"America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves." ~Abraham Lincoln

Friday, August 29, 2014

Saturday, August 23, 2014

Links of Interest from Florida Action Committee



FDLE Ignores Request from FAC

Over two and a half months ago the FAC send a request to FDLE requesting a comprehensive update of the new laws and requirements they will be enforcing against registrants. The FDLE ignored our request. Today, a second request was sent to the FDLE. We anxiously await their reply. The text of the letter appears below.  August 21, 2014     Florida Department of Law Enforcement (FDLE) Florida Offender Registration &...

More on the Florida Sex Scams/Stings

August 21, 2014
At the end of this post is a re-post of a post on Lenore Skenazy’s blog; FreeRangeKids.com Lenore was the keynote speaker at this year’s RSOL National Convention and I’ve been following her since. Not only are her posts entertaining, but I’m so appreciative that an outsider (someone NOT on the registry or with a family member who is) can observe what’s going on and provide an objective account of how ridiculous...

Man in Michigan Assaulted Because He Was on Registry

Three men assaulted and beat another man simply because he was listed on the sex offender registry. On August 18th police responded to a hospital in Flint, Michigan where a man reported that three men from his neighborhood beat him solely because of his presence on the registry. Source Also this week, an incarcerated registrant was murdered in Kentucky. Source...

Time For A Change

August 18, 2014
The following was a series of posts from Phil Locke on The Wrongful Convictions Blog. The series was very well documented and contained links to a bunch of useful information, so I decided to copy and paste it as-is into our site in order to share the information. The source for these articles can be found here. The History of Sex Offender Registries in the US Sex offender registration in the US all began with the Jacob Wetterling Crimes...

Comments not so one-sided as Dallas considers Sex Offender restrictions.


“Sex offenders can’t change” is the motto of profit.


Thursday, August 14, 2014

Dallas Considering Residency Restrictions

Posted by on August 7, 2014 in Articles

 http://floridaactioncommittee.org/dallas-considering-residency-restrictions/

The article below appeared in the Dallas News. Apparently, Dallas will begin studying residency restrictions in preparation of deciding whether or not to pass residency restrictions for registered sex offenders.

The popular but always backfiring sex offender management technique has consistently been proven ineffective or even counterproductive.

Despite the facts, our concern is that Dallas politicians will fold under the political traction they can get by further punishing those labeled “sex offenders” (whether deserving or not) and pass an ordinance regardless.

We strongly encourage you to reach out to Texas Voices (http://texasvoices.org/ or 877-215-6688) to find out what you can do to share insight and information with the decision makers.

Source

The Dallas City Council will consider a plan to prohibit sex offenders from living near schools, parks and other places where children gather.

City Council members, meeting Wednesday, said they were interested in looking at ways to further protect children from predators. But nearly all said they need more information on the effectiveness of buffer zones to prevent sex offenders from living in certain areas.
The idea, which has been implemented in other cities, will head to a council committee for further consideration.

“I do support sex offenders being responsible for their actions,” council member Jerry Allen said. 

“But the real questions I end up coming back to are: Will this ordinance increase public protection?”
Mayor Mike Rawlings has been pushing the idea, which would bar those individuals from living within a certain distance of kid-friendly areas. The proposal is also backed by Dallas police.

More than 3,300 registered sex offenders live in Dallas, though officials said those currently living near the areas in question could potentially be grandfathered in.
A couple of Dallas residents spoke out against the proposal.

Josh Gravens, who’s married and has five children, said he’s been on the sex offender registry for 15 years. Though he didn’t get into specifics, the northeast Dallas resident said he was a 13-year-old kid “who made a mistake.”

Gravens said there are many other registered sex offenders who fit his description, and he said the re-conviction rates for sex offenders are quite low. He said an ordinance like the one Dallas is considering would be devastating to him and his family.

“We’re enjoying the great things that Dallas is giving us,” he said. “I wouldn’t want to be forced out of this city.”

Ordinance specifics — such as how big the buffer zone would be — haven’t been worked out. In coming weeks, council members will evaluate how other cities have fared with such rules and whether they would make sense in Dallas.

“What I’m hearing from this group is that there’s enough interest that we need to do some more work on it,” Rawlings said.
  
Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

Castration as treatment in FL sex offense cases.


The article concerns the denial of an inmate’s request to be physically castrated. However, it discusses the use of chemical castration as a form of sex offender management in Florida.
In Florida, castration is an acceptable form of sex offender management, and that is separate from the punitive sentence imposed.

Florida Judge Denies Sex Offender’s Request to Be Physically Castrated

By Jonathan Kendall Mon., Aug. 4 2014 at 12:50 PM

Lester Leroy Williams is serving ten years in prison for sexually battering a child. Back in 2008, he was also sentenced to 4.5 years of probation. Recently, the 35-year-old Williams made a bizarre request: He wants the state to physically castrate him.In a letter Williams wrote at the Union Correctional Institution in Raiford, he asked Fifth Judicial Circuit Court Judge Hale Stancil to modify his sentence to include castration at the expense of the state. 

But Stancil denied the unusual request this past Tuesday, stating his court didn’t have jurisdiction to rule over the case.

“In 32 years, I have never had this request before,” said Stancil, who spoke about the case for the first time to New Times. “I know there is chemical castration, but I’ve never had an inmate ask to be physically castrated before. I don’t think I have authority as a judge to order such a thing.”

Williams

The story was first reported in the Ocala Star Banner. Florida already allows certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment as part of their rehabilitation. MPA, an artificial hormone, is normally used to treat symptoms of menopause in women, but when used by men, it decreases testosterone to pre-puberty levels.MPA has been used on sex offenders for years as a way of reducing the chances of recidivism by diminishing the sexual urges of men who have long histories of committing sex crimes.

According to Florida law, courts must sentence repeat offenders of sexual battery to MPA treatment but may choose to administer it to first-time offenders. The treatment does not replace or reduce any other penalty the court could impose, and the courts can order the treatment to last up to life.

The Florida Department of Corrections must begin MPA treatment one week before an incarcerated sex offender is released. The consequences for not going through with the MPA treatment are severe for offenders — a second-degree felony, punishable by up to 15 years in prison, a $10,000 fine, or both.

The law stipulates though that instead of undergoing the chemical form of castration, sex offenders may — of their own volition– ask a court for physical castration, which is what Williams has done. Though the legal leeway seems to exist, it is rarely chosen — Williams may be the first in Florida to request it even though he isn’t even required to have MPA treatment.

“Sex offenders are wretched,” said Maryam Sweirki, 25, a Miami advocate for victims of sexual assault. “If he can’t handle his penis, then I’m for his decision to take his weapon away.”

However, critics of castration believe it to be a cruel and unusual punishment that violates human and reproductive rights; with other critics arguing the law that allows for MPA castration, though it applies to both genders, is unequal in punishment because it has a greater impact on males. Some of the side-effects related to the drug (besides decreased sexual urges) are: a loss of body hair, hot and cold flashes, impotence, depression, thrombosis, and weight gain.

Though it has been shown to decrease the number of reoffenders, some opponents further argue that castration isn’t a panacea for all sex offenders because some of them are motivated to sexually abuse because of intense feelings of hatred and hostility, rather than sexual desire.

As it stands, the laws regarding castration apply to all convicted sex offenders across the state of Florida. Though Williams will not be physically castrated for the time being, if he keeps requesting it and appeals Stancil’s decision, he may get his wish.



Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

Is Florida Sheriff that arrogant or just ignorant?


