As some states reconsider sex-offender registries, an Alabama resident argues the state’s for-life requirements are too much

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As some states reconsider sex-offender registries, an Alabama resident argues the state’s for-life requirements are too much

By Cameron Kiszla/ July 15, 2017

A lawsuit before a federal appeals court may have broad implications for Alabama’s sex offender laws, which some critics claim are the harshest in the United States.

Montgomery resident Michael McGuire is suing the state of Alabama for relief from the residency restrictions, travel limits, sex offender registration and other punishments that accompany a conviction of a sexual offense. The case is before the 11th U.S. Circuit Court of Appeals.

McGuire was convicted of sexual assault in Colorado more than 30 years ago, before many of the modern punishments around sexual crimes were enacted into law, and his argument hinges on constitutional protections against punishments created after a crime is committed

After serving three years in prison and another on parole, he was released in 1989. He did not find himself in trouble with the law again until 2010, when he moved back to his native Montgomery to be closer to his mother and family.

Upon returning to Alabama, McGuire went to a Montgomery police station to confirm if, as a convicted felon, he was in breach of any state laws. It was at the station he learned he had to register as a sex offender.
He couldn’t live with his wife, mother or brother in Montgomery, because the state required him to stay away from kids, schools and daycares. Soon he was jobless and living under a bridge, with “Criminal Sex Offender” stamped in red letters on his driver’s license.
“He feels like he’s in prison again, a prison without bars,” said Phil Telfeyan, McGuire’s lawyer. “He is restricted where he can live, where he can take jobs. It’s like being a permanent prisoner.”

Alabama’s sex offender laws are among the most stringent in the nation. Home to more than 11,000 registered sex offenders, Alabama is among four states that put sex offenders on a mandatory registry for life and the only state that puts the sex offender stamp on a driver’s license.

And while there’s little sign the state’s voters want to ease up on those restrictions, policymakers in other states are beginning to question whether their registries are doing what they’re intended to do: make the public safer.

“Very few people on the registry are going to commit another offense, and it has nothing to do with the public knowing where they are,” Sandy Rozek, communications director for National Association for Rational Sex Offense Laws, an organization that supports making sex offender registries accessible only to law enforcement.
Critics of registries say they’re based on a flawed perception of how often sex offenders reoffend and where they come into contact with their victims.
“They’re kind of ‘feel good’ laws,” said Emily Horowitz, a professor of sociology and criminal justice at St. Francis College in New York. “We’re all deeply disturbed when harm is done, especially sexual harm, and they came out of emotionally charged, high profile instances.”

She pointed specifically to a study by Ira Mark Ellman, a professor of psychology and law at Arizona State University, and Tara Ellman, who looked at sex offender recidivism in their 2015 study “Frightening and High.” They found the most common statistic, that up to 80 percent of sex offenders reoffend, is a baseless accusation that has been repeated to the point of being held as fact, even by the U.S. Supreme Court.

“The likelihood of re-offense declines for each year after release without a new sex offense, even for offenders initially considered at the highest risk to re-offend,” the Ellmans wrote in their study.

Collateral Consequences Resource Center: Big win for sex offenders in PA as registration held punishment

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By Aaron J. Marcus July 20, 2017

Yesterday, in Commonwealth v. Muniz, __A.3d__ (Pa., July 19, 2017) (47 MAP 2016), the Pennsylvania Supreme Court held what for a long time has been obvious to many: that sex offender registration is punishment. Five Justices declared that Pennsylvania’s Sex Offender Registration and Notification Act’s (SORNA) “registration provisions constitute punishment under Article 1, Section 17 of the Pennsylvania Constitution — Pennsylvania’s Ex Post Facto Clause. The majority of the Court held in no uncertain terms:

1) SORNA’s registration provisions constitute punishment notwithstanding the General Assembly’s identification of the provisions as nonpunitive; 2) retroactive application of SORNA’s registration provisions violates the federal ex post facto clause; and 3) retroactive application of SORNA’s registration provisions also violates the ex post facto clause of the Pennsylvania Constitution.

This is a radical shift from prior Pennsylvania and federal law. Although the reasoning of the justices to get to this result is a little convoluted because several in the majority did not believe that the court even needed to address the Federal claim, the end result is clear. The decision directly affects roughly 4500 people in addition to Mr. Muniz.

Mr. Muniz was convicted in 2007 of indecent assault of a minor. 18 Pa.C.S. § 3126(a)(7). He fled at the time of sentencing and was not apprehended until 2014. During his absence, the Legislature passed SORNA, which greatly expanded the length and obligations imposed on those subject to sex offender registration. When Mr. Muniz was finally sentenced, SORNA applied and he was classified as a lifetime registrant. He challenged SORNA saying the law was punitive and cannot apply retroactively. Five Justices agreed.

