Maine does not have statewide mandated residency restrictions, and a report published by another legislative committee ten years ago in Maine raises major concerns and questions about this current proposed legislation.

In 2008, that committee produced a report titled, “Maine’s Criminal Justice & Public Safety Committee Study of Sex Offender Registration Laws.” It is a 37-page report representing hundreds of man-hours of research and meetings examining the effects of SORNA in their state and the alterations that were needed. SORNA, incidentally, does not require residency or proximity restrictions.

On the bottom of page 19 and continuing onto 20 of the report is a brief section dealing with residency restrictions. It acknowledges that some communities in the state have adopted these restrictions for their individual jurisdictions. And then it goes on to say:

Hearing testimony on these bills and educating ourselves about other states’ experiences with residency restrictions, the committee finds, and the research supports, that such restrictions do not increase public safety. Residency restrictions make it more difficult for sex offenders to reenter society and find stability (living and working arrangements) and make it more challenging for law enforcement to find and monitor offenders. Based on these findings, the committee recommends that the Criminal Justice and Public Safety Committee of the 124^th Legislature considers introducing legislation that would preempt the field of sex offender management and prohibit municipalities and other entities from adopting their own restrictions on sex offenders.”

One little paragraph that says it all. What a shame it is that they did not proceed with the proposed legislation or, if they did, that it was not successful.

The question is, why is this current committee so determined to compound something that already has been condemned as not only ineffective but detrimental to overall public safety?

Of course, they are not the only state to do so. California, one of the harshest states historically in its erections of residency and proximity restrictions, goes directly against its own Sexual Offense Management Board, which said, “There is no research which supports the use of these strategies [residency and proximity restrictions], there is substantial research showing that such policies have no effect on preventing recidivism, and there is a growing body of research which indicates that residence restrictions actually increase sex offender recidivism and decrease community safety” (p.2).

Other states as well have jurisdictional or statewide restrictions that are in total opposition to the recommendations of the sex offender management boards that they have commissioned to give advice and oversee sexual offense laws and ordinances.

While Texas has no statewide restrictions, certain Texas cities have restrictions so stringent that registrants have been forced to give up desperately needed jobs that they were offered. There was literally no way they could navigate, by car or by bus, the route between where they lived and the location of the job without going into or through a restricted area around a school or daycare facility, and there was no place they could live closer to the job.

The report rendered by that Maine legislative committee ten years ago, that statement by the California board, and every single study or report examining the efficacy of residency and/or proximity restrictions for those on the registry are uniform in their conclusions. These restrictions are ineffective and actually harmful to public safety.

Any legislator who is advocating for such restrictions, including Rep. Danny Martin, should be made to answer directly this question: Why are you asking your constituents to spend tax dollars implementing laws that are shown by every available source to be not only useless but actually harmful to your state?

The statute is susceptible to multiple interpretations, and the issue has yet to be explored in North Carolina’s appellate courts. My sense is that not all 100 sheriffs in North Carolina apply the law in exactly the same way. And that’s understandable, because I can think of more than one interpretation that makes sense as a policy matter.

For example, a strict property-line-to-property-line approach isn’t a great fit in a rural area where a person’s actual residence might be many thousands of feet from the edge of his or her property. And measuring the distance as the crow flies may fail to take into account barriers like rivers and interstate highways that might effectively buffer a school or child care center by more than the required distance. It’s also challenging to apply the law to rental properties, where a registrant’s individual unit might be more than 1,000 feet from a protected place, but portions of the broader complex—perhaps including common recreation areas, like a perimeter walking trail—fall within the prohibited radius. All of these questions (and many more) have come up in real life.

Even if the “right” way to measure the distance may be open question for now, I do think the statute itself may give us some answers.

As to where to begin the measurement on the side of the protected place (the school or child care center), I think it’s reasonably clear that that measurement begins at the edge of the property line. The statute says the registrant may not reside “within 1,000 feet of the property on which any public or nonpublic school or child care center is located.” That reference to the broader property is hard to square with a reading that starts the measurement at the school or child care building itself.

The other end of the measurement is less clear. It refers just to the place where the registrant “reside[s],” which could be read to mean only the actual dwelling place and not the surrounding land. Had the General Assembly wanted to make clear that the distance was to be measured from the edge of the property line of the residence, it could have phrased the law differently, saying registrants could not reside “on property that is within 1,000 feet” of a school or child care center. That would parallel the structure the law uses for the protected places. And with that in mind a registrant could certainly make the argument that when the legislature wants the prohibition to extend to the property line, it knows how to say so, but it didn’t. Furthermore, to the extent that there’s any ambiguity in this criminal provision, a court would generally look to resolve it in the defendant’s favor.