Posted by on August 7, 2014 in Articles


This past Tuesday, Polk County Sheriff Grady Judd led a press conference proudly announcing the arrest of 132 “Bad Guys”, “Perverts”, “Pedophiles”, “Predators”, etc. The grandstanding Sheriff, flanked by Sheriffs from other counties, stood next to a board showing the mugshots of those arrested as he went on a fear instilling tirade.

What the Sheriff didn’t tell you was that of the 60 charges imposed on the 13 men arrested in his county; 10 were eventually dropped and that several were not even pursued by prosecutors. (see: http://www.theledger.com/article/20140805/NEWS/140809659?p=2&tc=pg&tc=ar)

What the Sheriff also didn’t tell you was that his office and others are the subject of several news investigations into claims of entrapment and other violation of legal policies. (see: http://www.wtsp.com/story/news/investigations/2014/07/01/sheriff-grady-judd-sex-sting-records/11929091/)

Sheriff Judd is the same guy who infamously charged  12 and 14 year old girls with felonies after the suicide death of a third girl. After that arrest, he proudly posted their mugshots and descriptions and held another grandstanding press conference. When asked whether it was necessary, he said of the two young girls; “We decided that we can’t leave her out there. Who else is she going to torment, who else is she going to harass?”   as if there was some imminent danger to the children in the community. In the end the charges against the girls were dropped because after a month of combing through social media and chat logs, authorities found no evidence of cyberbullying. (see:  

http://www.slate.com/articles/news_and_politics/doublex/2014/04/rebecca_sedwick_suicide_sheriff_grady_judd_never_should_have_arrested_katelyn.html)

With respect to the sex offender stings here, in many cases they find individuals posting ads on Adult websites where you must be 18 years old to participate. They engage the men in sexually stimulating conversation for days or even weeks before disclosing that they (the person they are pretending to be) is underage and then continuing to bait the men and encouraging them to continue along.  Many had no intention of soliciting a minor but were entrapped. (see: http://floridaactioncommittee.org/are-police-catching-pedophiles-or-creating-straw-men/).

Apparently, based on the number of charges being dropped and individuals not being prosecuted, Prosecutors are agreeing.

All this leads to a more important question; what does this accomplish? The investigation that Sheriff Judd was touting was a three month investigation that spanned several counties. It took the resources of Federal, State, county and local police and ultimately prosecutors. Undoubtedly it took a lot of time and a lot of money to bait and arrest these 132 individuals who “could have” gone for a fictional victim. But aren’t there enough non-fictional victims out there that need resources? And of these 132 people; how many will actually be prosecuted? And how many tens of thousands of people did they have to bait in the three month process to find 132 that warranted arrest?

Could this just be another case of those who scream the loudest? (see: http://floridaactioncommittee.org/those-who-scream-the-loudest/)

Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

UNO Researchers Document Harm Done by Nebraska Sex-Offender Law

Posted by on August 7, 2014 in Articles

Ground-breaking research into why most former sex offenders do not reoffend concludes that Nebraska’s policy of putting every registered citizen on a public website harms families and might contribute to the very problems that the law was intended to deter.

“ . . .  We have found that sex offenders in this study, representing predatory pedophiles to possessing child pornography, have not re-offended since their initial crime of conviction.  Most attribute this to the informal social relationships they have created or maintained since conviction.  Surprisingly, many have added members of the research team as more formal sources of social support, and attribute our interest in their lives as an added factor in their desistance,” according to a report on the study released today.

“Most importantly, we have found that registrants’ lives change over time, thus affecting their need for social support to continue desistance,” the report said.
Not one of the registered citizens in the study credits harsher laws for desistance from re-offense. In fact, the report said, harassment by law enforcement and others as a result of the law can contribute to conditions that make re-offense more likely.

The ongoing study is being conducted by Lisa Sample, Ph.D., and doctoral candidate Danielle Bailey at the School of Criminology and Criminal Justice, University of Nebraska-Omaha. Two-hundred twenty-one registered Nebraska citizens have come forward to participate in the study. So far, 155 of them have been interviewed.

“The questions asked during these interviews were meant to uncover how these sex offenders had managed to defy media stereotype and live in the community without sexually reoffending.  A common response across all subjects was that their desistance was mostly attributed to the help of family, friends, and/or their faith,” the report said.

"With this in mind, the study was then extended to registrants’ family members and friends to 1) triangulate information provided to us by registrants, and 2) give registrants’ loved ones a chance to voice their thoughts on what it is like living with people who are so socially stigmatized.”

To date, 30 family members of registered citizens have been interviewed. Five-thousand pages of interview material have been transcribed.

The “sex offender” label shadows everyone in the family, in that there is a constant state of paranoia and fear among spouses/partners about being judged, being labeled, or being ill-treated by members of the public,” the report said.

The research shows how misguided law, poor-quality news reporting and knee-jerk policymaking – all based on inaccurate information about former offenders – conspire to damage and destabilize families. In spite of research that shows former sex offenders have low rates of re-offense, news media stereotypes paint every individual on the public website as a predatory danger. Such inaccurate reporting then encourages institutions like churches, gyms and schools to issue blanket bans of former offenders, many of whom are parents and are thus barred from participating in their childrens’ lives, according to the study. Because the study is finding that social networks and strong family ties help former offenders desist from reoffending, current Nebraska law is eroding the factors that help prevent re-offense.

“The stigma of the “sex offender” label put forth on public registries creates single parent households, as responsibilities for child care and employment fall to the spouses/partners of registrants who are not allowed to participate in their own family activities as they did prior to conviction,” the report on the research said.

“Children often react to the prohibition of their registrant parent from their activities with anger, acting-out behaviors, and/or socially isolating themselves.”
The study found that Nebraska’s draconian law, enacted as LB 97 and LB 285 of 2009, has had the effect of creating a strong community of “social refugees” among former offenders in Nebraska. Advocacy groups established after the law’s passage as well as the researchers at UNO have therapeutic value for the registered citizens.
“Registrants and their family members have responded to their ‘refugee’ status by creating their own organizations and advocacy groups that engender a sense of collective identity that thwarts some of the isolation they feel,” the report said.
The study’s conclusions:
  • There are negative consequences socially, professionally, and parentally for being on the public registration website, and these consequences are not only felt by registrants but also by their spouses/partners, parents, and children.
  • To the degree to which these consequences exacerbate the senses of loneliness, anxiety, isolation, and fear associated with sexual offending and disrupt family and friend relationships, public notification may exacerbate the behaviors it is meant to deter.
  • In fact, no registrants mentioned sex offender laws or their prohibitions from public spaces as a motivating factor in their desistance from crime.
  • Sex offender laws have, however, created a sense of a collective identity among those in this sample that helps abate their social isolation and feelings of rejection.
  • In contrast to juvenile delinquency literature, deviant peers among the adults in this sample provide them with social support that helps them avoid behavioral triggers and manage their behaviors as opposed to encouraging them.
  • This study demonstrates the importance of social integration in ending sexual reoffending.
  • Findings also suggest the need for some social support interventions for those living with or related to registered sex offenders who are also experiencing social isolation, rejection, and stigmatization not for a crime they committed but simply because they live with someone who committed one.
  • Changes to child abuse mandatory reporting laws would allow families to seek therapy and counseling without fear of legal reprisals for the thoughts and feelings they share.  In this way, perhaps these changes can be seen as preventative crime control measures to ensure the children of registrants do not grow up to be angry, anxious, and frustrated criminal adults.

Click here to read the full report.


Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

MUST SEE: Officers bend rules to boost sex sting arrest totals

Posted by on August 8, 2014 in Articles


http://floridaactioncommittee.org/must-see-officers-bend-rules-to-boost-sex-sting-arrest-totals/

You must see the video that accompanies this news article.
 
