority under the law,” said Michael Fitzpatrick, a Bridgeport attorney and former president of the Connecticut Criminal Defense Lawyers Association. “If you start having situations where there is uncertainty about the conditions of a plea agreement, it could cause chaos in the criminal justice system.”

As my readers know, I do not like this requirement to begin with (even when it is made a part of a plea agreement). This subsequent addition is even more problematic. Basically, in order to complete probation, an offender has to admit to an offense which is not what he pled to. This is obviously not the first time and won’t be the last:

The case is the latest to raise questions about the practice of dropping sex offense charges during plea deals in such cases. Last year, a Madison man refused to admit being a sex offender during therapy sessions because he pleaded guilty only to non-sex charges.The man, Robert Pentland III, was kicked out of probation for failing to comply with treatment.

Some district attorneys in the United States ban such plea deals or use them rarely because they can create chaos during treatment.

Pentland’s attorney, Norman Pattis, said last year he would fight any move to charge Pentland with violating probation or to force him to register as a sex offender.

I eagerly await the outcome of Mr. Lang’s violation of probation case.

My apologies for copying the title of the news story. Try as I could, I was unable to come up with something better.

Ruling on what has been a problematic requirement imposed by Departments of Correction throughout the country, the Minnesota Supreme Court decided Thursday that inmates cannot be threatened with additional jail time if they do not admit to their crimes during treatment. The opinion holds that it is a violation of the Fifth Amendment’s right against self-incrimination.

The court’s 5-2 decision overturned a 1999 ruling in which it found the opposite — that more prison time wasn’t enough to force an inmate to incriminate himself. The current case involved two inmates convicted of sex crimes — Frank Edward Johnson and John William Henderson.

Both refused to participate in sex offender treatment that would have required them to admit to sex offenses and discuss the incidents in detail. Johnson was appealing his conviction, while Henderson argued that he would open himself up to perjury charges if he admitted a crime he had denied during his trial and appeal.

Both men got 45 extra days in prison for not participating in the program.

Chief Justice Russell Anderson, writing for the majority, cited a 2002 opinion from then-U.S. Supreme Court Justice Sandra Day O’Connor saying that the threat of more prison time could be enough to compel a person to reveal information that could lead to incarceration.

“Extension of the inmates’ incarceration time for their refusal to admit sexual offenses in sex offender treatment did rise to the level of compulsion for purposes of their Fifth Amendment privilege against self-incrimination,” his opinion said.

It is a very interesting opinion that engages in a Marks analysis, which was being done in the blogosphere yesterday in the wake of SCOTUS’ school desegregation opinions. On the merits, the court holds:

We agree, and now hold that a convicted individual can claim the privilege against self-incrimination as long as a direct appeal of that conviction is pending, or as long as the time for direct appeal of that conviction has not expired. Because extension of incarceration constitutes compulsion, and because a direct appeal of Johnson’s conviction was pending when he refused to admit the crime of which he was convicted, we affirm the court of appeals’ holding that the Commissioner’s extension of Johnson’s incarceration by 45 days for his refusal to admit his crime in sex offender treatment violated his privilege against self-incrimination.

In order to determine whether the privilege against self-incrimination was available to Henderson, we must determine whether an admission by him could have been incriminating. Because Henderson testified at trial that he had no sexual contact with the victim, an admission to the contrary in the SOTP would have been incriminating, as it might have supported a conviction for perjury. It is well-established in federal courts that the privilege against self-incrimination can properly be invoked based on fear of a perjury prosecution arising out of conflict between statements sought to be compelled and prior sworn testimony. See, e.g., United States v. Lumpkin, 192 F.3d 280, 285-86 (2d Cir. 1999); United States v. Fortin, 685 F.2d 1297, 1298 (11th Cir. 1982). There is no reason the same principle would not be applicable here.

The opinion also contains a very thorough analysis of Fifth Amendment “self-incrimination” jurisprudence. In summary:

The Fifth Amendment does not prohibit all self-incriminating testimony; rather, it prohibits “only self-incrimination obtained by a ‘genuine compulsion of testimony.’” United States v. Washington, 431 U.S. 181, 187 (1977) (quoting Michigan v. Tucker, 417 U.S. 433, 440 (1974)). The compulsion element of the privilege against self-incrimination is present when the state attaches sufficiently adverse consequences to the choice to remain silent that a person is compelled to speak. “[W]hen a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered, that testimony is obtained in violation of the Fifth Amendment * * * .” Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977). Penalty situations occur when “the assertion of the privilege is penalized so as to ‘foreclos[e] a free choice to remain silent, and * * * compe[l] * * * incriminating testimony.’” Murphy, 465 U.S. at 434 (quoting Garner v. United States, 424 U.S. 648, 661 (1976)). For example, threatening to revoke an individual’s probation for refusing to answer potentially incriminating questions would create a classic penalty situation. Id. at 435.

Just last week, we discussed this very issue (in the context of probation) here.

HT: SOI

So goes the headline of this Boston Globe story.

Nearly three years after the Supreme Judicial Court ruled that the state could post the names, addresses, and photos of the most dangerous sex offenders on a public website, sex offenders released from prison now often end up in homeless shelters, where it is difficult to track them, and a range of potential victims sleep nearby.