Please read full article at North Carolina Criminal Law (a blog of UNC School of Government)

Cases like this might seem to argue for even tougher controls on ex-offenders convicted of sex crimes. But new research indicates that the existing sex-offense regime in the US actually may be making repeat sex crimes more likely.

Since the mid-1990s, legislators have devised increasingly byzantine rules for those who have been punished. Those include sending out postcards when an offender moves to a neighborhood, placing warning signs outside offenders’ homes, setting restrictions on what offenders can do on Halloween, and devising “presence” restrictions banning them from places like parks, malls, and museums where children might be present. That ever-tightening leash has produced unintended outcomes with an almost mechanical predictability. Many cities have devised new no-go zones that keep them from living near places like school, parks, and daycares and have seen their homelessness rates spike as a result.

California passed a law in Nov. 2006 forbidding parolees who’d committed a sex crime from living within 2,000 feet of schools or parks. Less than five years later, the number of them who were homeless had risen from 88 to almost 2,000. In Oct. 2014, Milwaukee passed an ordinance banning many registrants from living within 2,000 ft of schools, parks, day cares, recreational trails, and playgrounds. The number of homeless registrants promptly soared from 15 to 230 in less than two years, according to an analysis in Oct. 2016 by the Milwaukee Journal Sentinel.

Now, new research suggests making it harder for offenders to find a place to live might increase reoffending. In a study released in July 2016, researchers from the California and Canadian justice departments looked at more than 1,600 California sex offenders on probation or parole. Overall, the group’s sex-crime recidivism rates were low–less than 5% during the five-year follow-up period. But those who were homeless were over four times more likely to commit a repeat sex crime than those who weren’t. “Collectively, transient status seems to be associated with higher sexual recidivism rates,” the researchers concluded. That’s likely because those who lack stable homes, jobs, and social connections are more prone to reoffend.

Please read the rest of Steven’s article courtesy of Quartz.

[Alert Conspiracy readers will recall that the Supreme Court has agreed to review a decision by the North Carolina Supreme Court that rejected a First Amendment challenge to a different section of the N.C. sex offender regulatory scheme — one that imposes criminal penalties on sex offenders who “access … commercial social networking websites” for any reason. Eugene and I have blogged extensively about this case: See here, here, here, and here].

In this case, the statute in question made it a Class H felony (punishable by “a presumptive term of imprisonment of 20 months) for sex offenders to “knowingly be” at any of the following locations:

(1) On the premises of any place intended primarily for the use, care, or supervision of minors, including, but not limited to, schools, children’s museums, child care centers, nurseries, and playgrounds.
(2) Within 300 feet of any location intended primarily for the use, care, or supervision of minors when the place is located on premises that are not intended primarily for the use, care, or supervision of minors, including, but not limited to, places described in subdivision (1) . . . that are located in malls, shopping centers, or other property open to the general public. [Or]
(3) At any place where minors gather for regularly scheduled educational, recreational, or social programs. NCGS 14-208.18(a).

The court held, first, that the provisions of subsection (3) are unconstitutionally vague; “neither an ordinary citizen nor a law enforcement officer could reasonably determine what activity was criminalized by subsection (a)(3).”

Two principal problems are evident in subsection (a)(3) which compel the conclusion it is unconstitutionally vague. In particular, a reasonable person, whether a restricted sex offender or a law enforcement officer, cannot reasonably determine (1) whether a program for minors is “regularly scheduled” or (2) what places qualify as those “where minors gather.” …

The term “regular” means happening at fixed intervals. Even if a restricted sex offender or law enforcement officer knew precisely how often and where the “scheduled programs” took place, the statute provides no principled standard at all for determining whether such programs are “regularly scheduled.” Notably, subsection (a)(3) provides no examples to guide restricted sex offenders or law enforcement as to how frequently the programs would need to occur in order to be “regularly scheduled.” …

Subsection (a)(3)’s “where minors gather” language is also without defining standards. For example, subsection (a)(3) does not explain how many minors must gather at the place. Subsection (a)(3) also does not explain whether a place where mixed groups of minors and adults gather, such as a community college that has some high school students or a church with a congregation of adults and minors, would be considered a restricted zone under subsection (a)(3).