Police in Florida have been doing the unconscionable for years. Taking completely innocent men and luring them into a crime.
 
In the case of too many Florida sex offender sting operations, not only are the the underage victims fictional, but the offenses they are accused of committing are too. Police place or respond to listings on adult website, engage with someone who had absolutely no intention of soliciting a minor, then pull a fast one on an innocent person by saying they are actually underage. Even if the target tries to back away once they shockingly discover the claimed age, they police continue vigorously provoke sexually explicit conversation just so they can get a response.
 
No only do the officers know that the significant stigma of being charged with a sex offense completely throws “innocent until proven guilty” out the window, but they also know that the threat of 20+ years in prison will cause anyone to plead guilty… even someone who has done nothing wrong! It’s easy, it makes great headlines, it gets funding… who cares if it destroys the lives of innocent men? These sick predators (the Police, not the accused) don’t care!
 
WTSP, Tampa’s Channel 10 CBS affiliate, reporter Noah Pransky is among the first to have the courage and journalistic integrity to uncover and expose the horrific injustice taking place. The Florida Action Committee is grateful this horrible practice is being exposed and hopes more people will step up and demand the exoneration of the thousands of innocent men who are unjustly accused.
 
Mr. Pransky’s article appears below:
 
POLK COUNTY, Florida – In the decade since Chris Hansen and “To Catch a Predator” popularized Internet sex stings, more than 1,200 men in Florida alone have been arrested, accused of preying on underage teens and children for sex.
 
But as the stings put more and more men behind bars, detectives are working harder and harder to keep up their arrest numbers. And the tactics they’re using to put alleged sexual offenders in jail are sweeping up large numbers of law-abiding men, too.
 
A yearlong investigation by 10 Investigates reveals many of the men whose mugshots have been paraded out by local sheriffs in made-for-TV press conferences were not seeking to meet children online. Instead, they were minding their own business, looking for other adults, when detectives started to groom and convince them to break the law.
 
While detectives used to post ads suggesting an underage teen or child was available for sex, they now routinely post more innocuous personal ads of adults on traditional dating sites. 

When men – many of them under 25 with no criminal history – respond, officers switch the bait and typically indicate their age is really 14 or 15 years old. However, sometimes the storyline isn’t switched until the men, who were looking for legal love, already start falling for the undercover agent.
 
According to arrest affidavits inspected by 10 Investigates, law enforcement is also now routinely making first contact with men who have done nothing wrong, responding to their ads on dating sites like PlentyOfFish.com. After men start conversing with what they think are adults, officers change the age they claim to be, but try to convince the men to continue the conversation anyway.


Officers bend rules in sex stings to boost arrest totals.
 
Other examples include undercover officers showing interest in a man, then later introducing the idea of having sex with the undercover’s “child.” If the men indicate they weren’t interested, they were still often arrested for just talking to the adult.
 
Critics of the stings, including a number of prominent Tampa Bay law enforcement leaders, tell 10 News the operations make for better press conferences than they do crime fighting. Many of the men who are arrested for sexual predator crimes see little jail time.
 
But Polk County Sheriff Grady Judd, when asked about over-aggressive detectives, instead went on the offensive: “The concern (I have) is that you inflate your investigative reporting to make it glitzy.”
 
Judges have also been very critical of some of the tactics used in the stings, which violate Internet Crimes Against Children guidelines. Among the comments from judges in recent entrapment decisions (case numbers withheld to protect the defendants):

  • “It was the agent who repeatedly steered the conversation back to sexual activity with a minor.”
  • “The government made a concerted effort to lure him into committing a crime.”
  • “The undercover officer failed to follow the procedures …”
  • “The law does not tolerate government action to provoke a law-abiding citizen to commit a crime.”
The judge in one dismissed case criticized the undercover officer for failing to follow procedures and “the officer controlled the tone, pace and subject matter of online conversation, pushing toward a discussion of sexual activity.”
 
The blurring of legal and ethical lines has led many agencies such as the Pasco County Sheriff’s Office, the Hillsborough County Sheriff’s Office, and most of South Florida to focus their cybercrime resources on other areas of online abuse. Instead of conducting “To Catch a Predator”-style stings, they spend their time and effort on areas where there are known victims and children at immediate risk, like child porn and sex trafficking.
 
But the time- and resource-intensive predator stings are still alive and well in West/Central Florida, operating under the watchful eye of ICAC task force leader Judd.
 
Grady Judd’s ‘favorite topic’
 
Sheriff of Polk County since 2005, Judd has made it clear that targeting sexual predators is his top priority. He called hunting predators his “favorite topic” at a recent predator sting press conference, and he has invited national media outlets along for some of the operations. 

The predator stings have been featured in three MSNBC specials as well as a recent CNN series.
 
But Judd has been much less forthcoming when it comes to questions of how detectives lure in their targets and whether innocent men are getting swept up to.
Judd has failed to provide public records to 10 Investigates on the following issues:

  • The language in the ads detectives post.
  • How detectives responded when innocent men showed no interest in speaking to teens.
  • If detectives are doing the stings because there is a problem of teens looking for adults online.
  • How many men get baited before detectives find someone to investigate.
PREVIOUS: Judd secretive on sex stings (7/1/14)
 

PREVIOUS: Law enforcement refuses to turn over records on sting (3/14/14)
 
Judd said the overwhelming majority of men who communicate with detectives do the “right thing” and either end communication or report the officer posing as an underage teen — or parent offering up a child — to authorities. But he won’t even turn over those communications over, a possible violation of Florida State Statute 119.
 
Judd says the records are exempt from state records laws because all of those men are still “under investigation,” for they may surface in future stings. However, that indicates Judd – and other law enforcement leaders around Tampa Bay and Sarasota who have now used the same exemption to withhold records – have active investigations open on hundreds, if not thousands, of men who did nothing more than legally communicate with adults on legal websites.
 
The state’s best-known lawman also showed little concern for due process during a Tuesday press conference to tout arrests since March in predator-style stings. He pointed to 132 mugshots on a giant posterboard and called the men “sexual predators.”
 
But when 10 Investigates pointed out some of the men had already been cleared of charges, he said they were still fair game because “we have a very liberal – a very forgiving – criminal justice system.”
That system may give defendants the benefit of doubt and assume “innocent until proven guilty;” but Judd makes sure the mugshots and stigma of being arrested for a sex crime haunts the men for the rest of their lives.
 
Critics point out many of the 1,200 men who are ultimately arrested in Florida and called “sexual predators” weren’t preying or even looking for kids; many were seeking adults. The majority of them were in their teens or 20s at the time, and approximately 97 percent of the men had zero history of any sexual crimes or accusations.
 
“The biggest waste ever”
 
While countless West/Central Florida law enforcement agencies have gotten involved in the predator stings, including the sheriff’s offices in Polk, Pinellas, Manatee, Citrus, and Sarasota, some agencies were noticeably absent at Judd’s season-ending press conference.
Judd indicated the Hillsborough sheriff’s office was a part of the operation, but was unable to attend. 

However, an HCSO spokesperson said the the agency has not been a participant.
 
While HCSO has a full-time “Internet Predator” unit, it has been reluctant to dedicate the huge resources needed for a “To Catch a Predator”-style sting. Instead, HCSO detectives are focused on offenders that are participating in “the proliferation of child porn,” focusing on infants and young children who are exploited.
 
Hillsborough detectives say those type of arrests tend to yield better conviction rates, longer prison terms, and also provide law enforcement other leads on areas of crime like sex trafficking.
 
