SB 1698, sponsored by Senator Justine Wadsack, would make it a felony for parents to take their child to a drag show. The parents would have to register as sex offenders, too. SB 1030, sponsored by state Senator Anthony Kern, would make it a felony for some businesses to host drag shows.

Republicans in the Arizona Senate can’t decide if they want to label drag performers as sex workers or sex offenders. So, why not both?

SB 1698 would add drag shows to a state law about “dangerous crimes against children.” The bill defines drag shows as adult-oriented performances and compares them to bestiality, child sex trafficking, second-degree murder, and sexual assault.

Under the proposal, adults who allow children to see drag shows could receive prison terms of five years and be required to register as sex offenders.

Wadsack said the idea for the bill came from conversations she had with the Log Cabin Republicans and Gays Against Groomers, two gay yet anti-trans conservative groups.

By a 3-1 vote, the Senate Judiciary Committee passed the bill on February 16. Its next step could be a vote by the full Senate.

Kern, Wadsack, and fellow Republican Senator Wendy Rogers voted to advance the bill. Democratic Senator Anna Hernandez cast the lone vote against it.

Republican Senator John Kavanagh did not vote. Democratic Senators Christine Marsh and Mitzi Epstein also did not vote. Why not? Because Kern, the committee chair, asked lawmakers to leave the hearing in shifts for lunch so members could continue considering legislation on the agenda. Kavanagh, Marsh, and Epstein were the first to leave, along with several people in the audience scheduled to testify.

Then, the bill passed with virtually no testimony or discussion in mere minutes.

SB 1030 would require permits for drag shows and zone businesses that host them as an “adult-oriented business,” citing the shows as “sexually explicit.” The bill lumps drag shows in the same category as cabaret, adult entertainment, and even sex work.

Under the proposal, drag queens wouldn’t be allowed within a quarter-mile of any school or playground.

By a 5-3 vote, the Senate Government Committee passed the bill on February 16, and it can now be considered by the full Senate. Wadsack, Rogers, and fellow Republican Senators David Farnsworth, Janae Shamp, and Jake Hoffman voted to advance the bill. Democratic Senators Juan Mendez, Priya Sundareshan, and Eva Diaz voted against it.

The proposal defines a drag show as one in which drag performers “engage in singing, dancing, or a monologue or skit in order to entertain an audience of two or more people.” Critics of the legislation said the broad definition was problematic.

“The definition of drag shows doesn’t actually say anything about sexually explicit content. This bill would include a lot of things that aren’t even drag,” Jeanne Woodbury, interim executive director for Equality Arizona, told Phoenix New Times. “That creates a huge problem that isn’t within the scope of actual adult-oriented businesses.”

Business owners who host drag shows are worried that the bill threatens their livelihoods.

“Bars like mine are only open to people over 21 and are already highly regulated,” said Jeff Parales, owner of Kobalt in Midtown. “This new regulation will put an undue burden on businesses like mine.”

Parales said that labeling all drag queens as sexually explicit is a “red herring.” The bill is similar to “what they’re doing in Communist China and totalitarian regimes like Iran,” he said.

Hoffman, the committee chair, interrupted Parales’ testimony. “In those countries, they throw homosexuals off of roofs and kill them. You are out of order. If you continue speaking, you will be removed,” Hoffman said.

Hoffman then admitted that he has never been to a drag show.

This is available 20 years after release from confinement, or if no confinement from sentencing – as long as you have no class A misdemeanor, felony, or capital felony in the last 20 years.

Perhaps North Carolina should seriously consider a similar law.

Nebraska vigilante case just another in a string of similar incidents

On Saturday, May 16, Mattieo Condoluci, a publicly registered sex offender, was found shot to death inside his Omaha, Nebraska home. James Fairbanks, also of Omaha, surrendered voluntarily, took responsibility for the murder, and is being held in the Douglas County jail. Fairbanks stated that he learned of Condoluci’s status as a convicted sexual offender via the Nebraska sex offender registry.

Fairbank’s wonton murder of Condoluci’s (who is required by law to register as a sex offender) is just the latest in vigilante murders facilitated by public access to a sex offender registry:

• Washington State in 2005 – two registered people murdered;
• Maine in 2006 – two registered people murdered;
• California in 2011 – one registered person murdered;
• Washington State again in 2012 – two registered people murdered; and
• South Carolina in 2013 – two people murdered – one registered person and his wife.