Additionally, the court found that subsection (a)(2) could not withstand “intermediate scrutiny” under the First Amendment:

To pass intermediate scrutiny, a statute must materially advance[] an important or substantial [government] interest by redressing past harms or preventing future ones. In addition, it must have the right “fit.” That is, it cannot burden substantially more speech than is necessary to further the government’s legitimate interests.

The burden of establishing the required fit is placed “squarely upon the government,” and North Carolina failed to meet it — by a goodly distance, failing to present any evidence whatsoever that the statute advanced the state’s interest in protecting minors in any way. At trial, the district court “put the State on notice that its limited evidence was inadequate to meet its burden of proof, but the State “explicitly declined to introduce any additional evidence.”

[The State’s] decision to not provide expert testimony or statistical reports to the Court was somewhat unexpected. … The State tries to overcome its lack of data, social science or scientific research, legislative findings, or other empirical evidence with an appeal to “logic and common sense.” But neither anecdote, common sense, nor logic, in a vacuum, is sufficient to carry the State’s burden of proof.

[T]he State cannot rest its case on the conclusory assertion that minors would be “more exposed to harm without [this] prohibition than with it.” Without empirical data or other similar credible evidence, it is not possible to tell whether subsection (a)(2) — and specifically its application to offenders with only adult victims — responds at all to the State’s legitimate interest in protecting minors from sexual assault.”

That might seem an unspectacular point; if the State offers no evidence at all that the statutory prohibition does anything to ameliorate the evils at which it is aimed, it cannot possibly satisfy the State’s burden of demonstrating that the statute “materially advances” the State’s interest. It is noteworthy, however, because so many other courts have meekly accepted the “conclusory assertion,” based on “common sense,” that the statute does more good than harm, and does not burden more speech than necessary to accomplish that good. [In the other North Carolina case referred to above, for example, the state presented no evidence that the ban on accessing social networking sites was, in fact, effective in any way at protecting minors — but the North Carolina Supreme Court upheld it anyway].

So kudos to Judges Motz, Traxler and Agee. This is just what the federal courts are supposed to do when constitutional rights are at stake: hold the government’s feet to the fire, and demand that they demonstrate that have a damned good reason for doing what they’re doing.

(Source:The Volokh Conspiracy of The Washington Post.)

A new law that went into effect Sept. 1 bans the more than 17,000 registered sex offenders at the 163-year-old event. Supporters of the law say it protects children attending the fair from harm.

“It’s a place where there’s a lot of children, a lot of children running around, without direct parental supervision, who may be at risk if predators are around,” said Sen. Buck Newton, a Johnston County Republican who sponsored the bill. “It made sense to me. I don’t remember anyone voting against it.”

But the head of a new group that advocates on behalf of the state’s registered sex offenders says the law deprives an entire class of people of their civil rights. Robin Vanderwall, who co-founded the North Carolina chapter of Reform Sex Offender Laws (NCRSOL), said the group intends to file a lawsuit in federal court before year’s end seeking to have the new law declared unconstitutional.

The bill was introduced at the urging of state Agriculture Commissioner Steve Troxler, who earlier this year said the state needs tougher laws to ban sex offenders from the fair. During the 2015 State Fair, Wake County sheriff’s deputies arrested four registered sex offenders at the fair, including someone who was initially charged with flying a drone over the event and a convicted child molester who was charged with posing as a state inspector to get into an area reserved for children’s rides.

Only one of the four was wearing an ankle bracelet that some sexual offenders are required to wear, said Wake County Sheriff Donnie Harrison. The bracelets are equipped with global positioning systems that enable probation and parole officials to monitor the wearer’s movements.

Harrison said his office is working with probation and post-supervision officers across the state to identify sex offenders who may try enter the fair. If a sex offender wearing an ankle bracelet gets within a certain distance of the event, someone will call the sheriff’s office, Harrison said.

“If the person is inside the fairgrounds, we will pass that individual’s picture out to our officers,” he said. “It’s a good game plan, and it’s evidently working. We haven’t had any arrests.”

State Fair spokesman Brian Long said the Department of Agriculture and Consumer Services supported the bill and monitored its progress in the General Assembly, where it passed unanimously in both chambers and was signed by Gov. Pat McCrory on July 21.

“We wanted to make it clear because of the number of children who come here,” Long said. “It’s a child-oriented, family event. We wanted to keep it that way.”

But Vanderwall said it’s unfair to violate the civil rights of registered sex offenders who have served their criminal sentences and fulfilled all of their probation or post-release supervision obligations. He likened the new law to old Jim Crow laws.

