Laws restricting sex offenders don't work

Call to Action : OH Legislature Going at it Again

Wednesday, February 2, 2011

CALL TO ACTION:

Ohio Legislators are going at it again. Just six months after having been soundly defeated in the June 2010 Bodyke vs. Ohio Supreme Court ruling, seven Ohio House Representatives have proposed new legislation to retroactively revise Ohio's sex offender laws to re-capture all offenders who committed crimes before 2008 onto the rolls of the sex offender registry.

Those concerned about this proposed legislation must contact the seven Representatives immediately to express their opposition to this bill. If we are forced to do so, ConstitutionalFights will return to the battlefield to help defeat this latest attempt by the Ohio Legislature to violate the constitutional rights of 30,000 Ohio citizens.

The newly proposed bill, House Bill 77 of the 129th General Assembly would amend and repeal parts of the existing Ohio sex offender statutes to:

"clarify that SORN Law definitions of sexually oriented offenses, child-victim oriented offenses, tier classifications, public registry-qualified juvenile offender registrants, and related terms include the specified offenses regardless of when they were committed and to provide for court reclassification of offenders and delinquent children who committed their sexually oriented offense or child-victim oriented offense prior to January 1, 2008, and had SORN Law duties based on that offense into one of the tier classifications of the current SORN Law.

View proposed HB 77.


Bill Sponsors:

REPRESENTATIVES:
Hackett Garland Blessing Combs Grossman Hottinger Patmon

Bob D. Hackett, Representative
State Representative (R)
District: 84
Term: 2nd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
11th Floor
Columbus, OH 43215-6111
Phone: (614) 466-1470
Fax: (614) 719-6984
Email: district84@ohr.state.oh.us


Nancy J. Garland, Representative
State Representative (D)
District: 20
Term: 2nd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
10th Floor
Columbus, OH 43215-6111
Phone: (614) 644-6002
Fax: (614) 719-6959
Email: district20@ohr.state.oh.us


Louis W. Blessing, Jr., Speaker Pro Tempore
State Representative (R)
District: 29
Term: 4th
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
14th Floor
Columbus, OH 43215-6111
Phone: (614) 466-9091
Fax: (614) 719-3583
Email: district29@ohr.state.oh.us

Courtney Combs, Representative
State Representative (R)
District: 54
Term: 5th (includes appointed and elected terms)
Term Limit: Not eligible to run for another two-year term
Address:
77 S. High St
13th Floor
Columbus, OH 43215-6111
Phone: (614) 644-6721
Fax: (614) 719-6954
Email: district54@ohr.state.oh.us

Cheryl L. Grossman, Assistant Majority Whip
State Representative (R)
District: 23
Term: 2nd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
14th Floor
Columbus, OH 43215-6111
Phone: (614) 466-9690
Fax: (614) 719-6962
Email: district23@ohr.state.oh.us

Jay Hottinger, Representative
State Representative (R)
District: 71
Term: 3rd
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
12th Floor
Columbus, OH 43215-6111
Phone: (614) 466-1482
Fax: (614) 719-3971
Email: district71@ohr.state.oh.us

Bill Patmon, Representative
State Representative (D)
District: 10
Term: 1st
Term Limit: Eligible to run for another two-year term
Address:
77 S. High St
11th Floor
Columbus, OH 43215-6111
Phone: (614) 466-7954
Fax: (614) 719-0010
Email: district10@ohr.state.oh.us


We seek legal professionals who are willing to engage in a lawsuit against the State of Ohio should this legislation be put into law. We also still seek legal professionals who are willing to engage in a lawsuit against the State of Ohio regarding the Bodyke Supreme Court ruling of June 2010 for damages of those 30,000 former offenders who were maintained on the sex offender registry 2-1/2 years after they should legally have been removed.

We must collectively hit these legislators squarely in the "front teeth" this time to assure that we do not experience what we experienced between 2008 and 2010.