Complicating the opinion slightly, for the law nerds amongst us, is how the five justices reach this single conclusion. Three Justices announced that SORNA is punitive under the Federal Constitution’s Ex Post Facto Clause. They applied the United Supreme Court’s test announced in Kennedy v. Mendoza-Martinez and found that although the Pennsylvania Legislature intended SORNA to be civil and non-punitive, the law imposes too many restrictions on individual liberty by making registrants report in-person, potentially hundreds of times, is too akin to historical punishments like shaming and probation, and pursues the same purposes as punishment – to punish and deter. Additionally, the court found that because SORNA imposes severe consequences on those “who in fact do not pose the type of risk to the community that the General Assembly sought to guard against” and includes “those convicted of offenses that do not specifically relate to a sexual act,” the law is excessive and over-inclusive. Thus, SORNA is “punishment” and cannot constitutionally apply retroactively.

Those same three Justices also concluded that although the same test is applied under Pennsylvania Law, Pennsylvania’s Ex Post Facto provision, the state clause is broader, and provides greater protection than the federal clause, thus ensuring that SORNA’s retroactive application independently violates state law as well.

Two Justices concurred in the result and much of the lead opinion’s reasoning, but got there in a slightly different way. Two Justices concluded that there was no reason to render a decision under the Federal Constitution and believed that the same result could be obtained under the State constitution exclusively. Although they concluded that “the United States Supreme Court’s interpretation of the federal ex post facto clause is entirely consistent with our understanding of Pennsylvania’s clause,” “nonetheless, as the lead opinion’s thorough analysis makes clear, applying the federal ex post facto standards also leads to the conclusion that SORNA is punitive and cannot be applied retroactively.” Although a little tricky, the narrowest reading appears to be that five justices agree that even if Pennsylvania law requires the application of identical tests as those applied federally, under an independent assessment of state law, the balance tips the scales in favor of punishment. Chief Justice Saylor was the lone dissenter.

The effect of the decision is to immediately alter the registration terms of thousands of registrants across Pennsylvania who saw their periods of registration increase dramatically on the date SORNA took effect. For those individuals, their periods of registration will likely revert back to the periods they were originally given at the time of their convictions. This means that hundreds if not thousands of people could suddenly find that they have completed their original registration terms and will now be removed from Pennsylvania’s registry altogether.

Finally, the Court says nothing about whether the decision has an effect on SORNA prospectively. However, if the law now says that SORNA is punishment, registrants, attorneys, and the courts will have to take a long hard look at the current statutory scheme and decide whether it can continue to be enforced in its current form, or whether certain protections typically attached to criminal sentences must now apply. This is a big win for registrants and those opposed to the misguided approaches Legislatures have taken to sexual crimes in recent years. Only time will tell how broad this ruling actually is.

Request for review by the U.S. Supreme Court – documents

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Request for review by the U.S. Supreme Court – documents

Petition for writ of certiorari by the State of Michigan

Opposition brief for John Does #1-5 by the Michigan ACLU and Michigan Clinical Law Program

Reply brief by the State of Michigan

News Coverage and Blog Stories

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News Coverage and Blog Stories

Washington Post | Aug. 26, 2016 | By Fred Barbash

Court says Michigan Sex Offender Registry Laws Creating ‘MORAL LEPERS’ | Aug. 26, 2016 | By Jacob Sullum

6th Circuit Says Mich. Sex Offender Registry Is Punitive and, Not Incidentally, Stupid

Mimesis Law | Aug. 26, 2016 | By Andrew Fleischman

Sixth Circuit: Michigan’s Sex Offender Registry Is Punitive

Simple Justice | Aug. 27, 2016 | By Scott Greenfield

The 6th Circuit Finally Said The Magic Word: Punitive

Michigan Radio | Aug. 26, 2016 | By Jack Lessenberry

Michigan’s sex offender law is unfair and probably UNCONSTITUTIONAL

Slate | Aug. 26, 2016 | By Mark David Stern

Appeals Court Issues Scathing Ruling Against Michigan Sex Offender Penalties

Should sex offenders be allowed to use Facebook? Supreme Court will decide

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Should sex offenders be allowed to use Facebook? Supreme Court will decide

Jordan Rudner, Washington Correspondent 12/10/16

WASHINGTON — Like tens of thousands of other Texans on the sex offender registry, Andrew, who lives in Dallas, is legally barred from using the vast majority of social media websites, including Facebook and Snapchat.