“For the first time since 1891, thousands of North Carolina citizens and taxpayers are legally prohibited from attending the state fair,” Vanderwall said in a press release. “African Americans were officially ‘uninvited’ to attend in 1891 and remained ostracized from fair activities until the creation of so-called ‘Colored days’ in the early Twentieth Century.”

Vanderwall said that of the state’s more than 17,000 registered sex offenders, only 28 have been determined by the courts to be sexually violent predators. Vanderwall said the designation has to be declared by a judge who has reviewed expert testimony that shows an individual’s sexual predilections are untreatable and the person is mentally ill and likely to repeat the offense.

“I’m sure Donnie Harrison can flag 28 people to keep them out of the State Fair,” he said. “That’s easier than banning 17,000 people.”

Newton said state legislators who supported the law had “difficult decisions to make.”

“We have to respect the rights of people with a history [of sex offenses], against the legitimate work of trying to protect children against those who might commit future acts,” he said.

Source: The News & Observer

The decision is an especially important one, possibly signaling, in Mark Stern’s words over on Slate, that “the judiciary has finally begun to view draconian sex offender laws as the unconstitutional monstrosities they obviously are.”

Here’s the case, in a nutshell. The Michigan SORA is typical of the schemes in place in all of the 50 states. Beginning in the mid-’90s, states (with federal encouragement and financial assistance) began requiring all those who had been convicted at any point in the past of having committed a “sex offense” — typically defined, as in the federal statute (42 USC 16911), as “a criminal offense that has an element involving a sexual act or sexual contact with another”** — to provide a wide range of identifying information (names, addresses, places of employment, schools being attended, vehicle make and model, etc.) to law enforcement officials. This information was then placed in state-operated, publicly accessible sex offender registry databases.

** Definitions of the “sex offenses” that require registration vary state by state. While a number of truly heinous and deplorable crimes — rape, assault, child molestation — are included, so too, as detailed in a survey by Human Rights Watch, are many lesser crimes, such as soliciting or providing adult prostitution services (five states), public urination (13 states), consensual sex between teenagers (29 states) and exposing genitals in public (32 states).

Several of these early SORAs were challenged on ex post facto grounds, on the theory that the registration and public notification schemes imposed additional punishment retroactively, i.e., on individuals whose crimes had been committed, and who had been convicted, before the SORA legislation had taken effect (and, indeed, on individuals who had completed serving whatever period of punishment and probation or parole had been imposed upon them, and who therefore, at least in theory, possessed the same constitutional rights as you or me).

The Supreme Court, however, disagreed. In Smith v. Doe, 538 US 84 (1999), the Court held that the registration and public notification provisions of Alaska’s SORA didn’t constitute ex post facto imposition of punishment because they were not “punitive,” but rather “regulatory”: “clearly intended as a civil, non-punitive means of identifying previous offenders for the protection of the public.” The “stigma and adverse community reactions” that could result from registration did not render the Act punitive because “the dissemination of the registration information, which was largely a matter of public record, did not constitute the imposition of any significant affirmative disability or restraint.”

Please see David’s full analysis at The Volokh Conspiracy in the Washington Post.

The new law bans offenders whose victims were under 18, or anyone legally deemed a threat to children, from many places kids may gather. It replaces a previous law a judge deemed too vague in 2009.

Haywood County leaders say the new law lays out specific places sex offenders can’t go.

“It would prevent people who are registered sex offenders from going into libraries, from going to schools, from going to the fairgrounds when the fair is on,” County Manager Ira Dove said.

“I think it’s good. They need to stay away,” parent Amber Williams said.

“I think once you’ve committed a crime against children, there’s no going back,” parent Heather Russell said.
The law is named after Jessica Lunsford, a 9-year-old girl from Gastonia, who was killed by a sex offender after she moved to Florida in 2005.

The new law also bars sex offenders from going within 300 feet of places like shopping centers or other public places used mainly for the care or supervision of minors.

Not everyone thinks the law is fair. The North Carolina president of “Reform Sex Offender Laws” said it’s overly restrictive, narrowly interprets “sex offender,” and calls the restrictions “unconstitutional deprivations of liberty.”

“There must be some scrutiny, some level of scrutiny that protects people who are no longer under any court order, who are no longer serving any kind of time,” Robin Vanderwall, President of the North Carolina chapter of Reform Sex Offender Laws, said.
“I understand it in that perspective. But, I still don’t think…I mean…doing better or not…they still did what they did,” Russell said.

Opponents of the law plan to fight it.

“Our essential hope, legally speaking, is to finally put the state up against the wall when it comes to the presumption of dangerousness,” Vanderwall said.