New study: Tracking sex offenders will cost millions more

New study: Tracking sex offenders will cost millions more

Judges overturn sex offender rule

* By JAMES MINTON

* Advocate Baker - Zachary bureau

* Published: Mar 31, 2010 - Page: 4B

See comments (11) and article: http://www.2theadvocate.com/news/89572772.html

An appellate court has ruled that the state cannot require a West Feliciana Parish man to register as a sex offender for the rest of his life or carry a special driver’s license and identification card.

The ruling by a three-judge panel of Louisiana’s 1st Circuit Court of Appeal overturns a District Court judge’s ruling against Jimmy L. Smith, who was convicted of indecent behavior with a juvenile and carnal knowledge of a juvenile when he was 19.

Charles Griffin II, Smith’s attorney, said Smith served his sentence for the 1995 convictions, completed his probation and complied with post-release registration requirements for a 10-year period after he was released from prison.

Smith said authorities told him in 2009 that he would have to register again as a sex offender for the rest of his life because the law had changed after he was convicted.

Smith complied, but challenged the order in 20th Judicial District Court. Unless the state decides to challenge the ruling, Griffin said, Smith will be able to get a driver’s license without “sex offender” written on it in orange letters.

Driver’s licenses for sex offenders must be renewed annually.

The opinion, issued Friday by Judges Vanessa G. Whipple, Jefferson D. Hughes III and Jewel E. “Duke” Welch, says case records show that Smith fulfilled his duty to register as a sex offender for the period of time that was applicable when he was convicted.

The opinion says Louisiana’s version of “Megan’s Law,” has a legitimate civil purpose to alert and protect the public from sex offenders who might offend again.

In Smith’s case, however, the amendments adopted after his conviction are “so punitive in effect as to transform what was intended as a civil remedy into an additional punishment for him.”

The retroactive application of amendments to the law violates the U.S. and Louisiana constitutions, the opinion says.

Bacon v. Neer

BACON v. NEER

Eric Bacon, Plaintiff-Appellant, v. Tom Neer, St. Charles County Sheriff; James Keathley, Colonel, Superintendent Missouri State Highway Patrol, Defendants-Appellees.

No. 10-1104.

United States Court of Appeals, Eighth Circuit.

Submitted: September 20, 2010.

Filed: February 1, 2011.

Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.

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LOKEN, Circuit Judge.

This is an interlocutory appeal from the denial of a preliminary injunction. Eric Bacon pleaded guilty to possession of child pornography in 2004, before the Missouri Sex Offender Registration Act ("SORA") was amended to require registration for that offense. See Mo. Rev. Stat. § 589.400.1(2). In 2007, the Supreme Court of Missouri held that requiring a sex offender to register under SORA on account of a crime that predated the statutory requirement violates the prohibition against a law "retrospective in its operation" in Article I, § 13 of the Missouri Constitution. Doe v. Blunt, 225 S.W.3d 421, 422 (Mo. banc 2007). Therefore, for purposes of this appeal, it is undisputed that Bacon, a Missouri resident, has no duty to register under § 589.400.1(2).

In 2006, Congress enacted the Sex Offender Registration and Notification Act ("SORNA"), which provides that "a sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides." 42 U.S.C. § 16913(a). It is undisputed that Bacon is a "sex offender" under SORNA. See 42 U.S.C. §§ 16911(1), (5)(A)(ii), 16911(7)(G). Unlike SORA as construed in Blunt, SORNA's registration requirements apply to persons whose predicate offenses predate its enactment. See 42 U.S.C. § 16913(d); 28 C.F.R. § 72.3; United States v. May, 535 F.3d 912, 918-19 (8th Cir. 2008), cert. denied 129 S.Ct. 2431 (2009).¹

SORA also requires registration in Missouri by any person who is "required to register under . . . federal . . . law." Mo. Rev. Stat. § 589.400.1(7), .2. Failure to comply with this requirement is a class D felony. § 589.425.1. In 2009, the Supreme Court of Missouri held that sex offenders who are required to register under § 589.400.1(7) because of the "independent registration requirement under SORNA" are not "exempt from registration by virtue of article I, section 13 of the Missouri Constitution." Doe v. Keathley, 290 S.W.3d 719, 720-21 (Mo. banc 2009). Following this decision, the St. Charles County Sheriff's Department informed Bacon that he was required to register under SORA or face criminal prosecution.