Pasco Sheriff Chris Nocco has adopted similar priorities, saying his cybercrime unit is extremely proactive and focused on the areas of the worst abuse.
 
“Any way you can take a sexual predator off the street is tremendous,” Nocco said. 

“Especially those that are online looking at child pornography … they may do something physically against a young little kid.”
 
Pasco also spends a lot of time and effort focused on teen-on-teen cybercrime because it can often be addressed before it ruins a person’s life permanently.
 
Nocco was complimentary of ICAC, but says he’s not a huge fan of the “To Catch a Predator”-style stings, saying the prosecutions often don’t hold up.
 
“You spend your resources, you arrest somebody and then they walk right out. It’s the biggest waste ever,” Nocco said.
 
ICAC stings typically cost tens of thousands of dollars – sometimes close to $100,000 – in costs and officers’ time, and that doesn’t include the costs to prosecute and jail defendants.
10 Investigates found light plea sentences are sometimes offered because the suspects simply aren’t considered dangerous offenders, contrary to Judd’s claims.
 
Local law enforcement leaders also refused to turn over ICAC guidelines, claiming they were confidential investigative material. But a copy 10 Investigates obtained through court records indicates the online undercover stings, which typically don’t involve real children or victims, are not even specified in the list of priorities agencies are supposed to target:

  1. A child is at immediate risk of victimization.
  2. A child is vulnerable to victimization by a known offender.
  3. A known suspect is aggressively soliciting a child(ren).
  4. Manufacturers, distributors or possessors of images that appear to be home photography with domiciled children.
  5. Aggressive, high-volume child pornography manufacturers or distributors who either are commercial distributors, repeat offenders, or specialize in sadistic images.
  6. Manufacturers, distributors, or solicitors involved in high-volume trafficking or belong to an organized child pornography ring that operates as a criminal conspiracy.
  7. Distributors, solicitors and possessors of images of child pornography.
  8. Any other form of child victimization.
Almost all of South Florida’s law enforcement agencies have moved away from the stings as well. The Broward County Sheriff’s Office, which is in charge of the South Florida ICAC task force, told 10 Investigates it was time for the agency to move on to other areas of cybercrime fighting.
 
The “other” victims
 
There may be no excuses for men who victimize children or those that look for underage victims online.
 
However, it’s easier to make the case for the men who were swept up in the stings when they were looking online for adults.
 
“(My son) was stalked by law enforcement for three days,” said the mother of a 22-year-old arrested in one of the stings. 10 Investigates is protecting the identity of her family.
 
The son was on Craiglist’s personals pages, looking to meet other adults. He responded to a “no strings attached” ad for a 26-year-old woman. He says her story changed a few times, including the claim she was only 13, but he was skeptical.
 
He spoke on the phone to the undercover and she sent a photo, in which she was wearing a wedding ring. He said he was sure she was an adult (she was), so he made plans to meet her. When he arrived, he was arrested. He was later sentenced to two years of house arrest and a lifetime as a registered sex offender.
 
“He had a life of promise; he had an education,” his mother said. “That’s all been shot.”
 
She says her son is paying the price of opportunistic lawmen.
 
PREVIOUS: Law enforcement may have entrapped men illegally (1/30/14)

Board-certified defense attorney Anthony Ryan says law enforcement officers have become experts in coercing innocent men into breaking the law.
 
“They are really good at subtly turning conversations and normal statements into sexual 

innuendo – whether or not the other side intended that,” he said.
 
Ryan, who has a practice in Sarasota, just got a 23-year-old client’s case dismissed in Manatee. A judge ruled deputies entrapped his client, writing that their tactics had “no place in modern day law enforcement.”
 
Ryan adds that officers are pushing the boundaries further and further to keep up their arrest numbers and keep the federal ICAC grants flowing. And responding to legal ads on legal dating sites crosses the line.
   
“Once the low-hanging fruit is sort of gone, taken off the tree,” Ryan said, “there’s still pressure from high above to justify these actions.”
 
Tune in to 10 News on Thursday and Friday nights at 11 p.m. for the two-part investigation.

Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

Sex Crimes Attorney Tampa FL, Florida Sex Offense Lawyer William Hanlon

Wednesday, July 30, 2014

Florida becomes the harshest state for sex offenders

http://america.aljazeera.com/watch/shows/america-tonight/articles/2014/4/5/florida-becomes-theharsheststateforsexoffenders.html#

ND: Federal judge says sex offender suit can continue

Posted by on July 28, 2014 in Articles

http://floridaactioncommittee.org/nd-federal-judge-says-sex-offender-suit-can-continue/

FARGO, N.D. (AP) – A judge has rejected a motion to throw out a lawsuit filed in December by two-dozen sex offenders who are civilly committed to the North Dakota state hospital.
The complaint accuses the state of favoring unnecessary punishment over treatment and violating the rights of the plaintiffs by depriving them of a realistic opportunity to be released.
The suit seeks class-action status for all people who have been civilly committed to the state hospital as sexually dangerous individuals.
The state had argued that the suit should be dismissed because the federal government should not be allowed to review the decisions of state district courts.

Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

Those who scream the loudest…

Posted by on July 28, 2014 in Articles

 http://floridaactioncommittee.org/those-who-scream-the-loudest/

There’s an old saying that begins, “those who scream the loudest…”, which generally ends with the implication that they themselves have the most to hide.

Perhaps they feel that vocal opposition and the implication that they are “doing good” serves as a counterbalance to something “really bad” they are also doing? Maybe they point fingers at others to deflect the focus from themselves so they can skate by undetected? Or maybe they have a psychological need to demonize others because they are simply dirty hypocrites?
There are many infamous examples; from preachers to politicians and everyone in between. 

Remember Jim Baker, Jimmy Swaggert and Ted Haggard, who preached morality and warned against sin, all the while they were stealing from their congregations and/or cheating on their wives?  How about NY Governor Elliot Spitzer, who as the State’s Attorney General cracked down hard on prostitution, then got outed as a recurring client of an escort agency?

Our State has plenty of it’s own vocal hypocrites…  Florida’s own Representative Mark Foley, who was the chairman of the House caucus on missing and exploited children, the most vocal politician against internet crimes against children and fought for passage of the Adam Walsh Act got caught, within a year of it’s passage, text messaging underage congressional pages with sexually explicit messages. Speaking of the Adam Walsh Act; John Walsh admitted to dating his wife while she was underage! Shouldn’t he be prosecuted? Or Mark Lunsford, after whose daughter, Jessica, many sex offender proximity restrictions are named. Mark’s other child, Joshua was arrested as an adult for molesting a 14 year old. 

Shouldn’t he be subjected to the Jessica Lunsford Act?

These hypocrites have been screaming the loudest, yet when it comes to themselves or their families, they feel the laws don’t apply to them or if they make the public believe that they are “so righteous”, they will be above prosecution. But this is not childhood “whoever smelt it dealt it”, where the person who objects the first and loudest to the smell is likely the person who passed gas. This is playing with people’s lives!

Hopefully, one day these hypocrites who keep pushing the pendulum of sex offender punishment further out, will have it swing back…  and smack them in the face.




Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

Sex Offender Has Case Over Residency Ban

Posted by on July 28, 2014 in Articles

http://floridaactioncommittee.org/sex-offender-has-case-over-residency-ban/

A Texas man can sue a Dallas-area suburb over the constitutionality of its ban on registered sex offenders living within 1,500 feet of children, the 5th Circuit ruled.

