Sunday, January 31, 2010

Ten Years Later And Still On The List

In the past couple of weeks I have received several calls from folks who wondered why the State of Connecticut has not taken the initiative to remove them from the state's sex offender registry. It appears as if the state will not take the initiative in removing folks from the list. Will litigation be necessary to force the state's hand?

Connecticut General Statutes Section 54-254 requires that a person convicted of a felony that the court finds was committed for a sexual purpose to register as a sex offender with the Department of Public Safety. The registration is to take place for a period of ten years.

Callers wonder why, once their ten year stint on the list has passed, they are still listed for all the world to see. Doesn't the state have an obligation to remove their names? The callers are afraid to contact the Department of Public Safety for fear that they will stir a hornet's nest.

I've advised several folks to write to the department to request removal. I don't know if they will. But it seems to me that if there is a pervasive pattern of the department's failing to remove these folks' names once their ten year registration period has passed then the department is breaking the law.

Perhaps it will take a class action suit to force the department's hand. Or perhaps someone will pass this along to the Department of Public Safety with a simple request: Please follow the law you are entrusted to enforce. Here's a link to the department:

Monday, January 18, 2010

Jumping Ugly In Virginia

Virginia lawmakers are on the cusp of making a big mistake: They are about to make the restrictions imposed on all persons convicted of sex offenses even more stringent.

In theory, it all sounds like a great idea. Protect our children from risk. Who could oppose the concept? But the devil is in the details.

House Bill 1004 wants to eliminate the distinction between serious and non-serious sex offenses and require anyone who has committed an offense against a minor, whether it be violent or non-violent, a felony or a misdemeanor, to refrain from living within 500 feet of a child. Under this bill, even ancient convictions could evoke the residency restrictions.

The law not only expands the scope of observe the residency restriction, it also adds a series of new locations that offenders cannot live near. Included in the new bill are bus stops, community centers, recreation centers, public parks, playgrounds and community swimming pools. The current law only includes schools and day care facilities.

The new law will be effective immediately. Anyone living within 500 feet of the designated locations will be required to move immediately.

This is an example of the sort of overbroad and unthinking legislation produced by hysteria. By painting all folks convicted of any crime against a minor with such a broad brush, it refuses to recognize that many sex offenders pose no risk to the community. The bill stigmatizes without discriminating and is virtually guaranteed to yield more prosecutions and more homelessness.

Send a copy of this post to: Clifford Athey, to register your protest.

Hat Tip: Commenter for pointing us in right direction regarding email protests.

Saturday, January 9, 2010

A Little Freedom For Love?

From United States v. Reeves, decided last week by the Second Circuit:

"This appeal requires us to consider the validity of a condition of supervised release [following a prison term for possessing child pornography] that obligated Reeves, upon entry into a “significant romantic relationship,” to notify the United States Probation Department and to inform the other party to the relationship of his conviction. We conclude that the condition is unduly vague and not “reasonably necessary” to achieve the objectives of 18 U.S.C. § 3553(a)(2)....

"We easily conclude that people of common intelligence (or, for that matter, of high intelligence) would find it impossible to agree on the proper application of a release condition triggered by entry into a “significant romantic relationship.” What makes a relationship “romantic,” let alone “significant” in its romantic depth, can be the subject of endless debate that varies across generations, regions, and genders. For some, it would involve the exchange of gifts such as flowers or chocolates; for others, it would depend on acts of physical intimacy; and for still others, all of these elements could be present yet the relationship, without a promise of exclusivity, would not be “significant.” The history of romance is replete with precisely these blurred lines and misunderstandings. See, e.g., Wolfgang Amadeus Mozart, The Marriage of Figaro (1786); Jane Austen, Mansfield Park (Thomas Egerton, 1814); When Harry Met Sally (Columbia Pictures 1989); He’s Just Not That Into You (Flower Films 2009)."