These are just the best documented cases; there have been more, an indeterminable number more. These cases, in addition to all being cold-blooded murders carried out by vigilantes, have one thing in common: They were all facilitated by nothing other than the victim’s existence on a public sexual offender registry.

“There are individuals out there,” said Brenda Jones, NARSOL’s executive director, “who feel they have the right to kill those whose past actions they find despicable. The posting of names and addresses on a public shaming registry is telling these individuals exactly where to go.”

The efficacy of sexual offender registries in reducing recidivism and improving public safety is shown to be nonexistent.

According to Sandy Rozek, NARSOL’s communication director, “There is no justification in preserving a system that does not reduce re-offense rates, does not lower the rate of sexual assault, and that, rather than contributing to public safety, increases the danger to the public in many ways, one of which is painting a target on the foreheads of those with previous sexual crime convictions and giving their would-be killers a roadmap to their doors.”

NARSOL condemns, in the strongest possible terms, vigilante activity, most especially murder, of persons on sexual offense registries and calls on the federal government and states to immediately take the necessary steps to eliminate the online dissemination of these registries. ]]> https://ncrsol.org/2020/05/civil-rights-organization-calls-on-state-federal-govts-to-abolish-registries/feed/ 9 3992 https://ncrsol.org/2020/04/sex-offender-studies-are-missing-out-on-good-information-by-not-interviewing-the-registrant/ https://ncrsol.org/2020/04/sex-offender-studies-are-missing-out-on-good-information-by-not-interviewing-the-registrant/#respond Fri, 03 Apr 2020 12:15:52 +0000 https://ncrsol.org/?p=3895 by Dwayne Daughtry — In recent weeks there have been, what seems, a slew of survey studies by various people claiming to be with universities targeting people on the sex offender registry. To some, this can be somewhat of pleasant news. To others, it seems like a risky attempt by using the sex offender community as guinea pigs. 

Before you click on that website claiming to be a university study, take a moment to examine if the study will help or make worse situations within the sex offender community. There have been countless news articles, individual stories, and even a film about the lives and conditions of those on the registry.

However, despite all the media attention, very little has come to fruition to benefit registrants. There have been university studies and scholarly journals identifying the harmful effects of the sex offender registry. Yet, these studies and journals fall on deaf ears to policymakers and the general public. 

Universities, in general, mostly public, are a cash cow of research grants raking in billions of dollars annually in research funding. Suddenly the most disenfranchised group of citizens in the United States are sitting idly by while paid researchers are asking probing questions without delivering a dime to registry organizations or the registrants themselves for their time and information.

Perhaps now is a decent time in the movement to end the registry to stop the bubble sheets of a path to nowhere and redirect those dollars and conversations. A majority of registrants are unemployed, underemployed, uninsured, homeless, and emotionally bankrupt due to sex offender policies and the registry. Nearly thirty years of scholarly research, policy making, and studies have made universities wealthy and the registry community much more poorer. It is high time for some change. 

If sociologists, psychologists, criminologists, public policy scholars, and economists want to better look inside the world of the sex offender registry community, then it should begin with conversations and listening to stories. Data gathering and bubble sheets don’t tell the story at all. Sit down with someone on the registry and listen to their story. The fear of the registrant may suddenly change attitudes that the registry and emotion laden laws are the most harmful and dangerous. 

Registrants are already well aware that plea deals, exaggerated and often inflated evidence, undercover sting operations, and overly political based zealous prosecutors are the basis of how people end up on the registry. Sex offender registries all over America have become similar to Facebook friends. Facebook friends are not your real friends. Therefore, sex offender listings are not the worst of the worst. 

There is never really a pursuit of the truth or motive in the courtroom. Why on earth should there be a pursuit of the truth in a scholarly journal; if people won’t take the evidence to reign in current policies? The courtrooms of legal opinions have shifted to the court of public opinion. I believe it will take decades to change the mentality. 

Stories tell a much better assessment. A survey, despite having all the requirements of documents claiming to protect the rights and welfare of human research subjects, isn’t helping the registry community.

In some cases, research facilitated by those that do not understand the impact of the registry can be much more detrimental and potentially useful if used to guide policy towards harsher restrictions. 

Before you click on that free study that you think will help the sex offender community. Take a moment and pause. Think for a minute. Ask yourself, “what is this information going to be used for, and why?” You decide.

