Are We Taking The Sex Offender Label Too Far? - Rhode Island Bar ...

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have a protected liberty interest in being classified, and noted in dicta that denying sex offenders the opportunity to challenge their classification levels would deprive them of procedural due process. 31 There is also a question as to whether the AWA would constitute a violation of offenders’ substantive due process rights. While courts have been hesitant to find a substantive liberty or privacy interest in not being subjected to sex offender registration and notification requirements, 32 and they have not yet found the requirements to constitute an ex post facto law, 33 given the U.S. Supreme Court’s recent decision of Padilla v. Kentucky, in which the Court found that a criminal defendant has a constitutional right to be advised of the immigration consequences of a conviction, 34 courts may find that the AWA requirements are so invasive, stringent and unnecessary that they violate an offender’s substantive due process rights and constitute an ex post facto punishment. The AWA also contains elements that are arguably overbroad. In the proposed bills, kidnapping, with no sexual element, as well as “failure to file factual statement about an alien individual,” are listed as sex offenses triggering registration. 35 With no way of differentiating between a sexually-related kidnapping and a non-sex related kidnapping, as the current system theoretically does, the inclusion of these non-sex offenses constitutes an unconstitutionally broad portion of the AWA. 2. The Adam Walsh Act is being introduced to prevent the loss of federal grant money, yet will be far more costly to implement During the House and Senate Judiciary Committee hearings, a major selling point to implement the AWA has been the argument that implementing the legislation will prevent the loss of 10% of federal Byrne Grant money. Arguments have also been made that the costs of implementing the legislation will be minimal. Yet recent estimates have placed Rhode Island Byrne Grant funds at approximately $100,000 per year, with the costs the costs estimated at $1,715,760 for the first year. 36 Under the AWA ’s provisions, the State’s executive branch would have to look into the criminal history of every single person incarcerated at the Adult Correctional Institution and Wyatt Detention Center, as well as every person convicted of a felony to determine whether he or she qualifies as a sex offender required to If your client needs an expert business valuation… at call in a real expert. Over 2,500 0 accurate, independent and defendable valuations ations provided since the early 1980s. Decades of experience in both bench and jury trials. Leo J. 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EVERYDAY. register, even if the triggering offense was from 30 or 40 years ago. 37 Under the retroactive registration, anyone currently incarcerated or on parole/probation who has previously been convicted of a sex offense, even if the individual is currently under no obligation to register and is not currently incarcerated for a sex offense, must be identified and classified as a sex offender. 38 The State would have to spend money on: training employees to enforce and maintain the new registration and community notification system; installing and maintaining the required electronic database; additional prison space for all those charged with failing to register; court and administrative costs involved with litigating the constitutionality of the legislation; as well as litigating failure to register cases, law enforcement costs involved with stricter monitoring of all sex offenders and, presumably, legislative costs involved with amending the unconstitutional elements of the legislation. While the State has suggested that the federal government would provide partial funding to help cover the costs of the required