In a recent review of 77 Level 3 sex offenders — the category the state uses to define those with a high risk of committing sex crimes again — who list addresses in Boston on the state’s online registry, the Globe found that 65 percent reported they were living at homeless shelters.

This problem is caused by several factors: legislation, perception and lack of supervision. It also brings problems of its own.

“This is a critical issue of grave concern,” said Jim Greene , director of the city’s Emergency Shelter Commission. “Large, crowded homeless shelters are a militantly anti therapeutic milieu for people with mental health or other behavior problems. They’re just not a place for a Level 3 sex offender to reintegrate into society.”He and other advocates for the homeless fault the state for more talk than action to keep sex offenders off the streets.

Greene pointed to an unrealized five-year-old plan the state Department of Correction provides to shelters and other agencies that house recently released prisoners. Former convicts deemed at risk of committing more crimes, it says, should have “risk reduction plans” that include applications for specialized housing, special workshops to help them get jobs and medical services; and supervision after their release.

But sex offenders released from prison often find themselves boxed out from housing. Charles McDonald , a spokesman for the state’s Sex Offender Registry Board, acknowledged the reentry centers are not able to help most sex offenders find housing. “Having a home to live in is extremely important for a sex offender to reintegrate,” McDonald said. “This is a problem that should be addressed on the grand scale.”

Absolutely. This is the problem with these harsh sex offender laws. We want to punish them, but do not want to deal with the very real consequences of the laws. Where, indeed, should they live? I don’t see any solutions being proposed and till then, this problem will continue to grow.

Technorati Tags: sex offenders, residency restrictions

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.

Connecticut may have made the first arrest nationwide of a sex offender posting on MySpace. After MySpace agreed to divulge the details of the users it had deleted recently, the information was received by Connecticut’s AG who shared it with law enforcement. That led them to Chris Montefusco.

Christopher Montefusco 30, of West Haven, was taken into custody Thursday by state Department of Correction officials. He was one of what is now believed to be more than 200 sex offenders in Connecticut using MySpace. He had registered two different profiles of himself on the site, Connecticut Attorney General Richard Blumenthal said.

Although Blumenthal had no details about Montefusco’s underlying criminal charge, he said that one of the conditions of Montefusco’s parole was that he not use a computer, the Internet or access social networking sites such as MySpace without first obtaining permission from his parole officer.

The news story notes that the AG is seeking permission from Montefusco to search his computer in order to determine who he was contacting.

In Connecticut, Blumenthal is pushing the legislature to approve a bill this year that would require sites like MySpace to verify users’ ages and require minors to get parental permission before they could post profiles. Blumenthal said that the networks could apply computer technology already used by credit card and tobacco companies to verify users’ ages. Sites that fail to comply would face civil penalties of up to $5,000 a day.

But officials from MySpace have questioned the effectiveness of age verification. Hemanshu Nigam, MySpace’s chief security officer, said that it could create more dangers for children by giving them a false sense of security if a predator manages to pass through the age-screen using bogus information.

Nigam and MySpace favor an alternate proposal – which Connecticut’s House of Representatives unanimously approved last week – requiring convicted sex offenders to register their e-mail addresses and other Internet identifiers as well as their home addresses when they are released from prison.

Again, I question the reliability of either proposal. It isn’t that difficult to lie about your age and it is ridiculously easy to keep creating new e-mail addresses. Maybe computers should come with parenting guides.

Previous coverage:

• First MySpace purge casualty
• CT House passes bill requiring registration of e-mail addresses
• MySpace saga
• Sex offenders and MySpace: Free Speech and Due Process violations?

Yesterday the Senate passed SB 1458 [scroll down to the first full bill discussed], also called “Jessica’s Law”. I’ve blogged about this bill in the past and it really does provide for stiff penalties. It increases the mandatory minimum sentence for sexual assault of a minor under the age of thirteen to twenty five years.

This is also the bill that creates the “tender years” exception to hearsay. My thoughts on this are well documented. I do not like it and I don’t think I ever will.

Not all is bad, though. They amended the “Romeo and Juliet” law to increase the permissible age difference between participants to three years instead of two.

The sad thing is that the bill was based partly on incorrect information:

While the current trend among lawmakers is to move away from mandatory minimum prison terms, Kissel said this was one instance in which such enforcement is necessary. Research has shown that many sex offenders are prone to a pattern of behavior and could offend again if given the opportunity, [Senator] Kissel said.

No, not many. The latest studies show that sex offenders have the lowest recidivism rates. Also notable is the fact that law enforcement agencies have come out against high mandatory-minimums because it makes it difficult to prosecute. Defendants are less likely to accept plea deals and prosecutors have less flexibility in structuring an appropriate sentence.

Here’s another news article with a quote from a prosecutor:

Stephen Sedensky, the State’s Attorney for Danbury Superior Court, applauded lawmakers for taking steps to protect sexual assault victims.

“The legislature realizes the seriousness of these type of offenses and wants the sentences to reflect that,” he said.

He added that the 25-year mandatory minimum for the aggravated sexual assault charge could lead to fewer defendants taking a plea agreement and more cases going to trial.

“It’s too soon to tell whether that will be good for the victims,” he said, noting that the victims could be called upon to testify during a trial. “I’m anxious to see how it will play out in court.”

Well, time will tell how these statutes are utilized and whether they stand up to Constitutional muster.

Technorati Tags: sex offenders, mandatory minimums, connecticut legislation, tender years.