However, are you benefiting today from that study? Perhaps not. It is time to stop the Nineteen Eighty-Four: A Novel studies and return to good old fashioned individual stories about life on the registry. 

Strategies for reducing COVID-19 exposure by revising the implementation of registration policies, housing banishment laws, and other restrictions impacting people with convictions

MARCH 28, 2020 – We join numerous criminal justice organizations that have issued policy recommendations to prevent the spread of COVID-19 by suspending or eliminating non-essential police and court functions, while ensuring that law enforcement resources are used wisely to keep communities safe.

This guidance focuses on policies affecting people listed on sex offense registries. More than 900,000 Americans are subject to registration and/or housing banishment laws. The nature of these rules and regulations and the enormous number of people who must comply with or enforce them, raise urgent concerns about public health and resource allocation in this extraordinary time.

During the registration process, people are typically required to fill out forms stating their address, employer, school, phone number, vehicle data, etc. and to return, in person, to report even trivial changes.  These cumbersome registration processes tie up sworn officers who could instead be investigating crime, attending to emergencies, and assisting people in crisis.

Housing banishment laws often prohibit people from residing in the vast majority of residential areas of a city or town. As a result, those with stable homes, or several housing options, frequently become homeless anyway. This false scarcity of housing also increases prison populations as people have no legally authorized home in which to serve their parole or probation.

Even before COVID-19, the unintended consequences of these policies were well documented. The current pandemic, however, adds urgency to revise current registry and banishment practices as many of them undermine the critical public health measures being implemented nationwide to contain its spread.

The following strategies would reduce COVID-19 exposure among law enforcement officials and those required to register, as well as their families at home, and the broader community:

1. Suspend in-person registration requirements. Registration requires frequent in-person visits to police stations or jails, where dozens of people commonly congregate in waiting rooms or bullpens, multiplying the risk of transmission of COVID-19. Following the lead of Oregon and other jurisdictions, this process should be modified.
2. Waive or suspend housing banishment laws and other housing restrictions. People experiencing homelessness need emergency housing in order to comply with stay-at-home orders or self-quarantine. But many people listed on “homeless registries” have places they could otherwise reside: housing restrictions alone caused their homelessness. Likewise, prisons have backlogs of people incarcerated past their release dates, or who would be released on parole or probation supervision, if so much housing were not barred. Suspending these restrictions will allow cities to house people more efficiently, conserve emergency beds, and give prison officials the flexibility to place people in homes they already have available. This will protect their populations from the heightened risk of contagion created by needless incarceration and homeless encampments when there are safe available homes for people on the registries.
3. Waive or suspend arrests and prosecutions for failure-to-comply offenses. “Failure to comply” charges are the result of a missed deadline to reregister or update registration. Akin to technical parole violations, these are often hyper-technicalities that stem from the difficulty of following so many onerous reporting requirements, and have no reported correlation to public safety. Despite this, they contribute to jail and prison churn, risking increased transmission of the virus.
4. Suspend fees for registration. Economists are projecting 14%-20% GDP contraction for this quarter and unemployment in double-digit rates. Many people have already lost their incomes as a result of the shutdowns. People with past convictions are far more likely to be poor, with reduced job prospects. Non-payment of these fees can result in failure-to-comply charges; during this crisis registration fees should be suspended.
5. Suspend in-person address verifications. Routine police visits to the addresses of people listed on registries, for the sole purpose of an address check, should be suspended. These visits are widespread, and number in the tens of thousands. At a time when even 911 calls are under stress, law enforcement should be able to redirect their resources as needed.
6. Suspend Internet access restrictions. Some people who are on probation or parole are forbidden from accessing wide swaths of the Internet, and some states have laws limiting Internet access for people listed on a conviction registry. During this crisis, access to the Internet has become even more critical: nearly everyone must rely on Internet access for work, news, homeschooling, services, and family connections. Individual safety, as well as public health compliance, requires timely online access to crucial information about social and health services, as well as access to medical services that are moving online.
7. “Step down” people in civil commitment. More than 6,000 people are locked post-sentence in prison-like state civil commitment facilities, that pose the same coronavirus dangers to staff and detainees as jails and prisons. States should speed up “step-down” procedures and move people into supervised community settings.