software, it has yet to provide a specific accounting of all of the projected costs. Our current sex offender registration and community notification system is far from perfect, and there is certainly an unanswered question as to whether the system fulfills its intended purpose of preventing sexual re-offending. Yet, it is clear the proposed implementation of the AWA is not only costly and unconstitutional, but is also damaging and unnecessary for all parties involved. Instead of more accurately informing the public of the risk each sex offender poses to the community, the AWA will unnecessarily alarm, and scare, citizens for no reason. Hopefully, Rhode Island will continue to reject the proposed legislation and will one day start to focus more on educating the public about the reality of sex offenders than implementing unnecessary and harmful legislation. ENDNOTES 1 See Tewksbury, Richard & Matthews Lees, PERCEPTIONS OF SEX OFFENDER REGISTRATION: COLLATERAL CONSEQUENCES AND COMMUNITY EXPERIENCES, 26 Sociological Spectrum 309-334, 310 (2006). 2 42 U.S.C. § 16901. 3 Tewksbury & Lees (2006), supra, at 311. 4 42 U.S.C. § 16901. 5 http://www.msnbc.msn.com/id/28257294/ns/ us_news-crime_and_courts/t/police-killing-adamwalsh-solved/# 20 November/December 2011 Rhode Island Bar Journal
6 See H 8152 (R.I. 2010); S 2897 (R.I. 2010); H 5129 (R.I. 2011); S 0833 (R.I. 2011); see also Katie Mulvaney, R.I. GETS EXTENSION ON COMPLYING WITH SEX OFFENDER LAW, PROVIDENCE JOURNAL (September 22, 2009) (discussing the extensions and the problems involved with implementation). 7 Rhode Island Parole Board Sex Offender Community Notification Unit, SEXUAL OFFENDER COMMUNITY NOTIFICATION GUIDELINES, Appendix Addendum 1 (2010). 8 Id. at 9-13; R.I. Gen. Laws § 11-37.1-14. 9 R.I. Gen. Laws § 11-37.1-16. 10 Id. 11 State v. Germane, 971 A.2d 555, 579 (R.I. 2009). 12 Id. at 579-80. 13 R.I. Gen. Laws § 11-37.1-4. 14 R.I. Gen. Laws § 11-37.1-10. 15 H 5129 (R.I. 2011); S 0833 (R.I. 2011). 16 Id. 17 Id. 18 Id. 19 See U.S. Dept. of Justice, Bureau of Justice Statistics, “Prisoner Recidivism,” available at http://bjs.ojp.usdoj.gov/index.cfm?ty=datool&surl= -/recidivism/index.cfm; Matthew R. Durose, Patrick A. Langan, Erica L. Schmitt, RECIDIVISM OF SEX OFFENDERS RELEASED FROM PRISON IN 1994, BJS No. NCJ 198281 (Nov. 2003). 20 See Prescott, JJ & Jonah Rockoff, DO SEX OFFENDER REGISTRATION AND NOTIFICATION LAWS AFFECT CRIMINAL BEHAVIOR? (2008), available at http://www.law.virginia.edu/pdf/olin/0708/prescott. pdf 21 See Adkins, G., D. Huff, and P. Stageberg, THE IOWA SEX OFFENDER REGISTRY AND RECIDIVISM (2000); Schram, Donna and Cheryl D. Milloy, COMMUNITY NOTIFICATION: A STUDY OF OFFENDER CHARACTERISTICS AND RECIDIVISM (1995). 22 See Sandler, Jeffrey et al., DOES A WATCHED POT BOIL?: A TIME-SERIES ANALYSIS OF NEW YORK STATE’S SEX OFFENDER REGISTRATION AND NOTIFICATION LAW 14 Psychol. Pub. Pol’y & L. 284, 297 (2008); Prescott & Rockoff (2008), supra. 23 Howard N. Snyder, Ph.D., SEXUAL ASSAULT OF YOUNG CHILDREN AS REPORTED TO LAW ENFORCEMENT: VICTIM, INCIDENT, AND OFFENDER CHARACTERISTICS 10 (July 2000), National Center for Juvenile Justice, NCJ 182990. 24 Id. 25 See State v. Krieger, 163 Wis.2d 241, 257-58 (1991) (A survey of the Wisconsin prison system revealed that sex offenders were at a greater risk for various forms of physical, sexual and psychological abuse than inmates not convicted of sex offenses); see also 42 U.S.C. §§ 15601-02 (the Prison Rape Elimination Law); 103 DOC 519.01- 11 (the Dept. of Corrections’ Sexually Abusive Behavior Prevention and Intervention Policy); Farmer v. Brennan, 511 U.S. 825, 833 (1994) (“Being violently assaulted in prison is simply not part of the penalty that criminal offenders [should] pay for offenses against society”); NO ESCAPE: MALE RAPE IN U.S. PRISONS, Human Rights Watch, p. 59 (April 2001) (prisoners convicted of sexual offenses against minors are more likely to be targeted for sexual assault in prison than other offenders); see also Doe v. Attorney General, 426 Mass. 136, 144 (1997) (noting the possible harm of public dissemination to the offender’s earning capacity); Tweksbury (2006), supra (discussing the social stigma and collateral consequences endured by registered sex offenders). 