Registered child sex offender Aurelio Duarte and his family sued Lewisville, Texas, after he tried and failed to find a house to rent or buy in the city that complied with the ordinance. 
He had earlier served eight years in state prison after a conviction of online solicitation of a minor. Duarte returned to Lewisville upon his release in 2009 and learned of the ordinance enacted one year earlier that bans registered child sex offenders from living within 1,500 feet of “where children commonly gather.”

The family currently lives in a one-bedroom motel room to comply with the ordinance.
The trial court later dismissed they family’s constitutional claims, concluding they lacked standing. A three-judge panel with the 5th Circuit disagreed, unanimously reversing and remanding the ruling Tuesday.

Writing for the panel, Judge Edward C. Prado said Duarte and his family have standing because they had “concrete” plans to live in Lewisville as opposed to indefinite plans.
“In order to find a place to rent or buy where the family could reside together, ultimately, the Duartes moved away, forcing the children to change schools and taking [wife] Wynjean Duarte farther from her job,” the opinion stated. “The ordinance therefore interferes with the Duartes’ lives ‘in a concrete and personal way’ which the Supreme Court has held is sufficient to confer standing.”

Prado criticized the trial court for tossing the claim after combining “the actual-injury inquiry for standing purposes with the underlying merits of the Duartes’ constitutional claims.”

“The district court concluded Duarte lacked standing because he resided in a motel room grandfathered under the ordinance, and had not yet been cited or prosecuted under the ordinance,” Prado wrote. “But ‘it is not necessary that petitioner first expose himself to actual … prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.’ The Duartes’ fears of liability are not ‘imaginary or speculative.’ Instead, their fears are based on correspondence with the Sex Offender Registrar warning against purchasing or renting specific properties. The district court rejected Duarte’s argument that he had been ‘all but prohibited … from residing at any location within … the City of Lewisville,’ because three residences were available. But the Duartes need not show they were ‘legally foreclosed from purchasing or leasing residential premises due solely to the … City of Lewisville,’ as the district court apparently believed. Instead, they need only show that the ordinance treats them differently from other would-be renters or homebuyers making it ‘differentially more burdensome’ for the Duartes to find a new place to live for standing purposes.”

Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

Extending Proportionality Review to Sex Offenders

Posted by on July 28, 2014 in Articles

http://floridaactioncommittee.org/extending-proportionality-review-to-sex-offenders/

The following is an excellent, well articulated and well researched article published in the YALE LAW JOURNAL it is a must read!

Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders


Erin Miller

Draconian restrictions on the activities and privacy of convicted sex offenders are a new, and troublesome, trend. In 1994 and 2006, following a national dialogue about crimes against children sparked by several high-profile incidents, Congress passed two laws requiring states to register and regulate sex offenders residing within their borders.1 States and municipalities soon caught on, and deepened restrictions. In the last five years alone, local governments have forbidden sex offenders to live within 2,000 feet of schools;2 “be” within 500 feet of parks or movie theaters;3 enter public libraries;4 drive buses or taxis;5 photograph or film minors;6 and use social networking websites like Facebook.7 Others have required sex offenders to advertise their status on driver’s licenses8 or social networking profiles;9 wear GPS bracelets at their own expense;10 notify local police when present in any county within the state for longer than ten days;11 provide notice to all new neighbors within a roughly quarter-mile radius when they move;12 and pay up to $100 annually to maintain sex offender registries.13These burdens typically last for a decade or for life, depending on the jurisdiction and the type of crime committed.14

Some sex offender restrictions (SORs) can be harder to comply with than is apparent at first glance. Residency restrictions, for example, can create overlapping forbidden zones that bar sex offenders from living in entire cities.15 A few years ago in Miami, sex offenders were known to camp under a bridge, one of few locations outside all exclusion zones.16 Violating these restrictions can result in a felony conviction and as many as ten years in prison.17

Legislators often justify SORs on the grounds of preventing recidivism and see child molesters as the main targets.18 The theory is that if the public is notified of dangerous past offenders in their neighborhood, and those offenders are barred from entering public areas frequented by vulnerable persons, then future sexual assaults can be prevented. The argument seems to be persuasive to much of the public, for SORs are popular with constituents.19 Yet very few sex offenders—including child molesters—are recidivists.20 Of those convicted of offenses against children, even fewer pose threats to the public at large because victims are often a member of the offender’s own family.21

These restrictions often indiscriminately reach all sex offenders, irrespective of their dangerousness. Many SORs apply to first-time offenders and those convicted of minor offenses.22 An eighteen-year-old who had consensual sex with his sixteen-year-old girlfriend and was convicted of statutory rape in Arizona could be required to register as a sex offender, depending only on his and her exact birth dates.23 Or someone convicted of urinating in public in California today might be forced to live in an isolated corner of Sacramento.24

SOR statutes, however carelessly drawn, largely evade constitutional checks. They ordinarily meet the rational basis test, for legislators can always allege that sex offenders pose some threat of recidivism, and that restricting their movements or privacy reduces the threat, even when they fail to target the sex offenders who pose an actual danger. Courts have condoned 
SOR statutes under rational-basis review even when legislators acted on erroneous information about recidivism rates among sex offenders.25 And the Supreme Court has explicitly limited other constitutional review of SORs. In Smith v. Doe, the Court held that community notification laws for sex offenders do not violate the Ex Post Facto Clause because post-sentence restrictions on sex offenders are “civil” rather than “criminal.”26 
Presumably this means SORs cannot be reviewed under the Cruel and Unusual 
Punishment27 or Double Jeopardy Clauses, either. Because SORs typically enroll sex offenders automatically based on prior convictions at trial, the Court held in a companion case to Smith that the Due Process Clauses do not require the government to hold individualized hearings to determine whether an offender should be subject to SORs.28

The lack of constitutional checks might be surprising given that courts review some civil sanctions for “proportionality” with the underlying wrongdoing under the Due Process Clauses. In the landmark case BMW of North America, Inc. v. Gore,29 the Supreme Court invalidated a punitive damage award in a civil lawsuit as “grossly excessive” compared to the injury done.30 The Court developed three “guideposts” for assessing proportionality that resemble the factors in cruel-and-unusual-punishment analysis under the Eighth Amendment.31

This Comment argues that the justifications the Court appealed to in the punitive damages context militate with equal or greater force for a comparable requirement for SORs, and then proceeds to show that the test the BMW Court outlined easily translates into the SOR context. While scholars have proposed constitutional review of SORs under doctrines other than the one articulated in this Comment, proportionality offers unique advantages. Unlike review under the Ex Post Facto Clause32 or Eighth Amendment,33 proportionality does not flout Smith’s judgment that SORs are civil regulations. Unlike review for violation of particular constitutional liberties, such as free speech,34 proportionality can be used to review all SORs, not just those that infringe particular substantive rights. Proportionality analysis also drives to the heart of the problem with many recent SORs: that they target more people, more harshly, than is necessary to achieve their objectives. It could therefore go a long way toward curbing SORs of great severity or duration that are imposed indiscriminately on many or all categories of sex offenders, including those convicted of non-violent crimes.

I. proportionality review of punitive damages

Courts review criminal punishments under the Eighth Amendment for proportionality, meaning that punishments must bear some reasonable relationship to the crimes that trigger them.35 While early twentieth-century precedents hinted that due process requires civil penalties, too, to be proportionate, the Court did not invalidate a single civil damages award for disproportionality from the Lochner era until 1996.36 Due process regulated only the procedures used to deprive a person of life, liberty, or property, imposing no substantive limit on the amount of that deprivation.