CONCLUSION

State conviction registries were intended to be a tool for law enforcement officials and were limited in scope. In the past quarter century, legislators expanded these public databases and added hundreds of additional reporting requirements and other restrictions, including housing and public space banishment laws, and long-term confinement in civil commitment. Research shows that at least 95% of those arrested for a sexual offense have never had a previous sex offense conviction, while most people currently required to register are unlikely to be re-arrested for a sexual offense.  Rather than improve public safety, these regulations:

• Systematically displace people from housing and employment,
• Weaken the resilience of families and communities coping with crime and mass incarceration,
• Divert critical resources away from crime survivors and proven prevention strategies and expand them on regulating the few people who have already been held accountable and punished.

In contrast, public safety and crime reduction principles emphasize a public health approach to prevention, involving, among other things, primary prevention, focusing on the warning signs inside familial and social circles, and building early and comprehensive support and intervention for people, families, and communities most impacted by violence.

We urge policymakers to suspend rules and policies that are not essential to public safety or that contribute to the spread of COVID-19. These strategies allow law enforcement, on the frontlines of this catastrophe, to dedicate more of their limited resources toward crisis intervention and emergency assistance

Click here to read the entire article

An official with the Kentucky State Police says 23-year-old Jesse Gibson has been charged with murder and kidnapping of Elijah Rader. Gibson is currently being held without bond at the Jackson County KY Detention Center. Police say that Rader was reported missing on January 31st.

Kentucky State Police are asking for the help of locating 48-year old Bruce Carr and 35-year-old Melissa Gulley, who are being sought for murder and kidnapping in connection to Rader’s death.

Police say the two are considered to be armed and dangerous. Anyone with information is asked to contact their local law enforcement agency.

The police wouldn’t comment or speculate at this time if the crime was motivated by the person being on the sex offender registry.

On May 30, 2018, Judge Biggs ordered the plaintiffs to submit a more definite statement clearly identifying the factual allegations that support each claim for relief, the specific statutory provision(s) of which plaintiffs complain, and the specific claim(s) alleged against each defendant named in the complaint.

In response, on July 6, 2018, plaintiffs’ attorney removed certain allegations of constitutional harm contained in the original complaint and filed them as a new case in the Federal District Court for the Middle District of North Carolina. That case (styled NCRSOL v. Stein) is currently before Judge William Lindsay Osteen, Jr.

On the same day, plaintiffs’ attorney filed an amended complaint that left in place all the underlying facts and legal arguments presented as Ex Post Facto claims in the original complaint.

Then we heard birds chirping by day and crickets chirping by night for more than a year. From time to time, someone would send an email or post a comment inquiring about the status of the North Carolina cases. The state got so bored it replaced its attorney. There was much wringing of hands and chattering of teeth.

Finally, on July 30, 2019, we got some long awaited and positively good news. The state’s motion to dismiss was denied. So now the hard work begins. The case moves into the discovery phase in preparation for trial.

The state’s motion to dismiss relied, as expected, primarily upon some important procedural rules included in the Federal Rules of Civil Procedure (FRCP), specifically Rule 12(b)(1), Rule 12(b)(2), and Rule 12(b)(6). So what are these rules?

Yes, this is going to sound a lot like legal mumbo jumbo. If this frustrates you, then stop reading right here! You’ve been fairly warned.

Rule 12(b)(1) states that a defendant may move a federal court to dismiss a plaintiff’s claim on the basis that the court lacks subject matter jurisdiction. In other words, the court can’t really “hear” the claim because it doesn’t have any authority over the matter being presented for consideration. This is where you may have heard it said that a plaintiff lacks standing to sue.

It is under Rule 12(b)(1) where attorneys representing the state usually include an Eleventh Amendment defense, as well. It normally comes in several forms ranging from, “The federal courts should defer to the state’s understanding of its own regulatory laws,” to, “The federal courts should not intervene in a legal dispute where there has been no fair adjudication of the matter by state-level courts,” to “The state’s statute of limitations precludes a federal court from considering a legal challenge that exceeds the time bar imposed by state law.” In most of these cases, the federal courts will often agree. But, when it comes to claims against state laws that are alleged to be unconstitutional, federal courts are duty bound to consider a challenge which alleges an ongoing violation of federal law.

Rule 12(b)(2) states that a defendant may move a federal court to dismiss a plaintiff’s claim on the basis that the court lacks personal jurisdiction. In other words, no matter what the claim is and no matter whether the court could actually “hear” the claim, the court doesn’t have any authority to enforce a judgment against the people who are named as defendants in the lawsuit. Sometimes you will hear this spoken about as immunity.

