The decision, covered in an opinion by Justice Kevin M. Dougherty, clears the way for county judges to resume imposing the SVP label on sex offenders who are determined to be perpetual dangers to society.

The SVP designation is a step above even the requirement imposed on some sex offenders to register with state police for life or 25 or 15 years, depending on the nature of their convictions. SVP offenders have a lifetime registration mandate as well and police additionally inform their future neighbors and local schools and daycare centers in their neighborhoods about their crimes. They also must attend monthly sex offender counseling programs until they die.

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The association said in a statement, “Butler overturns the Superior Court’s finding that our state’s Sex Offender Registration and Notification Act (SORNA) Sexually Violent Predator (SVP) lifetime registration, notification, and counseling requirements (RNC requirements) were unconstitutional. The Supreme Court found that these requirements are not punitive in nature but instead are a collateral consequence of one’s actions and mental fitness and advance public safety.”

The statement continued saying, “The Court seriously erred by finding that public notification of SVPs is constitutional, and this decision will affect over 2,000 PA registrants as well as their families and friends. Being listed on a public registry as an SVP is an unjust and dehumanizing experience. Justice Wecht said at the hearings of Commonwealth v. Thomas Reed, Commonwealth v. Claude Lacombe, and Commonwealth v. Michael Witmayer that being listed on a public sex offender registry is “the mark of Cain.” The ruling in Butler has left intact the mark of Cain for those labeled SVP.”

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The lawsuit was filed March 3 against the commonwealth, Kentucky Justice and Public Safety Cabinet as well as Probation and Parole officer Megan Goss.

Attorneys Daniel J. Canon of Saeed and Little, LLP out of Indianapolis, and Darren C. Wolff, a Louisville attorney, are representing Jones.

The lawsuit alleges Jones’ constitutional rights were violated for being required to register as a sex offender after receiving a pardon and commutation letter from former Gov. Matt Bevin.

The lawsuit states, “To counsel’s knowledge, there is no Kentucky case which squarely addresses whether a convicted felon must comply with Kentucky Sex Offender Registration Act once their sentence has been pardoned or commuted.

“However, the Kentucky Supreme Court has stated that a pardon relieves a convicted felon of ‘all the consequences which the law has annexed to the commission of the public offense of which he has been pardoned and [the convicted person] attains new credit and capacity, as if he had never committed that public offense.”

Jones’ counsel states that nothing in the pardon and commutation document suggests that Jones should have to register, noting that it would have been within the power of the governor to require him to do so.

“If forced to register under SORA, Jones’ rights under Kentucky law will be violated,” the document states.

The suit further claims that if Jones is required to register as a sex offender, he will suffer “immediate and irreparable injury, loss and/or damage.”

The suit claims Jones will suffer from registering in the form of reduced employment opportunities, severe social stigma, traveling restrictions, psychological harm and the ability to live wherever he chooses.

It also argues that Jones was granted a pardon instead of a commutation.

“On December 9, 2019, Bevin issued Executive Order No. 2019-1332, which styled ‘PARDON & COMMUTATION,’ ” the lawsuit wrote.

“Though the document clearly states that it is a ‘PARDON,’ the document simply states the fact of Jones’ conviction, and concludes that the Governor ‘hereby commute[s] the sentence of Dayton Ross Jones to time served.’

“There is no further limitation or requirement placed on Jones by the plain language of the ‘Pardon & Commutation’ document. The Secretary of State’s Website lists this document as granting an ‘unconditional pardon’ to Petitioner (Jones).”

It goes on to say that since the executive order was made by Bevin, the commonwealth has treated the document as granting a pardon.

However, on Jan. 13, the Kentucky Secretary of State’s office clarified to the New Era that the 15-year sentence of Dayton Jones was commuted, not pardoned, after the heading on the executive order was unclear.

While the lawsuit focuses largely on the commonwealth’s actions against Jones, it also accuses Goss of violating Jones’ rights.

The lawsuit alleges Goss caused a letter to be delivered to Jones’ grandparents’ house, which contained a signed notice of discharge declaring that Jones is on sex offender post-incarceration supervision.

However, Jones and his counsel say Jones had not signed the notice and had not seen it prior to Feb. 26, the date the letter was received by his grandparents.

His counsel further alleged that Goss required Jones to report to her office Feb. 28 for sex offender supervision.

In the lawsuit, Jones’ counsel requests several orders be made by Franklin Circuit Court, including a speedy hearing and declaring that Jones was granted an unconditional pardon by the former governor and doesn’t have to register, among other requests.