The early hint that proportionality might be a “substantive” due process right was confirmed in 1993 in TXO Production Corp. v. Alliance Resources Corp., when a plurality of the Court extended proportionality review to punitive damages.37 Punitive damages may be imposed in civil lawsuits, in addition to compensatory damages, to further state interests in punishment and deterrence.38 Generally they are available only for reckless, malicious, or oppressive conduct.39 TXO established that a punitive damages award violates the Fourteenth Amendment’s Due Process Clause if it is “grossly excessive” relative to the state’s legitimate purposes.40 The Court has not applied due process proportionality to any other civil penalty.41

When the Court first overturned a punitive damages award as “grossly excessive,” in Gore in 1996, it articulated three “guideposts” for excessiveness: the reprehensibility of the conduct; the disparity between the punitive and compensatory damages; and the difference between the punitive damages and other civil penalties for similar misconduct, in the same or other jurisdictions.42 This review is stricter than rational basis but falls short of heightened scrutiny.43 Using the Gore factors, the Court has invalidated punitive damages with ratios to compensatory damages of 500:144 and 145:1.45 In 2003, the Court refined the test into a near-categorical principle: “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”46

The Court has offered several justifications, express and implied, for applying proportionality review to punitive damages. On the cursory reasoning of the early 1900s civil proportionality cases, cited by Gore, deprivations of property that are “plainly arbitrary and oppressive”47 or “grossly excessive”48 compared to what is required to achieve any government purpose are presumably issued without due process. In and since Gore, the Court has identified specific features of punitive damages that raise special due process concerns triggering proportionality review: they (1) may not give fair notice to potential offenders of the penalties for their conduct; (2) are imposed through an adjudication designed for a different purpose; and (3) are imposed with so much discretion and against such disfavored groups that the risk of arbitrary enforcement is high. Additionally, while the Court has not expressly observed it, a fourth feature unites punitive damages with other sanctions reviewed for proportionality under other constitutional provisions: they serve to punish, a function that implicates traditional retributive limiting principles like proportionality.

II. the parallel between punitive damages and sex offender restrictions

The four justifications listed above for applying a proportionality principle to punitive damages can readily be applied in other contexts. Below, I elaborate on these justifications and explain how they apply with equal or greater force to SORs. Conveniently, a 2003 opinion by Chief Justice Rehnquist suggests that a “substantive due process” challenge to SORs remains open.49

First, both punitive damages and SORs raise concerns about adequate notice. The Court’s primary reason for imposing a proportionality requirement in Gore was that, without it, potential offenders would lack “fair notice” of the legal consequences of their conduct.50 Under fair notice doctrine, due process demands that the law state explicitly and precisely what conduct is forbidden.51 But the Court has gone further in punitive damages cases, observing in Gore that “[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.”52 Amounts of punitive damages will be hard for a tortfeasor to predict, because—absent proportionality—those damages need not be anchored to any reasonably knowable facts, like the actual or foreseeable injury caused. Often juries may calculate punitive damages to deter future misconduct not just by the tortfeasor on trial, but also by other potential defendants, about whom the tortfeasor will ordinarily lack information.

SORs may create an even greater fair notice problem than punitive damages, because SORs are harder to predict. A prospective offender should be able to roughly determine the criminal sentences he could face,53 but he can only guess about SORs yet to be enacted. Legislatures may restrict new liberties of sex offenders long after their crimes and even after their prison sentences,54 and across many different aspects of their lives; legislators are growing more creative. For those convicted of minor sex offenses—such as teenagers convicted under harsh statutory rape laws—SORs may be worse than their criminal sentence of a few months in prison. If we take seriously the fair notice logic of Gore, SORs should have some limiting principle so that potential sex offenders—like tortfeasors—can predict the range of legal consequences that could result from their misconduct. Proportionality would provide that limiting principle.

The principle that criminal defendants should have notice of civil as well as criminal consequences of their crimes is already implicit in the Court’s jurisprudence. Padilla v. Kentucky recently held that criminal defendants engaged in plea bargaining have a constitutional right to be informed by counsel that a conviction might result in the civil consequence of deportation, in part because of recent expansions in deportation-eligible offenses.55 Admittedly, pleading guilty is a different decision than committing the crime, the decision with which fair notice doctrine is concerned. But Padilla implies that a person considering committing or admitting to a crime may find the legal consequences of that crime relevant, regardless of their classification as civil or criminal, because of the hardship they would inflict on that person.

Second, both punitive damages and SORs are imposed as a result of an ill-fitting process. The trial deemed “due process” for imposing each sanction is designed to make a factual determination different than the one that justifies imposing the sanction. A civil jury is primarily tasked with deciding questions of duties, causation, and valuation. Awarding punitive damages is a task more akin to penal policy-setting: how much money is necessary to punish the defendant, and to deter his and others’ misconduct?56 Yet, because liability and compensation are a trial’s focus, the jury may not receive evidence about the amount of punitive damages needed to meet these policy objectives.57 Often the only relevant evidence presented at trial concerns the defendant’s mens rea, a precondition for punitive damages. 
As the Court explained in a punitive damages case, “evidence of culpability warranting some punishment is not a substitute for evidence providing at least a rational basis for the particular deprivation of property imposed by the State to deter future wrongdoing.”58
The mismatch between SORs and their “due process” is greater. Almost all sex offender restrictions are justified by state legislatures as preventing crime, or allaying community fear of it.59 Legislators often cite the erroneous but common belief that sex offenders have higher recidivism rates than other types of criminals.60 Many SORs primarily aim to protect children against this recidivism. The major pieces of federal legislation that enact SORs are the Jacob Wetterling Act and the Adam Walsh Act, both named after child victims of violent crime.61 Yet a trial for a sex offense is a poor process for determining whether a sex offender is a future danger to anyone—much less a danger to children in particular. Juries are not asked to determine whether defendants are likely to re-offend, or against whom. The Court itself admitted this inadequacy of trials, suggesting that an SOR statute that imposes a severe restriction and acknowledges an aim to incapacitate “particularly dangerous” offenders might, to satisfy due process, need an additional individualized adjudication of dangerousness.62 This is a strange twist of logic, implying that a less transparent legislature that relies on generalizations or even false information that all sex offenders pose a future danger—and therefore that fails to isolate “particularly” dangerous offenders as its target—may be effectively insulated from a due process challenge.

Third, the wide discretion given juries in imposing punitive damages creates an unusual risk of arbitrary and prejudicial enforcement.63 The Court sees the disfavored and vulnerable group as big business, whose deep pockets may be tempting targets for outsized punitive damages.64 The Court has interpreted disproportionate awards as evidence of such prejudice.65 But big business is hardly a singularly vulnerable group. Sex offenders are more unpopular, and their unpopularity is often based on untenable assumptions about their crimes, their psychology, or their future danger.66 Legislators pressured to be tough on crime face few drawbacks but many rewards for restricting released sex offenders. Like juries determining punitive damages, legislators operate mostly unchecked in passing SORs; for example, they may pass them retroactively and with no process beyond the original trial. This combination of legislative discretion and offender vulnerability may have contributed to the spate of carelessly drawn SORs that sweep in minor and serious sex offenders alike.
Fourth, SORs can be sufficiently punitive in nature to invoke proportionality as a traditional retributive limiting principle of punishment. If one characteristic unites most types of sanctions—both criminal and civil67—to which the Court has applied constitutional proportionality review, it is their punitive nature. In addition to punitive damages and punishment itself, the Court has applied proportionality to “punitive” forfeitures under the Excessive Fines Clause.68 Proportionality as a retributive limiting principle on the severity of punishment means that, regardless of the state’s penal aims, it cannot dole out its punishment to an offender except in proportion to his actual wrongdoing. For example, though deterrence may be a penal aim, it is limited in any given case by proportionality.69 To the extent SORs are punitive, they should be subject to retributive proportionality.