Rule 12(b)(6) states that a defendant may move a federal court to dismiss a plaintiff’s claim on the basis that the plaintiff has not presented a claim upon which relief can be granted. This rule is the kitchen sink of federal procedural rules. There are really two practical parts to it. When using Rule 12(b)(6), a defendant is trying to say one of two things, and sometimes both. The defendant is either saying that the plaintiff has not made what’s called a “cognizable claim” or that the plaintiff has not articulated any facts that support the “cognizable claim.” But, most of the time, the defendant is saying both. It’s laws and facts. And both are necessary to withstand a motion to dismiss under this procedural rule.

So what is a “cognizable claim”? A cognizable claim is one that meets the basic criteria of viability for being tried or adjudicated before a federal court and is also within the power or jurisdiction of the court to adjudicate. Simply put, your complaint has to present a claim that the court has the constitutional authority to “hear.”

What are articulated facts? These are really the most important things to demonstrate, and they are also what are most lacking, many times, in efforts to bring serious constitutional claims on behalf of the registered population. Put simply, it is not enough to say, “This is unfair,” or, “I feel bad,” or, “I don’t understand how they could do this,” because these are not articulated facts of anything. They are merely conjectural statements about feelings.

An articulated (well stated) fact looks something like this:

Plaintiff, a registered sex offender, states that he had a well-paying job with full medical benefits while working for his former employer. The state then passed a law restricting anyone on the sex offender registry from working within 300 feet of any facility where children are schooled, instructed, or cared for. As a consequence, plaintiff lost his job and his medical insurance. He is now unemployed and recently discovered he suffers from hypertension. But for the effects caused by the state’s new law, plaintiff would still have lucrative employment and the necessary insurance to seek the medical care he needs.

There’s nothing there about feelings or fairness or conjectural harm. The harm is real, the causation is obvious, and the facts are “articulated.”

You probably expected that I might spend more time explaining the state’s motion to dismiss in the NARSOL v. Stein case and walk you through the reasons why the Court saw fit to deny it. But instead, I’ve decided to write something a bit more instructional as a guide to assist you in reading through the Court’s decision to deny the state’s motion. You will understand the process—and the Court’s reasoning—a lot better if you take the time to read Judge Biggs’ Memorandum Opinion and Order.

Otherwise, the good news is that the NARSOL v. Stein case will now move forward into the most critical phase of its development, discovery. This is where we will have an opportunity to further develop the facts, provide additional statistical support, interview possible witnesses (including expert witnesses), and frustrate the state’s efforts at preparing for battle. It should be great fun!

And thank you for your patience! “The night may seem long, but it is the part of fidelity to watch and wait for the morning” (Jeff Davis, 1866).

It’s a remarkable argument. Safety and accountability have been the ostensible watchwords in our ongoing collective discussion of sexual violence, but strong (and understandable) emotion has tended to override those concerns and diverted discourse into negative-feedback loops of ever more brutal consequences for anyone who would even be perceived to stand in the way of that punitive impulse. Just ask Aaron Perksy.

For politicians, then, few bets have been as safe as wanting to punish sex criminals harsher than the last person who spoke. Statehouse legislation proposing new and harsher restrictions for the nearly million people now on America’s sex offense registries have been as perennial as the grass in a nationwide race-to-the-bottom, regardless of whether or not those proposals were grounded in any sort of evidence. Court decisions have favored a brand of results-oriented intellectual dishonesty to conclude that registration is non-punitive and designed to enhance public safety (though with some notable exceptions), even as they turn people into permanent nomadic pariahs wholly incapable of redemption.

And so, it is indeed remarkable that Michigan Attorney General Dana Nessel made the argument that sex offender registries are exquisite punishments that undermine safety in important ways. The cases the briefs filed in People v. Betts, and People v. Snyder involve state constitutional challenges to Michigan’s sex offense registry in the context of a pair of people who were convicted of sex offenses in the mid-90’s, well before modern registration schemes were born.

The AG’s briefs make the case that Michigan’s SORA scheme is punishment, and therefore can’t be applied retroactively. That alone, that an AG would be making the argument that these laws are punishment, is remarkable enough. But these arguments go much, much further than that.

Nessel’s arguments forcefully and passionately highlight how modern registries are objectively bad public safety policy.