Bacon then commenced this action against St. Charles County Sheriff Tom Neer and Colonel James Keathley, Superintendent of the Missouri State Highway Patrol. The complaint sought a preliminary injunction enjoining defendants from requiring Bacon to register under SORA and from "instituting criminal prosecution" against him for failing to register. After issuing a temporary restraining order, the district court² promptly held a preliminary injunction hearing. The parties disclosed that Bacon had been charged with failure to register in state court the day after this action was filed, and that the prosecutor had stayed the state criminal proceeding pending the district court's preliminary injunction ruling. The district court denied the requested injunction, concluding that Bacon's claim against Colonel Keathley is barred by the Eleventh Amendment, and that Bacon failed to establish either a threat of irreparable harm or a likelihood of success on the merits of his claims against Sheriff Neer. This interlocutory appeal followed.

We were advised at oral argument that Bacon has now registered as a sex offender under SORA, and the State has dropped its criminal charges against him. We therefore dismiss the interlocutory appeal as moot. For additional reasons, we remand with directions to dismiss the complaint.

I. The Preliminary Injunction Appeal Is Moot

An order denying a preliminary injunction is immediately appealable. 28 U.S.C. § 1292(a)(1). However, the appeal of an order denying a preliminary injunction becomes moot if the act sought to be enjoined has occurred. See CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 620-21 (1st Cir. 1995); Curtis Indus., Inc. v. Livingston, 30 F.3d 96, 97 (8th Cir. 1994). As mootness relates to justiciability and our power to hear a case, "we must consider it even though the parties have not raised it." Olin Water Servs. v. Midland Research Labs., Inc., 774 F.2d 303, 306 n.3 (8th Cir. 1985). Based upon St. Charles County and Missouri State Highway Patrol sex-offender public records, we take judicial notice that Bacon has registered. See Fed. R. Evid. 201(b), (c), & (f). Therefore, the act Bacon sought to enjoin (registration) has occurred, and his appeal from the denial of preliminary injunctive relief is moot.

II. The Merits of the Claims for Further Relief

Though Bacon's claims for preliminary injunctive relief are moot, the entire case may not be moot if "a favorable decision . . . would make it sufficiently likely that [Bacon] could remove his name and identifying information from the [Missouri] sex offender registry." United States v. Juvenile Male, 130 S.Ct. 2518, 2519 (2010) (quotation omitted). Though we typically remand to the district court to consider such issues, we may reach the merits of Bacon's claims for further relief. See 28 U.S.C. § 2106; Campaign For Family Farms v. Glickman, 200 F.3d 1180, 1186 (8th Cir. 2000). We exercise this power if the issues are purely legal, there are no factual disputes, the relevant analysis is substantially related to that preliminarily conducted by the district court, and rendering a final decision can save significant litigation expenses. Id. at 1186-87. This inquiry requires a closer look at Bacon's claims.

In support of the relief requested — a declaratory judgment that SORNA is unconstitutional and a permanent injunction — Bacon alleged that "the only way [he] can be required to register under Missouri law is through the provisions of SORNA," and that SORNA violates the Commerce Clause, the Ex Post Facto Clause, the Tenth Amendment, and his fundamental right to travel under the United States Constitution, as well as the federal Administrative Procedure Act. We have consistently rejected challenges to SORNA under the Ex Post Facto Clause, the Tenth Amendment, and the APA.³ The right-to-travel contention has been rejected by two of our sister circuits⁴ and is without merit on the facts of this case because Bacon is free to travel if he registers. Thus, we will discuss only his novel Commerce Clause allegations.