According to New Era archives, Jones pleaded guilty Aug. 22, 2016, to first-degree sodomy, first-degree wanton endangerment and first-degree distribution of matter portraying a sexual performance by a minor.

In November 2016, he was sentenced to 15 years in prison with no possibility of probation and a lifetime requirement to register as a sex offender upon release.

Jones, Colton Cavanaugh, Tyler Perry and Samuel Miller all pleaded guilty to the Oct. 12, 2014, sexual assault of a 15-year-old who was sodomized with a sex toy during a party. The boy suffered severe internal injuries as a result of the attack. It was also captured on video and shared on social media.

Reprinted from The Eagle Post | www.kentuckynewera.com

Copyright © 2020 Kentucky New Era

Let me be as clear as I can to anyone who happens to read this posting. North Carolina’s ban on the use of social media by registered citizens who are not otherwise on post-release supervision or probation is absolutely, unequivocally null and void having been struck down, in its entirety, by the United States Supreme Court in June, 2017 (See Packingham v. North Carolina). Any attempt by a law enforcement agent in the state of North Carolina to enforce this ban against a registered citizen who is no longer under any form of court-ordered supervision will constitute a false arrest. Pure and simple.

The mere fact that the statute remains searchable is irrelevant to questions regarding its legitimacy. There are hundreds of laws on the books that can no longer be enforced. Sheriff Harrison knows that. Most of the sheriffs in the state know that. And if they have any questions about a certain statute’s authority, they should refer such questions to the Attorney General’s office for a legal opinion. What sheriffs and their deputies should NOT do is provide false and unreliable information to the citizens living in their counties.

Will North Carolina’s social media statute be re-written and eventually re-enacted by the state Legislature? It is probable that the state Legislature will attempt to craft a replacement statute. How it can write such a statute narrowly enough to avoid additional constitutional review is yet to be seen. Anything too broadly written would be easily enjoined by a federal District Court. Anything written narrowly enough to pass scrutiny under the Packingham analysis is likely to be a fairly benign and practically useless law. And anything that’s even borderline constitutional will immediately be the subject of a new lawsuit by NCRSOL and our attorneys….and very likely enjoined before it’s ever able to take effect.

If you are a registered citizen living in North Carolina and you are no longer under any form of court-ordered supervision, you have a First Amendment right to access and use social media. There are still social media platforms that have corporate policies restricting your use. But as of June 19, 2017, the state of North Carolina and any derivative law enforcement agency of ANY jurisdiction within the state of North Carolina has absolutely no authority to arrest you for using social media.

However, you are still required to report your online identifiers!  VERY IMPORTANT.

If you are a registered citizen living in North Carolina (and no longer under ANY form of supervision) and have been informed by local law enforcement that you cannot use social media, please contact us immediately. If you or someone you know is threatened with arrest for using social media, please contact us immediately. You can find our contact information at the top of the home page.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake. The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release. In the 24 years it has existed, not a single “patient” has ever been fully released. There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness. In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal. They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.” The problem is this: The 80 percent recidivism rate is an entirely invented number.

A few years ago, Ira Ellman, a professor of law at the University of California, Berkeley, and Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

That article was written not by a scientist but by a treatment provider who claimed to be able to essentially cure sex offenders though innovative “aversive therapies” including electric shocks and pumping ammonia into offenders’ noses via nasal cannulas. The article offered no backup data, no scientific control group and no real way to fact-check any of the assertions made to promote the author’s program.

Nonetheless, because that 80 percent figure suited the government lawyers’ aim of cracking down on sex offenders, Solicitor General Olson cited it, and Justice Anthony Kennedy, seemingly without fact-checking it, adopted the figure in a 2002 opinion that Justices William Rehnquist, Antonin Scalia and Clarence Thomas joined. (Justice Sandra Day O’Connor concurred.) Their decision blew open the doors to the glut of sex offender restrictions that followed.

But in the 30 years since that Psychology Today article was published, there have been hundreds of evidence-based, scientific studies on the question of the recidivism rate for sex offenders. The results of those studies are astonishingly consistent: Convicted sex offenders have among the lowest rates of same-crime recidivism of any category of offender.

Nearly every study — including those by states as diverse as Alaska, Nebraska, Maine, New York and California — as well as an extremely broad one by the federal government that followed every offender released in the United States for three years, has put the three-year recidivism rate for convicted sex offenders in the low single digits, with the bulk of the results clustering around 3.5 percent. Needless to say, there is a tremendous difference between claiming that 80 percent of offenders will re-offend and that more than 95 percent of them won’t. And it is in that basic difference that the Supreme Court’s doctrine has done its most lasting damage.