Modern social science research has shown that SORA’s extensive burdens are excessive in relation to SORA’s purported public safety goals. There are two salient points: 1) research refutes common assumptions about recidivism rates that supposedly justify SORA’s extreme burdens; and 2) regardless of what one believes about recidivism rates, registries are not good tools to protect the public.

Read Guy’s complete piece here at Simple Justice.

Merideth would go on to live registration free for 13 years in North Carolina where he found work, began a family, and settled into a productive, post-conviction life. In 2009, Merideth moved from Person County, NC, to Wake County, NC. Again, he paid a visit to the sheriff’s office to inquire about the possibility that he might have to register, since, by that time, NC had added the electronic solicitation of a minor to its list of registerable offenses. Still, Merideth was told by a Wake County Sheriff’s deputy that he did not need to register.

But, wait. That wasn’t the end of it after all. Merideth and his family’s lives were unalterably changed in June, 2017, when the Wake County Sheriff’s office informed him that he would have to register as a sex offender or face felony consequences for failing to do so.

Faced with the possibility of serious criminal consequences (much more serious than the out-of-state conviction for which he was now determined liable to registration), Merideth dutifully registered as a sex offender. He then contacted NCRSOL and spoke with me about his new and challenging circumstances. I promptly referred him to our attorney, Paul Dubbeling.

In October, 2017, with Dubbeling as his counsel, Merideth filed a complaint to the United States District Court for the Eastern Division of North Carolina. The case drew one of the most conservative federal judges in the nation, Terrence Boyle—a Reagan appointee and close, personal friend of the late senator and conservative stalwart, Jesse Helms.

In his complaint, Merideth alleged that his placement on NC’s sex offender registry after 13 years—having twice been informed by law enforcement in two separate counties that registration was unnecessary, and then informed by the latter county that it had changed its substantially related mind—was a violation of his Fourteenth Amendment right to procedural due process.

At issue in the case was a fairly simple question: When evaluating whether a person who was convicted in another state may be required to register as a sex offender in North Carolina (N.C. Gen. Stat. § 14-208.6(4)(c)), can local law enforcement agencies make determinations about the “substantial” similarity of another state’s statute and a comparable NC statute that is included in the list of registerable offenses without any procedural guidelines or legal process? In Judge Boyle’s estimation, the answer to that question is no.

The state’s attorneys moved for dismissal of the case in May, 2018. Their ace-in-the-hole (so they thought) was arranging to have Mr. Merideth removed from the registry in an effort to moot the case. Their argument fell flat and appeared only to exacerbate an already skeptical judge who wasn’t all too pleased by the state’s back door machinations to manipulate the Court’s jurisdictional authority. The motion to dismiss was summarily denied on grounds that the important constitutional issue raised by the complaint would continue to evade review and was likely to reoccur.

Both sides moved immediately for summary judgment on the pleadings as there were no material facts in dispute and both sides felt confident of prevailing on the merits of their arguments. The state moved for summary judgment in its favor, claiming that the plaintiff lacked standing (essentially a redux of its motion to dismiss) and that the defendants were all immune from suit under the Eleventh Amendment. In his opinion, Judge Boyle efficiently disposed of the state’s arguments and denied its motion for summary judgment outright.

In finding in favor of the plaintiff’s motion for summary judgment, Judge Boyle stated, “North Carolina’s process for requiring individuals who have committed out-of-state sex offenses to register as sex offenders in North Carolina (1) deprives plaintiff of a cognizable liberty interest and (2) the procedures protecting that interest were constitutionally inadequate.”

Judge Boyle held that it is “plainly true” that requiring an individual to register as a sex offender deprives him of substantial liberty interests as a matter of law, stating, “United States citizens have a protectable right not to be placed on the sex offender registry-not to have their legal status changed so abruptly and severely-without sufficient process,” and “Where there is no process, there can be no due process” [emphasis his].

The state’s attorneys attempted to overcome plaintiff’s motion for summary judgment by arguing that sufficient process had already been provided when Merideth was first convicted in Washington state, that the declaratory judgment he sought was inadequate to provide him relief, and that any additional process he might require was already available through the state’s registry removal options.

Judge Boyle wasn’t having any of that. “The essential components of due process are prior notice and the opportunity to be heard . . . North Carolina provides neither prior notice nor a hearing. In fact, North Carolina provides nothing at all.” Judge Boyle seemed most concerned about the arbitrary determinations of local sheriffs making legal judgments in lieu of any procedures or guidelines provided by the state. “[S]ubstantial similarity has been described as a ‘question of law’ State v. Springle, 781 S.E.2d 518, 522 (N.C. Ct. App. 2016).”