In May, we held that the federal criminal offense in 18 U.S.C. § 2250(a)(2)(B), part of SORNA, does not violate the Commerce Clause because the offense requires proof of travel in interstate commerce followed by a defendant's knowing failure to register. 535 F.3d at 921-22. In United States v. Howell, 552 F.3d 709 (8th Cir.), cert. denied, 129 S.Ct. 2812 (2009), we addressed a different Commerce Clause contention, that the § 2250 convictions at issue were invalid because SORNA's registration requirement, 42 U.S.C. § 16913(a), regulates purely non-economic, intrastate activity and therefore is beyond Congress's Commerce Clause power. We rejected the contention. While expressing doubt that § 16913(a) could be upheld under the Commerce Clause, we concluded that the statute was valid under the Necessary and Proper Clause, Art. I, § 8, cl. 18, because "the registration of wholly intrastate sex offenders is merely incidental to Congress's tracking of sex offenders in interstate commerce." Id. at 717.

In this case, applying these cases and district court decisions (mostly overruled) from other circuits, Bacon constructs the following Commerce Clause argument: (i) As he has not traveled in interstate commerce and is not being prosecuted under 18 U.S.C. § 2250, neither the Commerce Clause nor the Necessary and Proper Clause makes the federal sex-offender registration requirement in § 16913(a) constitutional as applied to him. (ii) Admittedly, § 16913(a) is valid as an exercise of Congress's power under the Spending Clause, Art. I, § 8, cl. 1. But as such, it does not impose an affirmative obligation to register; it merely conditions federal funding on Missouri imposing that requirement. (iii) The Supreme Court of Missouri in Keathley misconstrued the constitutional basis for § 16913 as permitting an "independent" federal registration requirement. (iv) Therefore, Article I, § 13 of the Missouri Constitution as construed in Blunt bars defendants from requiring Bacon to register under SORA and from prosecuting him for failure to do so.

Though creative, we conclude that, for several reasons, this theory fails to state a claim upon which relief may be granted by a federal court. First, Bacon asks a federal court to enjoin an anticipated state criminal prosecution. The traditional rule was that courts of equity "could not enjoin criminal proceedings." In re Sawyer, 124 U.S. 200, 210 (1888). Though that absolute prohibition has been loosened, "in the past few decades, the Supreme Court has upheld federal injunctions to restrain state criminal proceedings only where the threatened prosecution chilled exercise of First Amendment rights." Deaver v. Seymour, 822 F.2d 66, 69 (D.C. Cir. 1987) (citations omitted); see Stolt-Nielsen, S.A. v. United States, 442 F.3d 177, 183 (3d Cir. 2006). There is no First Amendment claim in this case. The district court's preliminary injunction ruling was consistent with a long-standing principle — "the cost, anxiety, and inconvenience of having to defend against a single criminal prosecution [are] not by themselves . . . considered irreparable in the special legal sense of that term." Younger v. Harris, 401 U.S. 37, 46 (1971). Indeed, had St. Charles County officials filed criminal charges before "proceedings of substance" took place in this action, the district court likely would have been required to abstain altogether. See Hicks v. Miranda, 422 U.S. 332, 349-50 (1975).