Hat Tip: Simple Justice

Tuesday, January 5, 2010

Satire Anyone? Check Out

Victories in the war on sexophrenic hysteria are few and far between. The fight, however, is eternal. Those of you in need for a little satire to lighten the load are encourage to check out the following web site:

Warning: The material posted there isn't for everyone. You need humor, mature sensitbilities, and ability to understand that not everything that goes bump in the night is a monster. In sum, you need enough spirit to laugh amid the tears.

A foretaste? How about a post that carries the following headline? "There isn't enough bloodin the humanbody for a man to have an erection and think straight at the same time?" I wonder if that means the goofballs enacting wave after wage of legislation regarding so-called sex-offensives have erections. Certainly, they aren't thinking straight.

Haat tip: GB

Sunday, January 3, 2010

Stu Dornan: Good Lawyer In Omaha

If you are looking for a lawyer with common sense in Nebraska, try knocking on Stu Dornan's door. He just scored a temporary victory in the on-going battle against sex-offender hysteria.

Nebraska lawmakers want each and every so-called sex offender in the state, regardless of the offense of conviction, to register in an on-line data base. Presumably, that is so the good folks in the Cornhusker state can determine whether they are living next door to a predator. The problem with the Nebraska law is that if fails to draw the elementary distinction between those folks who pose a risk and those who do not.

I am willing to bet there are thousands of people in Nebraska who would, if truth be know, be designated as sex offenders if the truth about their youth were known. That is because Nebraska law, like the law of, I suspect, every other state requires folks to register for statutory rape.

Let us begin with fundamentals: Most often statutory rape is not really rape at all. A minor below the age of consent typically consents to sexual contact with a person a few years old. That is statutory rape. It is not a violent assault of one stranger upon another. Calling this rape is calling Juliet a victim, and Romeo a felon. It's silly, destructive and wholly at variance with our history. It was not until the late nineteenth century that many states raised the age of consent from 10 or 11 years of age to 15 or 16. This was done in response to pressure from the Women's Temperance Union, a group of progressives who sought to protect young girls from victimization as they flocked from farm to city in search of work.

Such laws made sense at the time, and something like these laws make sense now. Young girls should not be victimized. But do we really mean to classify young lovers as sexual predators? Do they belong in the same category as violent rapists? Of course not. Many Americans are sexually active before the age of consent. That does not make them criminals. Even in Nebraska.

But the climate of hysteria prevalent across the nation when it comes to sex offenses has gripped Nebraska. No matter what the underlying facts, a sex offender is dangerous. Period. Require all of them to register, regardless of the consequences.

Attorney Stu Dornan had the sense to see through this charade. He filed papers in Sarpy County District Court challenging whether a law that fails to draw obvious distinctions between dangerous and benign acts makes sense. District Judge William Zastera issued a temporary order barring the state from enforcing it. The claims will be litigated this week.

“We’re very pleased with the judge’s order,’’ said Stu Dornan, an Omaha attorney who has been challenging the law. “We’ll be able to litigate this further.’’

U.S. District Court Judge Richard Kopf had a chance last week to do some good as a jurist when the issue was brought to his court. But he tucked his tail beneath his robe and ran simpering to the back of the bandwagon supporting sex offense hysteria. He denied a request for similar relief, this one also filed by Attorney Dornan.

“You dilute the whole purpose of the registry by lumping everyone together,’’ Dornan said. He's right. Place a genuine threat in the same pool with one thousand other folks, and the threat is lost.

I like Dornan's pluck, and I wish him well this week. Hopefully Judge Zastera will show a little more sense that Judge Kopf.

Dornan is a former FBI special agent, and has been practicing law for 17 years. He is definitely one of the good guys. Folks in need of Omaha counsel should not hesitate in contacting him. Here is his telephone number: 402-884-7044

Saturday, January 2, 2010

Judge Richard Kopf's Road To Hell

I was inclined to greet news that a Nebraska federal judge issued an order enjoining the state from enforcing part of its new sex offender law with good cheer. "Finally," I thought, "a judge with the sense to see through the madness of these new laws." But then I read the decision, and I am now inclined to view United States District Court Judge Richard Kopf's decision as yet another road to Hell. This one is not even paved with good intentions.