This profound misrepresentation of social science has led to extraordinary real-world harms. For example, while the public almost universally embraces the strict residency restrictions the Supreme Court and lower courts have ratified, study after study has shown that rather than reduce sexual violence, these residency restrictions actually increase recidivism.

The merciless enforcement of the conditions routinely placed on those on the registry has resulted in the constant re-incarceration of offenders — not because they have committed new crimes but for technical violations of the conditions themselves, like failure to maintain a driving log, being late for curfew or failing to pay polygraph fees.

Indeed, a study by the California Department of Corrections concluded that 91 percent of sex offenders returned to California prisons were returned for these technical violations, while only 1.8 percent were returned as a result of having committed a new sex crime. In short, the entire scheme of registration and restriction that the Supreme Court condoned 15 years ago in McKune v. Lile has done enormous violence to a huge number of Americans now branded forever as sex offenders.

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear. The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record. More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study. Simple decency and perhaps more important, intellectual honesty demands better.

–David Feige, a television writer and a former public defender in the Bronx, is the director of “Untouchable,” a feature documentary about sex offender laws.

“All persons” include people on the registry for sex crimes according to the ruling handed down Monday. Packingham v. North Carolina analyzed the extent to which North Carolina’s draconian measure to prevent anyone on the sex offender registry from using social media was necessary and legitimate. Justice Alito mentioned in his concurring opinion that the statute was so broad that accessing Amazon and Walmart could be construed as a violation. Not only was the law extremely broad, but the facts of the case were ripe for a challenge.

In 2002, at age 21, Lester Packingham engaged in sexual wrongdoing with a minor. He was convicted and served out his sentence. Flash forward eight years to 2010, when Lester logged on to Facebook to jubilantly praise God for a dismissed parking ticket. A North Carolina detective discovered the post and arrested him for violating the state ban on accessing Facebook.

Three facts are important to remember. One, Lester was no longer under community supervision, but he was still listed on the state’s registry for sex crimes. Two, Lester was not arrested for committing another act of sexual wrongdoing, nor was he ever convicted for using the internet to engage in sexual wrongdoing. Three, over 1,000 people have been prosecuted under this law since 2008. These facts implicate the North Carolina statute as more of a tool to restrict First Amendment rights and incarcerate people, with less utility given to preventing sexual abuse.

Please read David’s full commentary on the Sex Law and Policy Center website.

It’s no joke.

This most recent Monday a UNANIMOUS Supreme Court declared unconstitutional a 2008 law that banned convicted sex offenders visiting social-networking websites that allow minors to become members or to create personal pages – including Facebook, Twitter, Instagram, or Capitol Broadcasting’s WRAL.com.

The unfortunate reality about the law the high court struck down is the laudable goal of protecting young children from sexual predators was overshadowed by enthusiasm for the upcoming general election and a desire to demonstrate candidates’ toughness and law-and-order bonafides. Little good comes from laws that have a genesis in election-year pandering. It is a truth that wears no partisan label.

The Senate bill was passed into law without a single dissenting vote in late summer 2008, amid campaigning for the general election. Sponsors included Walter Dalton, a Democrat running that year for lieutenant governor; Janet Cowell, a Democrat who was running for State Treasurer; Kay Hagan, a Democrat who later would successfully run for the U.S. Senate; as well as prominent Republicans like Tom Apodaca, who would become the powerful Senate Rules Committee chairman and Jerry Tillman who now chairs the Senate’s Finance Committee and the Joint State Lottery Oversight Committee.

The election-year posturing didn’t end with the elections of 2008. In November 2015, it was former State Supreme Court Justice Bob Edmunds, a Republican who was on the ballot for re-election, who wrote the wrong-headed state court opinion that upheld the law. He was proud enough to even brag about it: “You don’t have to guess what kind of justice I will be. My record is an open book,” Edmunds said in a campaign video citing the ruling he wrote. To their credit, two state justices — Cheri Beasley and Robin Hudson — dissented.

Democrat Roy Cooper, who was getting ready for his successful run for governor, hopped on the band wagon a year before the 2016 election: “I pushed for this law. … I am pleased that the (state Supreme) Court has agreed with our arguments to keep this law in place.” Cooper’s office didn’t issue any statement Monday, following the U.S. Supreme Court’s unanimous rejection of the law.

The ruling from the highest court of the land shouldn’t come as a surprise. To its credit, a three-judge panel (Rick Elmore, Chris Dillon and Martha Geer) of the State Court of Appeals in August 2013 ruled the law unconstitutional – and it was not a popular ruling.