Parents remain resolved.

“No kid needs to be around that. It’s awful. It is,” Williams said.

Please see full news video on WLOS News ABC 13

That’s why it’s so important to monitor and supervise convicted sex offenders, because there is a too-strong possibility that they will commit the crime again.

So we have sex-offender registries that track where convicted offenders live and work. We have laws that separate them from children, barring them from day-care centers, schools and other places where children congregate. And we keep them subject to those regulations long after they have been released from jail and even parole. Sex offenders face greater monitoring and supervision than even paroled murderers.

A tough new North Carolina law takes effect Thursday, and it imposes long-term penalties on sex offenders that are simply too harsh.

A story in Thursday’s Observer related the dilemma faced by a former offender who works at a car-repair shop within 300 feet of the Boys & Girls Club of Cumberland County and a day-care center. Under the new law, if he goes to work Thursday, or any day thereafter, he’ll be arrested. More than 650 registered offenders in Cumberland County alone could face the same problem. In cities, especially, it may be difficult to find a place of employment that’s at least 300 feet from a place where children congregate.

Experts on sex-offender laws say this makes North Carolina’s statute tougher than any in the country except Alabama’s. It could bar offenders from even working in, or patronizing, businesses such as Walmart or McDonald’s.

The Cumberland County Sheriff’s Office is responsible for maintaining the offender registry here, for tracking offenders and for arresting violators. Ronnie Mitchell, the lawyer for the Sheriff’s Office, says the law is too broad and punitive and should be rewritten and more carefully targeted. Offenders who abuse children under 13, he says, should get more restrictions than, say, someone who has consensual sex with an older minor and doesn’t even realize it’s a violation of the law until later.

We would expect that level of distinction in the law, and the General Assembly should put it there. There are varying levels of sex offenses, and the harshest restrictions should be applied to the most flagrant offenders – the ones who target young children.

Lawsuits against this new law are expected soon. Lawmakers need to fix the problem in the next session. (From the Fayetteville Observer)

Judge Alice M. Batchelder wrote for the court, joined by Judges Gilbert S. Merritt and Bernice B. Donald. Her opinion for the court begins.

Like many states, Michigan has amended its Sex Offender Registration Act (SORA) on a number of occasions in recent years for the professed purpose of making Michigan communities safer and aiding law enforcement in the task of bringing recidivists to justice. Thus, what began in 1994 as a non-public registry maintained solely for law enforcement use . . . has grown into a byzantine code governing in minute detail the lives of the state’s sex offenders . . . Over the first decade or so of SORA’s existence, most of the changes centered on the role played by the registry itself. In 1999, for example, the legislature added the requirement that sex offenders register in person (either quarterly or annually, depending on the offense) and made the registry available online, providing the public with a list of all registered sex offenders’ names, addresses, biometric data, and, since 2004, photographs. . . . Michigan began taking a more aggressive tack in 2006, however, when it amended SORA to prohibit registrants (with a few exceptions . . .) from living, working, or “loitering”1 within 1,000 feet of a school. . . . In 2011, the legislature added the requirement that registrants be divided into three tiers, which ostensibly correlate to current dangerousness, but which are based, not on individual assessments, but solely on the crime of conviction. . . . The 2011 amendments also require all registrants to appear in person “immediately” to update information such as new vehicles or “internet identifiers” (e.g., a new email account). . . . Violations carry heavy criminal penalties.

The Plaintiffs in this case—identified here only as five “John Does” and one “Mary Doe”—are registered “Tier III” sex offenders currently residing in Michigan. It is undisputed on appeal that SORA’s 2006 and 2011 amendments apply to them retroactively. That law has had a significant impact on each of them that reaches far beyond the stigma of simply being identified as a sex offender on a public registry. As a result of the school zone restrictions, for example, many of the Plaintiffs have had trouble finding a home in which they can legally live or a job where they can legally work. These restrictions have also kept those Plaintiffs who have children (or grandchildren) from watching them participate in school plays or on school sports teams, and they have kept Plaintiffs from visiting public playgrounds with their children for fear of “loitering.” Plaintiffs are also subject to the frequent inconvenience of reporting to law enforcement in person whenever they change residences, change employment, enroll (or unenroll) as a student, change their name, register a new email address or other “internet identifier,” wish to travel for more than seven days, or buy or begin to use a vehicle (or cease to own or use a vehicle).

Read full story in the Washington Post blog Volokh Conspiracy

You may also be interested in the AP story published in The Detroit News