Every state places different restrictions on the rights of convicted sex offenders, limiting where they’re allowed to live, travel and work. And several, including Texas, also severely limit the websites that sex offenders are allowed to visit.

But on Monday, lawyers argued before the Supreme Court that such blanket bans may be a violation of their right to free speech.

Andrew, who was arrested for possession of child pornography in 2004, spent 10 years in federal prison. He’s still on parole today, his keystrokes and clicks are constantly monitored, and he isn’t allowed to own a smartphone. He knows his story isn’t a particularly sympathetic one.

“My choice cost me everything,” said Andrew, who agreed to discuss his case if he were referred to by his middle name only. “But it isn’t a sob story, it’s just a fact. I know I did this to myself.”

Since his arrest, Andrew’s wife has left him. Of his three children, only one will speak to him. He had to seek special permission from the court to activate a LinkedIn profile so that he could find another job, and he describes his boss as “probably my only friend.”

So he wishes he could rejoin Facebook, if only to temper his isolation. Unlike sex offenders, perpetrators of violence, kidnapping and even murder are still allowed on social media, he noted.

“I’ve been through treatment, I’ve paid my dues,” he said. “I’m no danger to anyone.”

Texas Attorney General Ken Paxton, who co-signed a brief in support of the North Carolina law now before the Supreme Court, disagrees. In the brief, Paxton and 12 other attorneys general argued that laws restricting the use of social media by sex offenders is a “practical solution to a practical problem.”

“The problem is that social media is a dangerous place for children and that registered sex offenders disproportionately commit additional sex crimes online,” the brief read.

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Illinois Court Strikes Sex Offender Park Ban

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Illinois Court Strikes Sex Offender Park Ban

By MARCIE SHIELDS February 14, 2017

(CN) – An Illinois appeals court ruled that a state law making it a crime for convicted sex offenders to set foot in public parks is unconstitutional because it can punish innocent conduct.

Friday’s ruling stems from the 2013 conviction of Marc A. Pepitone, a previously convicted sex offender who was arrested while walking his dog in a public park in Bolingbrook, Ill., a southwest suburb of Chicago.

A Will County jury found Pepitone, who was convicted in 1999 of predatory criminal sexual assault, guilty of being a child sex offender in a public park, in violation of an Illinois law.

As written, the law at issue makes it a crime for convicted sex offenders to attend concerts, picnics, rallies, or Chicago Bears games at Soldier Field, for example, or visit popular places like the Field Museum, the Shedd Aquarium, the Art Institute, the Adler Planetarium, or the Museum of Science and Industry, all of which are public buildings on park land.

Pepitone was sentenced to 24 months of conditional discharge and 100 hours of public service and given a $400 fine, but he appealed the conviction, claiming the banishment of sex offenders from public parks is “unconstitutional on its face because it bears no reasonable relationship to protecting the public.”

Pepitone argued in his appeal that the law sweeps too broadly and therefore must be struck down. He said, “The specific issue is . . . whether an all-out banishment, of all child sex offenders, from all public parks . . . at all times. . .is a reasonable means of achieving the legislature’s stated goal of ‘protect[ing] users of public parks from child sex offenders and sexual predators.’”

The Illinois Appellate Court’s Third District agreed with Pepitone on Friday in a 2-1 ruling and reversed his conviction of being a child sex offender in a public park.

“We hold that section 11-9.4-1(b) is facially unconstitutional because it is not reasonably related to its goal of protecting the public, especially children, from individuals fitting the definition of a child sex offender or a sexual predator,” Justice Mary McDade wrote for the majority. “Nor is it drafted in such a way as to effect that goal without arbitrarily stripping a wide swath of innocent conduct and rights he has as a citizen and taxpayer from a person who has paid the penalty for his crime.”

McDade said the sweep of the law “is extraordinary.”

“Section 11-9.4-1(b) is an outright ban on all individuals with certain sex offense convictions from public park buildings and public park property without any requirement that anyone—particularly a child—be actually, or even probably, present,” the ruling states.

The appeals panel’s majority found that the law “criminalizes substantial amounts of innocent conduct” and “makes no attempt to assess the dangerousness of a particular individual.”

Quoting a previous ruling by the Illinois Supreme Court, McDade wrote, “’Statutes that potentially punish innocent conduct violate due process principles because they are not reasonably designed to achieve their purposes.’”
Justice Robert Carter dissented, disagreeing that the state law is facially unconstitutional.
“By keeping sex offenders who have committed sex offenses against children away from areas where children are present, the legislature could have rationally sought to avoid giving those sex offenders an opportunity to reoffend,” he wrote. “Whether the statute could be more finely-tuned to accomplish that goal is a question for the legislature, not for the courts.”
In December, a federal judge in Indiana struck down part of a similar city ordinance that prohibited sex offenders from loitering near parks, schools and other places children most commonly frequent, calling the ordinance “unconstitutionally vague.”