In his order, Judge Boyle granted Mr. Merideth an affirmative declaration of his right to procedural due process protection and permanently enjoined the state from:

(1) Placing plaintiff on the North Carolina Sex Offender Registry without first affording him prior notice and an opportunity to be heard;

(2) Prosecuting plaintiff for any failure to comply with any North Carolina, federal, or other law or regulation applicable solely to registered sex offenders without first affording him prior notice and an opportunity to be heard on whether his previous out-of-state offense is “substantially similar” to a reportable North Carolina conviction.

While the outcome of this remarkable case only applies to Jonathan Merideth at this time, the ramifications for a thousand or more North Carolina residents is palpable. Left to be seen is whether the state attorney general’s office will file a notice of appeal to the Fourth Circuit in Richmond. And until there is a final disposition, it’s too early to decide how best to provide relief for the rest of North Carolina’s sex offender population who were required to register for out-of-state convictions without any procedural protections.

Still, the Court’s judgment is an exceptional victory for registered sex offenders in North Carolina and provides a substantial foundation on which to build. It’s also an illustration about the important relationship between an affiliate organization and competent legal counsel to whom critical cases of opportunities such as this can be quickly referred. We owe a debt of gratitude to Mr. Merideth for his courage as a named plaintiff and to attorney Paul Dubbeling for his skilled representation and winning legal strategy. Well done!

But the state agency that oversees the current tracking system never asked for the money. And the lobbying group for the state’s sheriffs learned about the plan only shortly before the budget was approved. Sheriffs are tasked with monitoring offenders.

New money for an improved sex offender database is one of dozens of spending items tucked into a budget that for the first time in modern history never got a hearing in a legislative committee. Those hearings would have allowed the idea to be publicly vetted.

Legislative leaders in the Republican-dominated General Assembly instead released the budget bill in a conference report that was then submitted to both chambers for a yes or no vote. It passed largely along party lines and survived Democratic Gov. Roy Cooper’s veto.

The sex offender provision now represents a business opportunity for ScribSoft Holdings, the Southern California company that pushed for it.

The pitch

The idea for the database came from a lobbyist and former top aide to House Speaker Tim Moore who represents ScribSoft. He persuaded a state budget writer to include the spending weeks before the session began, when lawmakers were pulling together a $23.9 billion budget behind closed doors.

Several weeks ago, Andy Munn, a lobbyist for the company, approached Rep. Allen McNeill to pitch the need for the database. Munn, a former deputy chief of staff to Moore, told McNeill that ScribSoft’s product has been a big help to the Mecklenburg County Sheriff’s Office.

“He came to me with the fact that Mecklenburg County was redoing its sex offender registry, why they were doing it and if there was a possibility that it could be a statewide project,” McNeill said.

McNeill, a former chief deputy for Randolph County’s sheriff’s office, then secured the provision in the budget bill.

The provision calls for the North Carolina Sheriffs’ Association to hand out the money in the form of grants to “implement a statewide sex offender database that connects all 100 counties and allows for robust data entry and retrieval at the local level.”

‘Sex offenders travel’

Eddie Caldwell, the association’s executive vice president and general counsel, said it had provided no input on the provision and learned about it only within the past month. The provision was not in Cooper’s budget proposal released before the session began.

The state has an online registry managed by the SBI that the public can access to learn where sex offenders live. Sex offenders are required by state law to register their home addresses with the sheriff in that county.

The statewide registry is more than 20 years old, and there is no standardized system sheriffs use for collecting the sex offender information that they then put into the SBI system. Sheriffs in some of the smaller counties may still use paper files. That means additional information sheriffs are collecting, such as where sex offenders work, what cars they drive and places they are known to frequent, isn’t easily shared, McNeill said.

“The problem is while every sheriff has his information, the sheriff next door doesn’t have access to that, and the sheriffs across the state don’t have access to that,” said McNeill, an Asheboro Republican. “Sex offenders travel; they’re going to the beach, too, just like everyone else.”

Special Agent Wyatt Pettengill, who leads the SBI’s criminal information efforts, said he was told the money was being made available to sheriff’s departments to upgrade their in-house systems and not for a statewide database that would connect the departments.