The plaintiffs sought to bar Nebraska from enforcing harsh new requirements for the registration and monitoring of so-called sex offenders. State lawmakers approved new legislation to go into effect on January 1, 2010, as a means of retaining federal funding under the so-called Adam Walsh Child Protection and Safety Act of 2006, codified at 42 U.S.C. Section 16912. The act, known as SORNA to insiders, aspires to create a new national sex offender registry.

Nebraska did what all good states do when the feds threaten to turn off the spigot of free cash: it amended its laws to please federal paymasters. There's nothing unlawful about this, mind you. Constitutional lawyers don't regard this as the assertion of a federal police power, a notion anathema to the very concept of federalism. No, we maintain the police fiction that cash-strapped states are free to say no to generous federal funding: States that don't want to eat Uncle Sam's carrots are free to walk away.

But Nebraska did more than SORNA required. The state also enacted requirements not found in SORNA: namely, it required sex offenders who are not on parole or probation to sign consent forms permitting the state to search and seize their personal computers at will. It also barred non-supervised registrants from participating on social networking sites on which minors might appear.

The plaintiffs in the Nebraska action, who include the mother of a so-called offender, and an attorney who employs a so-called offender, sought to enjoin Nebraska from enforcing the law, and they filed papers in mid-December to block enforcement. On December 30, Judge Kopf issued an order upholding all aspects of the new Nebraska law except the provisions requiring unsupervised registrants to consent to searches of their computers and the barring them from participating on social networking sites.

The thinking goes something like this: Once an offender is not on probation or parole, he is free, and therefore the state cannot resitrict his Fourth Amendment right to be free from unreasonable searches and seizures. Neither can the state impede the right to free association and speech. I have news for you: Those rights will evaporate for sex offenders unless something changes.

Judge Kopf's decision is troubling for those who care about civil liberties.

The federal courts have long since concluded that registration is not punishment, a view that only a life-time appointee who must never look for a job, seek a place to live or worry about random knocks on the door by vigilantes can maintain. This repulsive abandonment of reason justifies registration by saying it is a mere regulatory requirement incident to conviction of certain offenses. Thus, it violates no constitutional right to be required to register, even without a particularized showing of harm. Let's just round up this new class of niggers and put them on a libidinal plantation.

Judge Kopf notes this line of cases and then concludes, somewhat paradoxically, that it is all right to require registration, a mere incident to conviction, but it is not all right to require registrants also to consent to random searches or stay off social networking sites. Don't get me wrong, I am relieved to see this constitutional line drawn. But my sense of the current climate of hysteria among lawmakers and judges is that this constitutional line will also be erased: what's a few random searches in the name of public safety if the folks were searching are already on the registry? And do we really want Uncle Ernie fiddling about on Facebook? You know the answer in terms of popular prejudice; it won't take long for the simpering class on the bench to fall into line.

And Judge Kopf is a cheerleader for the simpering class.

"In a democracy," he writes, "we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, '[i]f the people want to go to Hell, I will help them. It's my job.' Let's get at it."

It does not help that Judge Kopf cites Oliver Wendell Holmes for this eviscerated vision of a federal judge's role. Sure, the judge is literate, but to what end: cowardice? May I remind Judge Kolb that the judiciary is independent for a reason, and that the Bill of Rights was also enacted for a reason: Those reasons are common, Judge. To place certain things off bounds when lawmakers are moved by passion: that is what we refer to by the notion of checks and balances. Your job, Judge, is not to hide behind a black robe and then lose yourself in the bellowing mass of idiocy any legislative body can conceive in the dark of night. We expect more of a federal judge that passing the buck.

The Nebraska decision is a disgrace: A federal judge dancing glibly to Hell, and then all but laughing about it. Sad. Tragic. And worse, a sign of things to come. Reading between the lines, the judge is really sending a signal to Congress: Amend SORNA to do whatever you like, because, in the end, I will lack the courage to do anything at all to protect the rights of our new pariahs!
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