Second, in addition to injunctive relief, Bacon seeks a declaratory judgment reflecting his construction of 42 U.S.C. § 16913(a). In general, "federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demonstrates a genuine threat of enforcement of a disputed state criminal statute." Steffel v. Thompson, 415 U.S. 452, 475 (1974). However, Bacon does not allege injury from a violation or threatened violation of a federal statutory or constitutional right, as in Steffel. Rather, he concedes that 42 U.S.C. § 16913(a) is valid as an exercise of Congress's power under the Spending Clause and alleges that the Supreme Court of Missouri's misinterpretation of this federal statute in Keathley denied him a right under the Missouri Constitution. In other words, he asks a federal court to interpret a federal statute in a manner that will provide him with a defense against an anticipated state prosecution. The Declaratory Judgment Act is procedural; it does not expand federal court jurisdiction. Federal-question jurisdiction may not be created by a declaratory-judgment plaintiff's "artful pleading [that] anticipates a defense based on federal law." Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 673 (1950); see Gully v. First Nat'l Bank, 299 U.S. 109, 115 (1936). Thus, the district court lacks subject matter jurisdiction over the declaratory judgment Commerce Clause claim under 28 U.S.C. § 1331. See Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 813 (1986) ("[T]he mere presence of a federal issue in a state cause of action does not automatically confer federal-question jurisdiction.").

Third, Bacon's alleged injury is not redressable in federal court and therefore does not satisfy an element of Article III standing. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The alleged injury is having to register or to face prosecution under state law for failing to do so. Even if a federal court agreed with Bacon's interpretation of § 16913, it would have no jurisdiction to enjoin defendants from enforcing SORA as construed in Keathley by the Supreme Court of Missouri. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (a federal court may not "instruct[] state officials on how to conform their conduct to state law"); Clark v. Coye, 60 F.3d 600, 603-04 (9th Cir. 1995). And if the federal court limited its ruling to a declaration that the Supreme Court of Missouri misinterpreted § 16913 in applying state law in Keathley, that would not redress the holding in Keathley that sex offenders required to register under § 589.400.1(7) of SORA are not "exempt from registration by virtue of article I, section 13 of the Missouri Constitution." Of course, the Supreme Court of Missouri could then decide to revisit its decision in Keathley. But if it did, even if it accepted a lower federal court's contrary interpretation of § 16913, we have no reason to believe that the state Court would abandon its decision in Keathley that Article I, § 13 does not apply to sex offenders who must register under § 589.400.1(7). After all, that decision was entirely consistent with federal law as reflected in SORNA. In these circumstances, Bacon cannot show "a substantial likelihood that the [declaratory] relief requested will redress the injury claimed." Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 75 n.20 (1978) (quotation & citations omitted).

For the foregoing reasons, we dismiss as moot the appeal from the order denying a preliminary injunction and remand to the district court with directions to dismiss the complaint with prejudice.

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Footnotes

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1. The Ex Post Facto Clause of the United States Constitution does not apply to civil procedures, such as sex offender registration, unless they are sufficiently "punitive either in purpose or effect." Smith v. Doe, 538 U.S. 84, 92 (2003) (quotation omitted).

Back to Reference

2. The Honorable Henry E. Autrey, United States District Judge for the Eastern District of Missouri.

Back to Reference

3. See, e.g., May, 535 F.3d at 918-21 (Ex Post Facto Clause and APA); United States v. Waddle, 612 F.3d 1027, 1029 (8th Cir. 2010) (May is consistent with Carr v. United States, 130 S.Ct. 2229 (2010)); United States v. Hacker, 565 F.3d 522, 525-27 (8th Cir.) (Tenth Amendment), cert. denied, 130 S.Ct. 302 (2009).

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4. United States v. Shenandoah, 595 F.3d 151, 162-63 (3d Cir.), cert. denied, 130 S.Ct. 3433 (2010); United States v. Ambert, 561 F.3d 1202, 1209-10 (11th Cir. 2009).

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BULLETIN: Two States - CA and Texas have Recommended NOT to adopt the Adam Walsh Act

BULLETIN: Two States - CA and Texas have Recommended NOT to adopt the Adam Walsh Act

Thousands release from Indiana's sex and violent offender registry

 http://cfcoklahoma.org/New_Site/index.php?option=com_fireboard&Itemid=0&func=view&catid=80&id=4839#4846