But McNeill didn’t rule out the possibility the provision could ultimately lead to a new system that could replace the registry. It could also augment the current registry, he said.
“There is a need to have a more robust system that’s got a lot more data in it,” he said.

Caldwell said he is unaware of complaints with the SBI registry, but that wouldn’t mean there’s no opportunity to improve the tracking of sex offenders. He said he wasn’t clear what the provision would lead to, but the association has accepted handling the grant money.

Launched in Mecklenburg

The association is not a state agency, which means it would not be subject to public records laws showing how the money is allocated. Lawmakers have required the association to report on the use of the grants by July 1, 2019.

The association also doesn’t have expertise on information technology, but Caldwell didn’t find that necessary.

“We have sex offender registration experts and that would be our guide as to whether something is working well or not,” Caldwell said.

McNeill said legislative staff told him that the SBI wasn’t set up to handle the project. He also didn’t see the Governor’s Crime Commission, which is typically a conduit for state and federal grant money for law enforcement needs, as a good match.

The $24,000 that the Mecklenburg sheriff’s office spent to replace its aging sex offender tracking system came from a crime commission grant. That system, produced by a ScribSoft subsidiary called Permitium, has been in operation for about a year. Sheriff’s officials are so pleased with it that they let Permitium demonstrate it to other departments.

“The folks who do the actual registering, they like the system a lot more than the older system,” said Rachel Vanhoy, the sheriff’s business manager.

Websites for Permitium and another ScribSoft subsidiary, Scribbles, show the companies have been involved in database building and management for sheriff’s departments and schools for roughly a decade. According to Permitium’s website, it has managed gun permitting for roughly a third of the sheriffs’ offices across the state and has provided vital records processing for roughly a dozen county register of deeds offices in North Carolina.

But the Mecklenburg sheriff’s sex offender tracking system appears to be a first for the company.

Paul Blake, a managing partner with Permitium, said in an email message the company has only one client for that work, which he didn’t identify. In a brief telephone interview, he said sheriffs had asked the company to seek the appropriation.

“We were asked to actually get the money on behalf of the sheriffs,” he said, “and that’s why we kind of walked down that path.”

In the follow-up email, he said: “It is our understanding that sheriffs are required by North Carolina statute to track these offenders, and thereby we have worked to address the topic at the state level. The decision as to if and how to request a grant for this purpose is with each individual sheriff.”

Lobbyist’s clients

Efforts to interview Munn were unsuccessful. He began representing ScribSoft in March, lobbying records show, and is representing eight clients in state government matters, including American Airlines, the Carolina Panthers football team and Bank of America. Records show ScribSoft has a second lobbyist, former state Sen. Patrick Ballantine, a Wilmington Republican, in June 2017. The company paid him $5,000 last year.

The $500,000 state appropriation doesn’t show up in what’s commonly known as the “money report,” a companion document to the budget that explains new or increased spending as well as cuts. That’s because the provision takes money previously given to the crime commission to hand out to law enforcement agencies seeking to pay for body cameras.

McNeill said the agencies weren’t requesting the body-cam grants, which require a local match.

The budget provision doesn’t guarantee that ScribSoft will receive the money, McNeill said. Companies will have to put forth proposals through a bid process managed by the sheriffs’ association.
“There’s no guarantee they will get a dime of this money,” he said. “This is going to the sheriffs’ association, and they will go through the procurement process and put it out to bid, and whoever the lowest bidder is will get the project.”

McNeill said the sheriffs’ association has done an excellent job of managing the Statewide Misdemeanant Confinement Program, which manages those convicted of misdemeanors who used to be sentenced to prison but are now housed in county jails.

In 2011, lawmakers began paying the association 10 percent of the money put into a fund to pay for the confinements, or roughly $2 million annually. Two years later, lawmakers cut it back to no more than $1 million.

Since receiving that money, the association has built up more than $3.8 million in net assets, according to its most recent tax report. That’s roughly five times what it had before the program began. Caldwell said the asset growth resulted from sound financial management.

Democrats were shut out of the budget process and knew nothing about the provision until the budget bill was released. Rep. Joe John, a state appeals court judge and former director of the SBI crime laboratory, questioned why it was needed when there are state and federal sex offender databases, and no one has pointed out a problem in legislative meetings.

“It demonstrates how having a more open and transparent budget process, instead of closing a significant portion of the General Assembly out of that process, might be helpful all the way around,” said John, a Raleigh Democrat.

SOURCE: The News & Observer