In the more than eight years since the unconstitutional law went into effect the state has prosecuted more than 1,000 people for violating it, according to the U.S. Supreme Court’s opinion.

The plaintiff in this case, Lester Packingham, did nothing more than take to Facebook to post a thanks for getting a parking ticket dismissed.

It has taken nine years and four months for this bad law to have made its way through the legislative and legal process. The wasted time and money in the process, easily and sadly, amounts to millions – funds much better spent on enforcement and treatment of victims and perpetrators.

With the now clear guidance from the courts, state officials should take a more patient and thoughtful look at how to develop laws that provide access to appropriate online resources to those who are registered sex offenders. Just as important, these laws should include effective and legal ways to thwart sexual predators from inappropriate contact with youngsters via the internet and other cyber-avenues.

Since a new majority took control in 2011, more than a dozen laws passed by the General Assembly have been struck down by the federal courts. It is a sorry record that reflects a reckless disregard for our Constitution in favor of petty partisanship and the unbending desire to impose a rigid ideology on the state.

It is a wasteful pastime that gains nothing and leaves innocent victims in the wake.

If the politicians in office cannot restrain themselves from enacting unconstitutional laws, voters need to pick new ones who can.

Source: Editorial #8176, Capitol Broadcasting Corporation.

In reversing the N.C. Supreme Court’s decision in Packingham v. North Carolina, the high Court admits wading into uncharted territory by explaining that the case “is one of the first [it] has taken to address the relationship between the First Amendment and the modern Internet,” but was guided to its decision by long held and fundamental approaches to First Amendment jurisprudence.

“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ . . . [and] the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

The Court made clear that states remain within the legitimate and permissible contours of First Amendment protections whenever they seek to restrict criminal conduct. “Specific criminal acts are not protected speech even if speech is the means for their commission.” Thus, laws targeting a sex offender (or anyone else) who engages in “conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor” will continue to be constitutionally enforceable.

Stating that North Carolina had not met its burden to demonstrate that a social media ban achieved its legitimate interests in protecting children from predators, the Court held that states “may not enact [a] complete bar to the exercise of First Amendment rights on websites integral to the fabric of our modern society and culture.”

The Court appeared particularly concerned about the application of restrictive laws to citizens who “are no longer subject to the supervision of the criminal justice system” and found it “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.” The specific question before the Court in Packingham provided no opportunity for the Court to resolve this tension, but it’s a prescient concern that Justice Kennedy was keen to observe which was embraced by at least four additional justices.

NARSOL was joined by its North Carolina affiliate, NCRSOL, and the Association for the Treatment of Sexual Abusers (ATSA) on an amicus brief filed in support of the petitioner, Lester Packingham.

Molnar and her allies have considered lobbying the Legislature to ban these ordinances, but they’ve found lawmakers unreceptive in the past to any bill perceived to benefit sex offenders. So she decided to go to court.

Molnar enlisted a small army of parents and siblings of sex offenders to compile a list of towns with such ordinances, and assembled research showing that the rules can actually make the public less safe. She enlisted Denton lawyer Richard Gladden. He was already representing Taylor Rice, who as a 20 year-old had sex with a 14 year-old he met online and now, after his conviction for sexual assault, was legally barred from living with his parents because their house was too close to a high school’s baseball field. Gladden had found a 2007 opinion by then-attorney general (now governor) Greg Abbott saying that towns with fewer than 5,000 residents — which fall into a particular legal category in Texas — are not authorized by the state to enact such restrictions on their own.

Gladden sent letters threatening lawsuits to 46 city councils. Within two months, half of them had repealed their ordinances. Gladden and Molnar are currently suing 11 of the remaining towns.

Restrictions on where registered sex offenders can work, live, and visit vary widely from state to state and city to city. Over the last few years, Molnar and her counterparts in other states have come to the same conclusion: Politicians aren’t going to help them. “Who wants to risk being called a pedophile-lover?” says Robin van der Wall, a North Carolina registrant on the board of the national group Reform Sex Offender Laws.

So the activists have taken the route favored by other politically unpopular groups and turned to the legal system, where they are more likely to encounter judges insulated from electoral concerns. Their legal claims vary, but in numerous cases, reformers have argued that these restrictions associated with registration add up to a sort of second sentence, and that they are defined in a vague way that makes them difficult to abide by. In some cases, the plaintiffs have argued that individual towns have enacted restrictions above and beyond what states allow them to impose. (Please continue reading at The Marshall Project)

This article was published in collaboration with The Texas Observer.