Ask the ACLU to include SEX OFFENDER LAWS in their Categories of Injustices

Targeting: Virginia , Texas , Tennessee , see more...Virginia , Texas , Tennessee , NATIONAL ACLU, Florida , Alaska , Georgia , Michigan , Illinois , Vermont , Maine , Massachusetts , Connecticut , Rhode Island, New Jersey, Delaware , Maryland , Hawaii , Oklahoma , Alabama , Ohio , Kentucky , Mississippi , Wisconsin , Iowa , Minnesota , Nebraska , Oregon , San Diego, Nevada , Utah , Montana , Idaho , Kans.W.Missouri , Kans.W.Missouri , Wyoming , Colorado , and South Dakota

Started by: Citizens for Legislative Change, America

The government of these United States of America have begun a witch hunt on sexual activity in America.Many people who have NEVER touched a single child or raped anyone are now branded, some for the rest of their lives as Sex Offenders. The ACLU has taken on some of these insane laws but should do much more.

One state is even working on putting people on the public sex offender registry for not paying a traffic ticket,

Put on a public sex offender list for not paying a traffic ticket!

The insanity needs to stop. Help us to ask the ACLU to take notice of all the unconstitutional human rights violations around this nation by adding Sex Offender laws to their list of priorities.

Florida Action Committee (FAC): Child Sex Offender Disclosure Scheme - More Crazin...

Florida Action Committee (FAC): Child Sex Offender Disclosure Scheme - More Crazin...: "Community is urged to report perverts - News - Hemel Today Are you a pervert? Someone else might believe you to be."

Sex Offenders After Prison: Lifetime GPS Monitoring? - Legislation & Policymaking - FindLaw Blotter

Sex Offenders After Prison: Lifetime GPS Monitoring? - Legislation & Policymaking - FindLaw Blotter

or...

Treatment for a sexual predator costs a whopping $175,000 per person per year in New York: study

BY Rosemary Black
DAILY NEWS STAFF WRITER

Monday, June 21st 2010, 4:38 PM

Related News

The average annual cost of treating a locked-up sex offender is $96,000 (in New York State that number jumps to $175,000) – about twice what it would cost to put him through an Ivy League university, according to a nationwide Associated Press analysis. All told, the 20 states with “civil commitment” laws aimed at keeping sex offenders behind bars will spend close to $500 million this year on housing and treatment for more than 5,000 inmates.

The programs, formed back when states were more flush with cash than they are in the current recession, were meant to keep dangerous sex offenders considered capable of striking again locked up once they’d served their time. But the civil commitment programs are setting the states back by hundreds of millions of dollars annually and creating a problem for legislators. They must trim budgets but don’t want to be perceived by their constituents as soft on child molesters and other sex predators, reports the AP.

“I’ve heard people in a lot of the states quietly say, ‘Oh, my God, I wish we’d never gotten this law,” University of Maryland School of Law Prof. Lawrence Fitch told the AP. “No one would ever dare offer repeal because it’s just untenable.”

At a Moose Lake, Minn., facility, 400 sex offenders divide their time between group-therapy sessions and activities like painting state-park signs. Minnesota plans an expansion at Moose Lake, which resembles a medium-security prison.

What makes facilities like this one so expensive is the cost of all the treatment staff – behavioral therapists, social workers, psychiatrists and psychologists. For example, there is a treatment team consisting of five or six people for every 25 to 50 offenders at the Moose Lake facility.

Overall, the cost of keeping sex offenders in treatment costs more than five times what it does to keep offenders incarcerated, reports the AP, and this doesn’t include all the legal expenses incurred when committing someone.

Some wonder if the programs are even effective. Research shows treatment can only lower a sexual predator’s chances of committing another sex crime slightly – by a little less than 20%, Fitch told the AP.

As lawmakers with less money in hand continue to make cuts to education and health care, some wonder how viable the civil commitment programs are.

“It’s easy to say, ‘Lock everybody up and throw away the key,’ ” state Rep. Michael Paymar (D-St. Paul) told the AP. But, added Paymar, who heads a public-safety budget panel, “It’s just not practical.”

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