The Court evaluates whether a sanction is “punitive” using the Kennedy v. Mendoza-Martinez factors.70 These are neither exhaustive nor definitive, but in examining Alaska’s sex offender registration and community-notification laws in 2003, the Court stressed the question “whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.”71 Applying these factors, the Court found Alaska’s scheme nonpunitive. But the Court’s analysis emphasized the “minor and indirect” nature of the “disability or restraint,” which left sex offenders “free to move where they wish and to live and work as other citizens, with no supervision.”72 Compared to the current infringements of privacy and mobility that sex offenders face, the Alaskan scheme was mild.73

If we accept that an SOR imposes an “affirmative disability or restraint,” then the key remaining Mendoza-Martinez factors will be whether the SOR has been traditionally regarded as a punishment, and whether it rationally serves a punitive purpose or is excessive vis-à-vis its nonpunitive purpose. As other scholars have discussed, the types of disabilities imposed by SORs—including near-banishment and other social exclusion—have historically been used to punish in the United States.74 Perhaps authorities will argue that their SORs serve public-safety purposes, not punitive purposes. Excess should constitute strong evidence of at least a partial punitive purpose, for the excess will be harder to justify on grounds other than the “traditional aims of punishment,” retribution and deterrence. SORs may be punitive only in certain cases, for “a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.”75 This would be the case, for example, where the SOR applies to all sex offenders even though the regulatory purpose implicates only a subset of offenders. That an SOR, as applied, is sufficiently punitive to require proportionality review—itself merely a test, not a conclusion—does not mean it will be deemed punishment subject to other constitutional restraints.

As an example, residency restrictions that, banishment-like, all but exclude sex offenders from living in a city should be found punitive. These restrictions ban sex offenders from living within a certain distance—typically 1,000 to 2,000 feet—of a school, park, or other facility frequented by children. Given the density of children’s facilities, this restriction often effectively banishes sex offenders from all city real estate. Banishment has a long history as a form of punishment in the United States.76 Ostensibly, residency restrictions serve the nonpunitive purpose of keeping children safe from sexual predators. Yet they typically apply to many sex offenders other than those who have assaulted children. Banishing a person who streaked as a high school student77 is excessively burdensome given that it does nothing to protect children but imposes a heavy cost on the delinquent minor. When a law like this fails to achieve its safety objective in many individual cases, the only conceivable objective it serves in those cases is punitive. It is retributive, inflicting suffering on a person who has inflicted suffering on others; and its severity may deter, if sex offenders are aware that their acts could gravely disrupt their lives even after they have served their sentences.
A skeptic of my argument might contend that penalties issued by juries—but not, as in the case of SORs, by legislatures—uniquely warrant due process review for excessiveness.78 Distrust of juries appears to be a principal motivation in the Court’s proportionality review of punitive damages. But distrust of all actors may be prudent, given the broader concerns underpinning proportionality review. Fair notice, the primary justification for proportionality review cited in Gore, isas important for legislative penalties as for those imposed in civil trials. The other justifications, as I’ve explained above, apply in both contexts. Indeed, several of the early twentieth-century cases hinting at proportionality review for punitive damages involved statutorily set penalties.79 Moreover, it is simply not true that legislators command more deference than juries. Juries are highly respected in the American judicial system, and their pronouncements carry the enhanced due process guarantee of individualized consideration. Jury verdicts are generally upheld if supported by any “legally sufficient evidentiary basis,”80 a standard of review hardly more demanding than the rational basis sought in legislation.

III. applying bmw v. gore to sex offender restrictions

While Gore’s proportionality test was designed for punitive damages, it can easily be adapted to the SOR context. To determine whether a deprivation of liberty is proportionate, as due process requires, the Court should inquire whether it is “grossly excessive” to achieve the legitimate state objectives of punishment.81 To reiterate, the Gore “guideposts” for evaluating the excessiveness of punitive damages are (1) the reprehensibility of the misconduct, (2) the disparity between the punitive and actual damages awards, and (3) the difference between the punitive damages and other sanctions for like misconduct, in the same and other jurisdictions.

The first factor cleanly translates to the SOR context: where Gore examines reprehensibility of the misconduct, a court reviewing an SOR examines reprehensibility of the sex crime. This factor should cast suspicion on statutes that severely penalize petty criminals, such as public urinators, or that penalize minors for life.82

The second factor presents the greater challenge, for Gore compares the monetary value of harm the defendant actually or potentially inflicted with the money he may be forced to pay as punishment. The items compared are pre-quantified for the court. For SORs, the court must instead compare the harm that the sex crime inflicted on society with the harm that society may inflict in return. This will require quantification of harm, but courts are well-acquainted with this sort of analysis as part of their sentencing function,83 and anyway it surely would not prevent detection of extreme disparities.

Where an SOR is triggered by any sex crime conviction,84 the second factor also might require aggregation that is not necessary for punitive damages: the court should consider all of the crimes of the repeat offender; and, for consistent logic, all of the restrictions imposed on the offender by states and localities.85 This aggregation aligns with courts’ approach to punitive damages, which are often awarded in greater amounts where the defendant is more likely to recidivate or has already recidivated.86 Moreover, the interactive effects of these restrictions may need to be examined. For example, where overlapping residency exclusion zones exclude an offender from living in most parts of a city, that effect should be considered in the calculus.

The third factor translates nearly as cleanly as the first. Rather than looking merely to the severity of other sanctions for comparable misconduct, the court can compare among jurisdictions both the scope and severity of civil restrictions and criminal sentences for similar sex offenses. SORs might also be compared to penalties imposed for non-sex offenses of a similar nature. For example, SORs imposed on minors convicted under laws criminalizing sex between minors might be compared to penalties imposed for other juvenile offenses. This branch of the inquiry should undermine SORs drawn with an unusual degree of carelessness or imprecision.

Finally, proportionality review of SORs should include an additional factor: a comparison between the offender’s crime and the state’s purpose for the SOR. In almost every case, the state’s purpose will match the traditional penal purposes of deterrence, incapacitation, retribution, and, less often, rehabilitation. Wide disparities between the purpose and the type of offender targeted should constitute strong evidence that a sanction is disproportionate. Some SORs, though only slightly burdensome, may do little to nothing to advance the state’s purpose when applied to particular sex offenders, or to a particular class of sex offenders. For example, regulations that restrict sex offenders’ access to areas frequented by children will do little to prevent child predation when applied to offenders unlikely to victimize children—perhaps such as those who have only ever victimized adults. 
While resembling rational basis review, this analysis differs because it examines whether the law’s general justification holds as applied to this sex offender. The analysis would not require legislatures to use least-restrictive means, but would only permit courts to consider the overbroad scope of an SOR as one factor suggesting its gross excess.

While this extra factor is not one of the Gore three, it finds grounding in the Court’s discussion of the second factor, comparing punitive and compensatory damages, and in the Court’s application of retributive limiting principles to punitive sanctions. The Court emphasizes that excessive punitive awards are arbitrary and fail to serve the state’s punitive interest in retribution or deterrence.87 Presumably, awards would not be excessive if their full amount served both of the state’s legitimate interests. The question of excess in the punitive damages context is necessarily only a question of magnitude. For SORs, however, the excess can take the form of suffering of an unwarranted type. In rejecting the punitive damages award in Campbell, the Court observed: “[A] more modest punishment for this reprehensible conduct could have satisfied the State’s legitimate objectives, and the [state] courts should have gone no further.”88 That is an excellent slogan for reviewing sex offender restrictions for proportionality.