26 See Tewksbury, Richard & Lees, Matthews, PERCEPTIONS OF SEX OFFENDER REGISTRATION: COLLATERAL CONSEQUENCES AND COMMUNITY EXPERIENCES, 26 Sociological Spectrum 309-334 (2006) (Stringent sex offender laws have been found to actually create an incentive not to conform because of the social stigma and collateral consequences of being labeled a sex offender). 27 It should be noted that Ohio was the first state to implement the AWA. 28 State v. Bodyke, 933 N.E.2d 753 (Ohio 2010). 29 Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965). 30 Germane, 971 A.2d at 578. 31 Id. at 580. 32 See Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 7-8 (2003) (in which the U.S. Supreme Court avoided a determination of whether Connecticut’s sex offender registration and community notification law violated substantive due process). 33 See Smith v. Doe, 538 U.S. 84 (2003) (in which the U.S. Supreme Court upheld Alaska’s law against an ex post facto challenge in a divided decision). 34 Padilla v. Kentucky, 130 S. Ct. 1473 (2010). 35 H 5129 (R.I. 2011); S 0833 (R.I. 2011). 36 See Justice Policy Institute, WHAT WILL IT COST STATES TO COMPLY WITH THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT?, available at http://www.justicepolicy.o-rg/images/upload/08- 08_FAC_SORNACosts_JJ.pdf 37 H 5129 (R.I. 2011); S 0833 (R.I. 2011). 38 Id. ❖ MARK A. PFEIFFER Alternative Dispute Resolution Services www.mapfeiffer.com Bringing over three decades of experience as a Superior Court judge, financial services industry regulator, senior banking officer, and private attorney to facilitate resolution of legal disputes. ARBITRATION MEDIATION PRIVATE TRIAL (401)787-6995 / adr@mapfeiffer.com / 86 State Street, Bristol, R.I. 02809 We practice only US Immigration Law with 15 years experience in • IRCA. 1-9, no-match advice for US employers • Foreign Investor, business and family visas • Visas for health care professionals • Visas for artists and entertainers Immigration Lawyer Joan Mathieu Call me if your legal advice may affect your clients’ immigration status. Protect yourself and your client 401-421-0911 • Minimizing adverse immigration consequences of crimes • Deportation/removal • All areas of immigration law – referrals welcome Member and past CFL chapter president of the American Immigration Lawyers Association. BU Law and MPA Harvard Graduate. Full resume on my web site www.immigrators.com Law offices of Joan Mathieu, 248 Waterman Street, Providence, RI 02906 Rhode Island Bar Journal November/December 2011 21
Page 1 and 2: Rhode Island Bar Journal Rhode Isla
Page 3 and 4: New Initiatives in the Practice and
Page 5 and 6: Criminal Consequences of Sending Fa
Page 7 and 8: tutional concerns because “the th
Page 9 and 10: informs an individual of the crimin
Page 11 and 12: Rhode Island National Guard General
Page 13 and 14: Preserving Tax Incentives for Chari
Page 15 and 16: ecently that help to resolve some o
Page 17 and 18: The New Scarlet Letter: Are We Taki
Page 19: The reality of sex offenders, sex o
Page 23 and 24: Lunch with Legends: Trailblazers, T
Page 25 and 26: Continuing Legal Education Update T
Page 27 and 28: BOOK REVIEW Constitution Day: Refle
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Page 31 and 32: Refusal Cases: Beyond the Basics Ro
Page 33 and 34: cles were located within the territ
Page 35 and 36: silent. At trial, the magistrate ru
Page 37 and 38: which none would ever be prosecuted
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Page 43 and 44: 6 Id. at 2. 7 Id. 5. 8 State v. Cic
Page 45 and 46: In Memoriam (cont.) served as Senat
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