Justice denies Michigan’s appeal to halt sex offender ruling

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Justice denies Michigan’s appeal to halt sex offender ruling

Associated Press , WZZM 11:18 AM. EST November 15, 2016

LANSING, MICH. – A U.S. Supreme Court justice has rejected Michigan’s request to halt a lower court decision that found the state unconstitutionally put additional restrictions on sex offenders long after their convictions.

Justice Elena Kagan denied Tuesday the emergency appeal for a stay.

“In August, the 6th U.S. Circuit Court of Appeals said changes to Michigan law in 2006 and 2011, which included retroactively restricting sex offenders’ movements near schools, penalize offenders as “moral lepers.”

“In August, the 6th U.S. Circuit Court of Appeals said changes to Michigan law in 2006 and 2011, which included retroactively restricting sex offenders’ movements near schools, penalize offenders as “moral lepers.”

Schuette’s office couldn’t immediately be reached to comment.

Michigan has the country’s fourth-largest sex offender list, with more than 42,000 registrants.

Michigan prohibits all registrants from living, working or loitering within 1,000 feet of school property.

Edmonton judge rules national sex offender registry is unconstitutional (Canada)

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Edmonton judge rules national sex offender registry is unconstitutional for sex offenders

Tony Blais October 26, 2016 | Last Updated: October 26, 2016 7:12 PM MDT

An Edmonton judge has ruled that the national sex offender registry is unconstitutional as it is “over broad and grossly disproportionate” and violates people of their charter rights.

In a recently released decision involving the case of an Edmonton man convicted of two sexual assaults, Court of Queen’s Bench Justice Andrea Moen found the Sex Offender Information Registration Act removed judicial discretion to refuse to place offenders who present no risk of reoffending on the registry.

“In my view, the mandatory registration for all sex offenders upon conviction of two or more offences, without regard to the seriousness of the offences or the offender’s propensity to reoffend is over broad,” said Moen, noting the goal of the legislation is to help police investigate past crimes and prevent new ones.”

“In my view, including offenders on the registry who have little to no chance of reoffending bears no relation to protecting the public. Subjecting all offenders, regardless of their future risk, to onerous reporting requirements, random compliance checks by the police and internal stigma, goes further than what is necessary to accomplish the goal of protecting the public, and is therefore over broad,” said Moen.

The judge’s decision, which would not be binding on courts across the country, but could be persuasive, is not final yet. She has given the Crown, which opposed the sex offender’s application, until Nov. 30 to return to court with further charter arguments or a possible legal remedy in the case.

On June 26, 2015, Eugen Ndhlovu, 25, pleaded guilty to two counts of sexual assault and was sentenced to six months in jail followed by three-years probation. He would also have been placed on the national sex offender registry for life; however, he challenged the constitutionality of the mandatory lifetime registration.

Court heard that on March 12, 2011, Ndhlovu was invited by a woman, who can’t be identified under a court-ordered publication ban, to attend a party billed on Facebook as a highly sexualized Jersey Shore event that was to have a stripper pole available.

Ndhlovu, who was born and raised in Zimbabwe, had declined because he was working the next day, but the woman insisted on his attendance, arranged a ride for him, and told him he could stay overnight and get a ride to work the next morning.

The pair and a mutual friend, who also can’t be identified, began drinking at the home that evening and, as the night progressed, the two women each reported instances where Ndhlovu sexually touched them without their consent.

Court heard Ndhlovu touched each woman’s buttocks while the three were posing for a picture. He also placed his hands on the friend’s thighs and buttocks during a conversation in the kitchen.

In the early morning, the first woman woke up to find Ndhlovu’s fingers inside her and told him to stop. He tried again, telling her it would “feel good.” She pushed him away and he left the home.

Ndhlovu later told police he did not remember the whole night, but pleaded guilty to sexually assaulting both women.

At sentencing, Moen ruled Ndhlovu posed a “very low” risk to reoffend as he had taken responsibility for his actions, showed great remorse and had no prior criminal record.

Ndhlovu returned to court to argue that a lifetime Sex Offender Information Registration Act order was “coercive” and “grossly disproportionate,” Moen agreed and ruled it would deprive him of his liberty for the rest of his life.

“The law as it stands will now place Mr. Ndhlovu on police radar for the rest of his life any time a sexual offence is committed by a black man of average height in his neighbourhood,” said Moen, adding that requiring him to be on the registry “bears no connection to the object of assisting police officers in the investigation or prevention of future sex crimes.”