Let me close by offering a fairly typical sample case. Many cities in Texas have passed ordinances restricting the areas in which registered sex offenders may live. To take just one example, the city of Burleson’s ordinance forbids any sex offender required to register in Texas, whose victim was younger than seventeen years old, to “establish a permanent residence or temporary residence within 1000 feet of any defined premise where children commonly gather, including a playground, school, day-care center, video arcade facility, public or private youth center, park, or community swimming pool.”89 Given the Texas registration scheme, the ordinance applies to, among others, teenagers convicted of having consensual sex with other teenagers.90 An eighteen-year-old still in high school could be convicted under Texas law for having sex with his fourteen-year-old freshman girlfriend. As a result, he might be banned for ten years from living in certain Texas cities with tight residency restrictions and a high density of schools and public parks, like Burleson. 91
Under the Gore analysis, a court reviewing this law would (1) consider the reprehensibility of the consensual sex in this case; (2) compare the harm inflicted on society by that act to the severity of the sanction against the offender; (3) compare the sanction against consensual sex between minors here to other sanctions for the same infraction; and (4) determine whether the sanction serves the purpose of protecting public safety, which was arguably the purpose of the residency restriction.92 Such a court should conclude that consensual sex between teenagers is one of the least reprehensible sex offenses, insofar as it involves no violence or abuse, and inflicts minimal harm on society. The decade-long residential exclusion of the SOR is a penalty far exceeding the misdemeanor penalties in other jurisdictions for consensual sex between young people three or fewer years apart in age.93 Indeed, many jurisdictions do not outlaw similar acts at all.94 Finally, the penalty is ill-designed to protect the public from sexual predators of young children, given that teenagers who have consensual sex with a girlfriend or boyfriend do not seem uniquely subject to sexual temptation by very young children from their residential neighborhood.95 All factors support the conclusion that Burleson’s residency restriction, applied to this crime, is “grossly excessive” in violation of due process.

Conclusion

The Supreme Court’s serious due process concerns about punitive damages awards against large corporations—regarding fair notice and an ill-fitting, potentially prejudiced implementation process—apply just as powerfully to harsh civil regulations imposed on sex offenders after their criminal sentences. And any procedural inadequacies promise to take a heavier human toll for sex offenders than they do for big business. This Comment has proposed a straightforward doctrinal solution to these dangers for sex offenders’ due process rights: extending proportionality review, already applied to punitive damages awards, to sex offender restrictions. Proportionality principles should—and practically can—be applied to stem the tide of prejudicial and ill-informed burdens imposed indiscriminately on all sex offenders.


Florida Action Committee (FAC), founded in 2006, is a state-wide consortium of concerned citizens and professionals whose purpose is to promote the prevention of sexual abuse while preserving the safety and dignity of all citizens through carefully structured laws targeting the truly violent, forced, and/or dangerous predatory acts of sex. FAC believes that many aspects of the current approach to sex offenders seriously undermine justice and actually increase the threat of sexual assault against others, particularly children. FAC opposes a publicized registry of sex offenders and seeks to bring an end to the humiliation of people who have already paid for their crimes. FAC asserts that only by supporting justice for all people—offenders and victims alike can a truly safe society be built and secured for all Americans.

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"When an American says that he loves his country, he means not only that he loves the New England hills, the prairies glistening in the sun, the wide and rising plains, the great mountains, and the sea. He means that he loves an inner air, an inner light in which freedom lives and in which a man can draw the breath of self-respect."
~Adlia Stevenson U.S. Vice President (1893–1897) and Congressman (1879–1881)

On a Personal Note

Thanks for the opportunity to express my thoughts regarding the issue of citizens’ rights, particularly addressing certain sex offenders’ crimes that do not fit the devastating, inequitable and endless punishment given.


As you know, many young men and women lives across the nation are being destroyed by incarceration, life-time registry and restrictive laws that do more harm than good. For those individuals, there is no second chance.

Below is a personal letter to President Obama:
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“Dear President Obama,

I truly agree with your sentiments that individuals, such as ex-felons, should be able to receive a second chance at life. Since we all know that one can veer off that path of life and travel along rough, rocky terrain, sometimes running off and ending up in some ditch. We all have made our fill of mistakes and sometimes those held a costly consequence that changed life forever. So we lived through it, trying harder to make things right with family, friends and those around us, but what about those who aren’t able to make things right even if they tried…because they’re labeled as too dirty, a leper, a person who is rejected from society and home.


But what if they’re a seventeen year old and had sex with a fifteen year old, consensual at that? Or they’re a teen that had gotten so enraged after a breakup that he sent out naked pictures of his girlfriend on his cell phone or email? Or an individual urinates where someone just happens to see them?


All are wrong and a travesty but do they deserve the life of no second chance with a registry that ends all. They are labeled, no jobs, no where to live…they have been deemed a menace to society, a plague. These certain circumstances, and many other situations similar to these, I believe still deserve a second change.

Fourteenth Amendment to the United States Constitution


Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


After my son’s early release and two years of prison, I thought I had handled that fact graciously knowing after serving his time he would be able to get that fresh start, that second chance. He was an exemplary inmate, GED, college courses and vocational classes. Little did I know that a second chance on the outside was the farthest from the truth? He now struggles and lives in a trailer park sharing a trailer with another and surrounded by others in the same rocking boat, one to float endlessly in shark infested waters. I see him little because of probation requirements (he couldn’t live with us because we were 800 feet near a school). My family is afraid of what would happen to them if he lived with them…vigilantism. My son has no other place to stay since others condemn him of his crime that is screamed from the highest rooftop. Sex offender, sex offender!

Not all sex offenders are pedophiles or predators but some are simply young kids that make one stupid and rash decision that eventually changes everything, and they have no idea what they’ve done until their life is never their own. Exactly, where is that second chance for those sex-offenders who are lumped together with pedophiles and predators? Now, it makes me sick to think of my son’s future and many like him that are on the registry and many with no second chance…ever. I am asking you as a mother and as another concerned citizen of the United States that these laws are looked at again and taken into serious consideration in what they are doing to the Constitution of the United States, not for sex offenders in general but the future rights of every citizen, before anymore are put into effect. They unjustly strip an offender of their rights and place them in a guillotine that can be easily set off by anyone and at anytime. Where is the second chance for ex-sex offenders in the present, pending and future laws?”
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What truly saddens me is the weakness and deterioration of what the sex offense issue is doing to our once, great nation. Across Europe, others are seeing the injustice and disregard of rights, but we ignore this problem and it makes me wonder where humanity is heading….

We have become a hysterical society in which our latest witch-hunt is a sex offender--no matter his/her crime.

Below is a email sent from a foreign advocate to a father of a sex offender:
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“The tragic story of your son's death is just so sad that it's difficult to explain how. It was very hard to read your letters. It seems almost unbelievable that this can take place in a democracy! From our point of view, there is no justice in this. Not in any way: not for you, your son, the former girl friend – or even the state.

It is an abusive legal system. It seems barbaric. And we are so very sorry that this takes place. That's why it's so important for us to try to neutralize the debate with this…, hopefully making some changes. ….. to show the every day life of the sex offenders, trying to show how they keep on being punished, even after served prison time…..But we will for sure tell the story of the injustice that your son has been exposed to.”
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I appreciate everyone's commitment and backing to protect everyone's civil rights, plainly as noted in the Constitution of the United States and is presupposed, giving ALL men are “life, liberty and pursuit of happiness.”